Passport through U.S. Citizen Parent

[To_the_moon 94]

My parents divorced when I was a kid and I stayed with my mother while my father moved to the U.S. My father became a U.S. citizen and I immigrated when I was 16 years old and got my Green Card. I'm now 24 and finally decided to obtain a U.S. passport. For those wondering why I did not obtain my passport earlier, I'll just say it wasn't that easy. My home country does not allow dual citizenship and I had to visit my mother once in a while, so I was okay with my Green Card. But now my national passport is about to expire, so I decided to get a U.S passport. I applied a few months ago (even though I paid for the expedited service, which is supposed to be 4-6 weeks and I still haven't gotten my passport). They asked for my parents divorce certificate and evidence of legal and physical custody. I provided a lot of evidence for the physical custody, which was easy to collect, such as medical records, tax documents, school records that specify my father as my guardian. For the legal custody, I translated and notarized my mother's written agreement that states that she gives her permission for me to live with my father, which was written when I was leaving my home country at the age of 16. However, nothing happened for months, and my application was still "in process" according to the Passport Center website. I wrote them a letter and received a phone call a few days later. They said that I provided proof for the physical custody but they need a court decision specifying legal custody. I explained that my home country does not give such court decision when parents divorce, unless there is a disagreement and one parent sues another. They said that they need to talk to their legal department to resolve this issue and see if my documents would be sufficient. 

 

Just wanted to ask if anyone had the same problem and how it resolved for you? What documents did you provide for the legal custody? And how long did this process take for you?

[Mike E 11,739]

2 hours ago, Husky_Rescue said:

need a court decision specifying legal custody. I explained that my home country does not give such court decision when parents divorce, unless there is a disagreement and one parent sues another.

Your country of citizenship might matter. See https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html

 

 

[SusieQQQ 11,586]

Not sure there is much more you personally can do but wait and hope it resolves in your favor. The manual is clear that a court order or equivalent is normally required - I guess the final sentence in this extract is what might get it for you:

 

Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:^[8]

• A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;

• A biological child who currently resides with a surviving biological parent, if the other parent is deceased;

• A biological child born out of wedlock who has been legitimated and currently resides with the parent;

• An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;^[9]

• A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.

USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.

 

[To_the_moon 94]

12 hours ago, Mike E said:

Your country of citizenship might matter. See https://travel.state.gov/content/travel/en/us-visas/Visa-Reciprocity-and-Civil-Documents-by-Country.html

 

 

I did not find anything unusual for my country of citizenship. Also, I translated and notarized all documents here in the U.S., by a U.S. notary.

Thanks for your reply!

[To_the_moon 94]

4 hours ago, SusieQQQ said:

Not sure there is much more you personally can do but wait and hope it resolves in your favor. The manual is clear that a court order or equivalent is normally required - I guess the final sentence in this extract is what might get it for you:

 

Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:^[8]

• A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;

• A biological child who currently resides with a surviving biological parent, if the other parent is deceased;

• A biological child born out of wedlock who has been legitimated and currently resides with the parent;

• An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;^[9]

• A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.

USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.

 

Thanks for your reply!

Bad thing they don't specify this kind of information before applying for passport. In that case, we could have at least done some research and tried to obtain additional documentation from my home country when I was leaving. But now I am an adult and there is no way my mother can provide custody agreement for me since I'm not a minor. Most people don't get to know this requirement until they receive an RFE.

Edited March 12, 2021 by Husky_Rescue

[To_the_moon 94]

Also, I don't understand the point of double checking the legal custody and being so bureaucratic about it. If I already entered the country under IR-2 visa, doesn't that mean that the immigration agency has already approved my father's sole custody? If no, why did they let me into the country? If yes, why do they want to start all over again and do not grant authority to the immigration agency people (which I believe are way stricter than the passport issuance people). 

 

Obviously, I was a minor at the time I was issued an IR-2 visa and my mother had to attend the interview with me and sign all legal documents authorizing my living with my father. 

