How does a 16 y.o. child of citizen in US on ESTA get citizenship from father living in the US

[Lulu Shaw 0]

A 16 year old friend is in the US on an ESTA from Hungary, living with his father who is a citizen. We believe he should be able to get citizenship from his father, but not sure about the process.

 

[Just Paul 4,595]

If the mother (or father) filed a CRBA when born - or up to 18 years old - the child would already have proof of citizenship.

[Lulu Shaw 0]

The  father just became a naturalized citizen last year

[Ontarkie 14,432]

The father needs legal custody and the child needs to have entered with the proper visa. Once leading to a green card. ESTA does not cut it. 

Edited September 1, 2020 by Ontarkie

[SusieQQQ 11,587]

20 minutes ago, Lulu Shaw said:

A 16 year old friend is in the US on an ESTA from Hungary, living with his father who is a citizen. We believe he should be able to get citizenship from his father, but not sure about the process.

 

The requirements for automatically obtaining citizenship for a child under 18 are that the child entered on an immigrant visa/adjusted to green card, is living in the legal and physical custody of the  USC parent in the US , and is under 18. He did not enter on the correct visa for this, and it is not clear whether he is in the legal custody of the father. So he cannot do it as is. The father would need to apply for an immigrant visa /green card for his son, and he would also need to establish legal custody (they are VERY sticky on this - it needs to be a court order, or proof of death of other parent, or similar legal document. Not just notarized permission from the other parent.)

 

 

Edited September 1, 2020 by SusieQQQ

[mushroomspore 3,044]

22 minutes ago, Lulu Shaw said:

A 16 year old friend is in the US on an ESTA from Hungary, living with his father who is a citizen. We believe he should be able to get citizenship from his father, but not sure about the process.

 

https://www.uscis.gov/citizenship/learn-about-citizenship/i-am-the-child-of-a-us-citizen

According to this link and since the kid is present in the US, the kid needs to be a permanent resident first and his father must have full legal custody of him. He cannot adjust status due to having entered on a non-immigrant visa. He'll have to go back home and wait for his dad to file the correct visa AND show proof of full legal custody. If the kid's mom is alive, that means his dad needs official permission from her that has also been approved by the courts etc.

 

In other words, to answer your question in the thread title: he cannot.

Edited September 1, 2020 by mushroomspore

[NancyNguyen 1,658]

33 minutes ago, Lulu Shaw said:

A 16 year old friend is in the US on an ESTA from Hungary, living with his father who is a citizen. We believe he should be able to get citizenship from his father, but not sure about the process.

 

He can't until he is admitted as a green card holder.

[Lulu Shaw 0]

Thanks for the responses.  They are helpful.

[Lulu Shaw 0]

Would father be able to file I130 and I45 while 16 y.o. is in USA on ESTA

[Lulu Shaw 0]

Would US citizen father be able to file I130 and I485 while 16 y.o. is in USA on ESTA

[carmel34 3,654]

6 minutes ago, Lulu Shaw said:

Would US citizen father be able to file I130 and I485 while 16 y.o. is in USA on ESTA

His USC father can file the I-130 petition any time, now or later, doesn't matter if the son is in the US or not.  The 16 year old son will have to return to his home country before his authorized stay ends (I-94), to wait out the process, and can try to visit again for short periods of time while waiting for an immigrant visa via consular processing abroad.  Legal approval of the mother may be needed as well.

[Just Paul 4,595]

44 minutes ago, Lulu Shaw said:

Would US citizen father be able to file I130 and I485 while 16 y.o. is in USA on ESTA

No  ESTA is not a visa.  The father should file the I-130 sooner rather than later.   After 21 the beneficiary is no longer a child and filing then the wait will be longer.    

There are not any shortcuts other then going back in time and either having the child on the original petition or the father filing for the child as an LPR.

[aaron2020 11,651]

1 hour ago, Lulu Shaw said:

Would US citizen father be able to file I130 and I485 while 16 y.o. is in USA on ESTA

Under the Child Citizenship Act, the child would need to be a legal permanent resident (green card holder) who is under age 18 who is living with his USC father in order to derive US citizenship.

 

IGNORE ALL THOSE WHO SAY HE HAS TO LEAVE THE US.  He can adjust status in the US with the I-130 and I-485 as an Immediate Relative of a USC. 

[aaron2020 11,651]

1 hour ago, Lulu Shaw said:

Would US citizen father be able to file I130 and I485 while 16 y.o. is in USA on ESTA

Under the Child Citizenship Act, the child would need to be a legal permanent resident (green card holder) who is under age 18 who is living with his USC father in order to derive US citizenship.

 

IGNORE ALL THOSE WHO SAY HE HAS TO LEAVE THE US.  He can adjust status in the US with the I-130 and I-485 as an Immediate Relative of a USC. https://www.uscis.gov/sites/default/files/document/memos/2013-1114_AOS_VWP_Entrants_PM_Effective.pdf

Edited September 1, 2020 by aaron2020

[Just Paul 4,595]

9 minutes ago, aaron2020 said:

Under the Child Citizenship Act, the child would need to be a legal permanent resident (green card holder) who is under age 18 who is living with his USC father in order to derive US citizenship.

 

IGNORE ALL THOSE WHO SAY HE HAS TO LEAVE THE US.  He can adjust status in the US with the I-130 and I-485 as an Immediate Relative of a USC. 

The child does not hold a green card.