Derivative Citizenship & Passport Application

[PassportJoe 2]

I am looking for advise on how to proceed.

 

My daughter was born in Canada on November of 1997 and was under 18 at the time that the Child Citizenship Act (CCA) came into effect in 2001.  She turned 18 in November 2015.  She  is US Permanent Resident and has held a green card since 2008.  I (her father) am a US citizen (since birth) and was at the time she became a permanent resident.  We have resided together in the US since October 2007.

 

It is my understanding that she became a US citizen automatically on the day she became a permanent resident.  

 

We recently applied for a passport and received a letter from Department of State requesting a certificate of Citizenship or if unavailable a "notarized affidavit from your US Citizen parent detailing periods and places of his/her physical presence in the United States prior to your birth."  I fail to see relevance of this as under the CCA she would have acquired citizenship automatically when she became a permanent resident.   

 

Any thought on how we should proceed?

[Coco8 1,042]

Permanent residents are not citizens. Permanent residents cannot hold US passport. They have passports from their country of origin.

 

Maybe I am missing something. How did she get a green card?

 

If she has had a green card since 2008 she can apply for citizenship. It is weird she has green card because she could have had citizenship because her father is US citizen. 

[PassportJoe 2]

We moved to the US in 2008 and have lived here ever since.  We applied for a green card when we moved here and it was granted.   

 

Here is the applicable law on how children born outside the US acquire citizenship automatically.  

 

 

TITLE I--CITIZENSHIP FOR CERTAIN CHILDREN BORN OUTSIDE THE UNITED STATES 

SEC. 101. AUTOMATIC ACQUISITION OF CITIZENSHIP FOR CERTAIN CHILDREN BORN OUTSIDE THE UNITED STATES.

 

(a) IN GENERAL- Section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows: 

“CHILDREN BORN OUTSIDE THE UNITED STATES AND RESIDING PERMANENTLY IN THE UNITED STATES; CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED 

“SEC. 320. (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled: 

“(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization. 

“(2) The child is under the age of eighteen years. 

“(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence. 

[Lenchick 133]

23 minutes ago, PassportJoe said:

I am looking for advise on how to proceed.

 

My daughter was born in Canada on November of 1997 and was under 18 at the time that the Child Citizenship Act (CCA) came into effect in 2001.  She turned 18 in November 2015.  She  is US Permanent Resident and has held a green card since 2008.  I (her father) am a US citizen (since birth) and was at the time she became a permanent resident.  We have resided together in the US since October 2007.

 

It is my understanding that she became a US citizen automatically on the day she became a permanent resident.  

 

We recently applied for a passport and received a letter from Department of State requesting a certificate of Citizenship or if unavailable a "notarized affidavit from your US Citizen parent detailing periods and places of his/her physical presence in the United States prior to your birth."  I fail to see relevance of this as under the CCA she would have acquired citizenship automatically when she became a permanent resident.   

 

Any thought on how we should proceed?

She could have been a citizen at birth if certain requirements are met. Why didn't you apply for a report of birth abroad? That's probably why they are asking you for the evidence of your presence in the US.

[PassportJoe 2]

4 minutes ago, Lenchick said:

She could have been a citizen at birth if certain requirements are met. Why didn't you apply for a report of birth abroad? That's probably why they are asking you for the evidence of your presence in the US.

She was not a US citizen at birth as I did not meet the residence requirements needed prior to her birth to convey citizenship that way.  Her mother is Canadian.

[Lenchick 133]

4 minutes ago, PassportJoe said:

She was not a US citizen at birth as I did not meet the residence requirements needed prior to her birth to convey citizenship that way.  Her mother is Canadian.

Do you reside now in the US?

[PassportJoe 2]

2 minutes ago, Lenchick said:

Do you reside now in the US?

Yes.

[Lenchick 133]

2 minutes ago, PassportJoe said:

Yes.

I know it is expensive  but just apply for the certificate of citizenship to avoid future troubles. She should derive the citizenship from you, it looks like.  Did you submit all the needed documents? The passport offices are not USCIS. Who knows what they assumed. Maybe they thought she still resides in Canada?