[SusieQQQ 11,586]

6 hours ago, Husky_Rescue said:

Also, I don't understand the point of double checking the legal custody and being so bureaucratic about it. If I already entered the country under IR-2 visa, doesn't that mean that the immigration agency has already approved my father's sole custody? If no, why did they let me into the country? If yes, why do they want to start all over again and do not grant authority to the immigration agency people (which I believe are way stricter than the passport issuance people). 

 

Obviously, I was a minor at the time I was issued an IR-2 visa and my mother had to attend the interview with me and sign all legal documents authorizing my living with my father. 

There are plenty of cases here where what was good enough for an immigrant visa is not good enough for citizenship. There is no absolute requirement at all for legal custody to get a visa, even an immigrant visa - often a notarized statement giving permission for the visa is enough, sometimes even less than that depending on the country’s law. There is however such a legal requirement to acquire citizenship. And my own experience and others can inform you that no, the “immigration agency people” are not stricter than the “passport issuance”  people. I had to get a DNA test for my daughter because the birth certificate that was good enough for her immigrant. visa wasn’t good enough to prove the relationship for citizenship. A number of others here had to sort out the same kind of custody proof issues that you are dealing with. Becoming a citizen is a way bigger privilege than getting a visa and the bar is therefore higher. You may not like it, but it’s law.

 

6 hours ago, Husky_Rescue said:

Bad thing they don't specify this kind of information before applying for passport

 They do actually say (page 2 of the form) that you need evidence of legal custody if claiming citizenship through the naturalization of a parent.

[To_the_moon 94]

4 minutes ago, SusieQQQ said:

There are plenty of cases here where what was good enough for an immigrant visa is not good enough for citizenship. There is no absolute requirement at all for legal custody to get a visa, even an immigrant visa - often a notarized statement giving permission for the visa is enough, sometimes even less than that depending on the country’s law. There is however such a legal requirement to acquire citizenship. And my own experience and others can inform you that no, the “immigration agency people” are not stricter than the “passport issuance”  people. I had to get a DNA test for my daughter because the birth certificate that was good enough for her immigrant. visa wasn’t good enough to prove the relationship for citizenship. A number of others here had to sort out the same kind of custody proof issues that you are dealing with. Becoming a citizen is a way bigger privilege than getting a visa and the bar is therefore higher. You may not like it, but it’s law.

We obviously talk about the same thing but from different perspectives. For my home country, obtaining any type of visa to the U.S. is a miracle and that's why I assumed it should have been hard enough and I already went through the hardest part of the process. Also, I didn't just get a visa, I got an LPR. In that instance, do they give an LPR to children without assuming parent's legal custody?

 

4 minutes ago, SusieQQQ said:

 They do actually say (page 2 of the form) that you need evidence of legal custody if claiming citizenship through the naturalization of a parent.

They don't specify which type of evidence would be sufficient for them on the form. I guess it's on case by case basis. I provided all evidence, as requested, but only the RFE said it should be a court order or equivalent. 

 

Also, I'm no longer a minor so I can't get a court custody decree. At the same time, I tried to naturalize on my own by living more than 5 years on LPR, and they said I can't do that because I'm already a citizen through my parent, so I just need to apply for passport or certificate. So I just don't know what to do if they deny my passport application. 

[SusieQQQ 11,586]

1 hour ago, Husky_Rescue said:

We obviously talk about the same thing but from different perspectives. For my home country, obtaining any type of visa to the U.S. is a miracle and that's why I assumed it should have been hard enough and I already went through the hardest part of the process. Also, I didn't just get a visa, I got an LPR. In that instance, do they give an LPR to children without assuming parent's legal custody?

Like i already said - yes, proof of legal custody is not always a prerequisite for an immigrant visa (LPR), non-court ordered permission from the other parent is often sufficient for that - as it seems to have been in your case -  and we have also seen a number of instances of that here on VJ.

 

I am not giving you a "perspective". I am just informing you what the law says.