Friend needs help

[Steve & Erma 36]

Ok I will try and lay all the info I know.

 

Friend is a USC and his wife is an Australian citizen.

 

He is a war time veteran.

 

Her and her 3 children came to this country about 3+ years ago on a visitors visa which was good for 3 months and never left.

 

He has legally adopted all 3 children. As far as the courts are concerned he is now considered their biological father and he is getting BC's from the state. Does that automatically make them USC?

 

She read somewhere that because he is a war time veteran she cannot be deported but was unable to confirm. Anyone know if there is truth to this?

 

She obviously doesn't have a green card and isn't supposed to be working in this country. Do they need to go through the normal IR1 process for her to become legal? Will there be issues? I know that she won't go back to Australia to wait for this to process, how will that play out?

 

As soon as he has the BC's from the state he will get them SSN numbers. Does he need to do anything with the kids?

 

This is a very weird case and I'm not 100% on where he should go from here. Thanks for any help.

[Rocio0010 5,579]

52 minutes ago, Steve & Erma said:

She read somewhere that because he is a war time veteran she cannot be deported but was unable to confirm. Anyone know if there is truth to this?

 

I have never read of something like that. And I’m the wife of a veteran. 

 

52 minutes ago, Steve & Erma said:

country. Do they need to go through the normal IR1 process for her to become legal? Will there be issues? I know that she won't go back to Australia to wait for this to process, how will that play out?

 

She’ll adjust her status within the US. And actually she shouldn’t leave because if she does, and goes with an IR-1, she’ll have to file a waiver. 

 

54 minutes ago, Steve & Erma said:

He has legally adopted all 3 children. As far as the courts are concerned he is now considered their biological father and he is getting BC's from the state. Does that automatically make them USC?

Is that how it works? Can you just “alter” a BC even if you’re not the bio dad? I’m not so sure. And no, I’m pretty sure that doesn’t automatically makes them USC because there are certain requisites for derivative citizenship, which @Mike E is very well versed on

[Timona 4,207]

1. All she needs to do is file for AOS. His veteran status doesn't confer anything. She needs to pippen down and not use this as chest thumping measure. 

2. BC cannot be changed to make kids USC. So, I'm not sure what your friend is upto with the State. There BC will remain as it was, stating Australia or wherever they were born. You can't just change it to say they were born somehere in US and boom, they're now citizens. 

3. Even for adopted kids, there's a process of adoption but their BC will always state where they were born. It will not change. 

4. How's he adopting kids whose mother is his wife? What basis is he using? I'm curious. He is automatically the step-dad upon marriage. Step-dad and adoption are two different things. 

5. Having said 4 above, the only way those kids will get legal status is if the mom's papers are also filed.

 

[Boiler 45,441]

This is really weird, why is he messing around with adoption and ignoring their immigration status.

 

I can think of a few things that might be complicating factors so I suggest he gets competent legal advice.

[Mike E 11,739]

This is a strange one.  Indeed when one adopts, the child gets a new birth certificate.  My first wife was a U.S. citizen born in the U.S. and was adopted as an infant. There was nothing on her birth certificate that indicated  she was adopted 

 

If these kids get U.S. birth certificates after being adopted, I suspect  when an attempt is made to get them passports, the state department will push back on the late registration of the birth certificates 

 

This seems to be process:  https://www.uscis.gov/adoption/immigration-through-adoption/family-based-petition-process

 

I would get legal advice before trying to bypass I-485 / I-130. 

Edited December 16, 2022 by Mike E

[Ontarkie 14,214]

~~Moved to AOS from W, S & T Visas, from IR1/CR1 P&P - the OP's friends are inside the US and will follow the AOS route.~~

[Family 3,988]

Friend needs to file I-485/I-130 for wife and the three children now. Kids will get their green cards as IR ( immediate relatives) based on the marriage. .

 

Meeting the adoption requirements ( either by Hague Convention Rules , clearly not followed here OR arguments that children are not habitual residents of Australia..gets complex). .PLUS he would have to wait another TWO years after adoption date to even try AND .between the legal fees and 3x N-600 fees..not a practical or a sound choice…

 

There is no hanky panky with new birth certificate…but friend needs a bit of clarity on next pragmatic step to get his new family on status soon. FILE Adj for all now. …

Leading Expert on military naturalization is Attorney Margaret Stock..

 

https://www.uscis.gov/adoption/after-your-child-enters-the-united-states/us-citizenship-for-an-adopted-child

Adopted children who meet the requirements of INA 101(b)(1)(E),(F), or (G) of U.S. service members or U.S. government employees, and certain children of their spouses, may automatically acquire citizenship under section 320 of the INA. This may include children of parents who are stationed and residing outside of the United States. For additional information on eligibility, see USCIS Policy Manual Volume 12, Part H, Children of U.S. Citizens, Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320).

[Steve & Erma 36]

Thank you all for the info.

 

So he needs to file an AOS (I-485) and the IR1 (I-130) which will cover the wife and kids? That is all?