Besides N-600, there is also N-600K Under Section 322. 

[Lenchick 133]

58 minutes ago, PassportJoe said:

I am looking for advise on how to proceed.

 

My daughter was born in Canada on November of 1997 and was under 18 at the time that the Child Citizenship Act (CCA) came into effect in 2001.  She turned 18 in November 2015.  She  is US Permanent Resident and has held a green card since 2008.  I (her father) am a US citizen (since birth) and was at the time she became a permanent resident.  We have resided together in the US since October 2007.

 

It is my understanding that she became a US citizen automatically on the day she became a permanent resident.  

 

We recently applied for a passport and received a letter from Department of State requesting a certificate of Citizenship or if unavailable a "notarized affidavit from your US Citizen parent detailing periods and places of his/her physical presence in the United States prior to your birth."  I fail to see relevance of this as under the CCA she would have acquired citizenship automatically when she became a permanent resident.   

 

Any thought on how we should proceed?

I guess there are not always competent people at passport offices. I found another thread from someone who faced the same problem. You can read it here http://www.***removed***/forum/showthread.php/211147-affidavit-of-parent-physical-presence-and-residence-in-the-United-States

 

Please share how it will work out for you because soon I will go through the same process.

 

 

[Jojo92122 1,924]

43 minutes ago, Coco8 said:

Permanent residents are not citizens. Permanent residents cannot hold US passport. They have passports from their country of origin.

 

Maybe I am missing something. How did she get a green card?

 

If she has had a green card since 2008 she can apply for citizenship. It is weird she has green card because she could have had citizenship because her father is US citizen. 

You're missing the Child Citizenship Act.

 

Child born abroad to US citizens are not always entitled to US citizenship at birth.

[Jojo92122 1,924]

Provide the notarized affidavit to satisfy the RFE.  

 

Provide a copy of the Child Citizenship Act and document how your daughter met them; green card, your US passport, and middle or high school records showing she lived with you.  Show that she automatically obtained US citizenship by meeting the 4 requirements of the CCA before age 18.

[PassportJoe 2]

3 minutes ago, Jojo92122 said:

Provide the notarized affidavit to satisfy the RFE.  

 

Provide a copy of the Child Citizenship Act and document how your daughter met them; green card, your US passport, and middle or high school records showing she lived with you.  Show that she automatically obtained US citizenship by meeting the 4 requirements of the CCA before age 18.

Thanks JoJo.  That is my plan.  

[Lenchick 133]

4 minutes ago, Jojo92122 said:

You're missing the Child Citizenship Act.

 

Child born abroad to US citizens are not always entitled to US citizenship at birth.

you need to read his post carefully. His daughter automatically  derived  citizenship under Child Citizenship Act 2000 from his explanation.

 

https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter4.html

 

[PassportJoe 2]

Ok. Took a while but at last passport arrived today. Had to write them and explain the law. I included copies from foreign affairs manual regarding her claim to citizenship.

 

7 FAM 1159.1  Evidence of Citizenship for Children Born Abroad to U.S. Citizen Parent(s) Under INA 320 as amended by the Child Citizenship Act of 2000  

(CT:CON-523;   07-08-2014)

a. Who Qualifies for U.S. Citizenship under this Statute:  A child under the age of 18 (born on or after February 28, 1983) on February 27, 2001, who claims citizenship through the naturalization of a parent or child born abroad to U.S. citizen(s) who cannot transmit citizenship under any other section of the INA.

b. Who Does Not Qualify for U.S. Citizenship:  Individuals who are 18 years of age or older on February 27, 2001, do not qualify for U.S. citizenship under this new law:

(1)  If claiming by virtue of a parent’s or parents' naturalization, they must be adjudicated in accordance with INA 321, as originally enacted.  Individuals claiming citizenship under INA 320, as amended, through a U.S. citizen parent who could not otherwise transmit citizenship have no predecessor statute under which to acquire citizenship;

(2)  However, individuals who cannot acquire citizenship under INA 320, as amended, may apply to USCIS for naturalization in their own right (as opposed to automatic acquisition through the expeditious CCA process); and