 

I know this is a very screwed up situation trust me I told him that. He had a lawyer for the adoptions but didn't bother with immigration for some reason. The lawyer processed the aadoptions (yes his wife's kids) and he is currently waiting for the BC's to then get them SSN #'s which he said he has handled but I'm not sure they won't push back.

[jskibo 588]

6 hours ago, Mike E said:

This is a strange one.  Indeed when one adopts, the child gets a new birth certificate.  My first wife was a U.S. citizen born in the U.S. and was adopted as an infant. There was nothing on her birth certificate that indicated  she was adopted 

 

If these kids get U.S. birth certificates after being adopted, I suspect  when an attempt is made to get them passports, the state department will push back on the late registration of the birth certificates 

 

This seems to be process:  https://www.uscis.gov/adoption/immigration-through-adoption/family-based-petition-process

 

I would get legal advice before trying to bypass I-485 / I-130. 

Legal adoption by US Citizen will give them citizenship if they are in US and in your custody.

 

I adopted my step-daughter, she was issued a KY birth certificate that states she was born in Philippines.  Only other difference on the BC is it has a cryptic reference to the court order number at the bottom.

 

Used that birth certificate to get her US passport.

 

The reverse is a pain as Philippines won't recognize the adoption until its filed with the court in the philippines, requires an apostilled copy of the relevant sections of the KY adoption law as well as the court finding of facts and adoption order.

Edited December 16, 2022 by jskibo

[Mike E 11,739]

6 hours ago, jskibo said:

Legal adoption by US Citizen will give them citizenship if they are in US and in your custody.

Without the adoptee having LPR status?

 

6 hours ago, jskibo said:

 

I adopted my step-daughter,

Was she an LPR at the time?

 

6 hours ago, jskibo said:

she was issued a KY birth certificate that states she was born in Philippines. 

Interesting 

[Cathi 5,745]

I'm with @Mike E 

These kids have no immigration status and I am wondering how they go from being here illegally to citizens without addressing their immigration and green card status.

[SalishSea 17,801]

Can a person's birthplace be legally changed on a BC, the way the names of the parents can?

[discoverusa 258]

I don't know about the children, something seems off. I hope adoption and BC was obtained correctly. I am obviously not familiar with the process. I wish your friend made an account on Visa journey to explain about the adoption. I would be interested in learning about this. 

 

Adjustment of status for wife should be straightforward. 

[jan22 3,049]

12 hours ago, jskibo said:

Legal adoption by US Citizen will give them citizenship if they are in US and in your custody.

. . .

Legal adoption by a US citizen will not, on its own, grant US citizenship to a child, even if it is done in the US while the children are in the US.  It is possible to adopt a child for whom you then become legally responsible, and not have that adoption qualify for immigration purposes.

 

The primary missing piece here, under the Child Citizenship Act of 2000 (CCA), is that the children have to have been admitted to the US as Legal Permanent Residents before they can possibly acquire US citizenship.  That missing piece can be met by filing an I-130 and I-485 for each child.  Once the AOS is approved, IF the adoption meets the requirements of an adoption for immigration purposses AND all the requirements of the CCA are being met, the children will attain US citizenship.

 

There is insufficient information in the original post to determine if the adoption meets the requirements for immigration and whether all of the other requirements of the CCA are met and will continue to be met. For example there are questions about the following, at a minimum:

         How old are the children?

          How old were they when their mother married him?

          When did the US citizen receive legal custody of the children?

          What was the date of the final adopton decree?

          Is there a biological father still in the picture and, if so, did he sign off for the adoption?

 

IMO, it is time/past time to consult a good imitation attorney in addition to the family law attorney.  If the adoption decree does not meet the legal requirements of an adoption for immigration purposes, does he still qualify to immediately file AOS for them as their stepfather?  Or, if the only impediment to filing as the adoptive father is the two-year legal custody issue, must he wait to file?  If it's recommended that he wait to file, can he file for his wife and once her AOS is approved, she file for the children? There are undoubtedly other questions or avenues to pursue that an immigration lawyer might raise.

 

There may be difficulties get SSNs for the children also.  The new birth certificates, in most if not all states, will reflect the actual place of birth.  SSA will then ask for the DHS paperwork documenting the child's entry into the US.  Identity must also be proven -- most likely that will need to be the children's passports -- again resulting in a request for the DHS entry documents.

Edited December 16, 2022 by jan22

[Steve & Erma 36]

@jan22 are you saying that he will have to file an AOS and I-130 for each kid and his wife?

 

I know the oldest is 19 right now and the others are 2-4 years behind her. They were married August 2016 in Australia. I am not sure what your definition of custody is as they have lived together since before he and his wife married. I believe the adoption was finalized this year. Lastly, I believe the bio dad has nothing to do with the kids and I would assume he signed off. I will pose these questions to him and get back to you but I believe I am pretty close to my answers.

 

@jskibo can you answer Mike's questions, I am interested in that info as well.