(3)  The inability to acquire citizenship under the new statute does not affect the validity of the individual's LPR status.

c.  Documenting an Individual's Status as a U.S. Citizen under Section 320 INA:  Parents of children who meet the conditions for automatic acquisition of citizenship under the CCA may apply for either or both of the following to document the child’s status as a U.S. citizen:

(1)  A Certificate of Citizenship from USCIS; and

(2)  A U.S. passport from the Department of State.

d. There is no requirement that the child be documented in order to acquire U.S. citizenship.  After the effective date of the statute, individuals who meet the statutory requirements are U.S. citizens when the last of the conditions required by the statute are met.  They may be documented as such at any time.

e. Statutory requirements (for all children):  A foreign-born child automatically acquires U.S. citizenship when all of the following have been met, regardless of the order:

(1)  The child has at least one United States citizen parent (by birth or naturalization);

(2)  The child is under 18 years of age (born on or after February 28, 1983); and

(3)  The child is residing in the United States in the legal and physical custody of the United States citizen parent, pursuant to a lawful admission for permanent residence;

(a)  Children residing with a surviving U.S. citizen natural parent (if the other parent is deceased) are presumed to be in that parent's legal and physical custody upon presentation of the deceased parent's death certificate;

(b)  Children whose parents are legally separated must be in the full or joint custody of the U.S. citizen parent.  In the case of joint custody, physical custody is implied regardless of the actual physical custodial situation; and

(c)  Children born out of wedlock must be in the physical and legal custody of the naturalizing parent.  If the parent naturalized is the father, the father must legitimate the child pursuant to the law of either the child’s residence or domicile or the father’s residence or domicile pursuant to INA 101(c)(1).  Mothers need not legitimate children.

f.  Documentary Requirements - Evidence of INA 320(a) Claim:

(1)  The child’s birth certificate or record with the seal of the issuing office and the names of the parents;

(2)  Marriage certificate of child’s parents (if applicable) with seal of issuing office;

(3)  Evidence of U.S. citizenship of parent (i.e., birth certificate, naturalization certificate, Form FS-240, a valid or unexpired U.S. passport, or certificate of citizenship);

(4)  In the case of divorce, or legal separation, documentation of legal custody; and

(5)  Evidence of Permanent Residence Status:

(a)  Permanent Resident Card/Alien Registration Card (LPR card);

(b)  Foreign passport containing the original stamp (I-551) showing evidence of lawful admission to the United States for permanent residence;

(c)  If the applicant cannot present his or her LPR card, or a foreign passport containing the I-551 stamp, he or she must be referred to USCIS for verification of lawful entry; and

(d)  Secondary evidence such as an approved petition for immediate relative, school records, doctor's records, airline tickets, etc. are not acceptable for purposes of the statute.  Such documents should not be solicited or accepted because what is needed is the verification of admission for lawful permanent residence.

NOTE … It does not matter in which order the law's requirements are met. A child who is presently in the United States as a Lawful Permanent Resident Alien (LPR) automatically becomes a citizen if a parent naturalizes as U.S. citizen subsequent to the child's admission as an LPR while the child is under the age of 18.   Similarly, a child who adjusts status to an immigrant having been initially admitted as a nonimmigrant, can avail him or herself of the benefits of CCA if residing in the United States in the legal and physical custody of a U.S. citizen parent.   On the other hand, a child whose parent naturalizes in the United States after the child has left the country as an LPR, does not automatically naturalize.  The child would have to return to the United States as an LPR.  Citizenship would then accrue automatically once the child was in the United States as an LPR in the legal and physical custody of a citizen parent, while under the age of 18.   NOTE:  As U.S. citizens they are not required to remain in the United States for any specified period of time in order to retain the citizenship they acquired under INA Section 320. NOTE:  A certificate of citizenship issued by USCIS is not a prerequisite to the issuance of the passports, assuming that the child was admitted as an LPR in the legal and physical custody of a U.S. citizen parent.

Then received correspondence requesting proof that she resided with me. Sent school transcripts, medical records, tax returns with her claimed as a dependent. That did the trick.