How does my k2 Step-son become a citizen? He already has AOS to Permanant Resident for almost a year

[EriLupGus 0]

My Stepson is 13.  We are in California. He came here on a K2 and got his AOS almost a year ago.   I would like to get him his citizenship. It's not clear to me what I need to do to make that happen. 

 

My assumption is I need to adopt him first.  Since he is not USA born, is the adoption process different?  

Once the adoption is finalized, what are the steps to citizenship?  Or is it automatic once it's final?

 

 

 

 

[nastra30 2,287]

1 hour ago, EriLupGus said:

My Stepson is 13.  We are in California. He came here on a K2 and got his AOS almost a year ago.   I would like to get him his citizenship. It's not clear to me what I need to do to make that happen. 

 

My assumption is I need to adopt him first.  Since he is not USA born, is the adoption process different?  

Once the adoption is finalized, what are the steps to citizenship?  Or is it automatic once it's final?

 

 

 

 

You don't want to wait for him to gain citizenship through the biological parent when they naturalize in two years?

[EriLupGus 0]

1 hour ago, nastra30 said:

You don't want to wait for him to gain citizenship through the biological parent when they naturalize in two years?

Hi, 

I'm not sure what you mean? 

[nastra30 2,287]

5 minutes ago, EriLupGus said:

Hi, 

I'm not sure what you mean? 

Where's the biological parent of the child? Isn't it your spouse?

[EriLupGus 0]

1 minute ago, nastra30 said:

Where's the biological parent of the child? Isn't it your spouse?

Yes, his mom is my wife.   I understand that if my wife decides to naturalize, he can gain citizenship through her.  She is undecided about doing that for the moment. However, we for sure want him to get citizenship.

 

I am understanding that if I adopt him, the citizenship process may be easier and sooner. I read something that I was understanding to mean that once the adoption is complete, since he is under 16 citizenship is automatic as long as I am a citizen, we live in the US etc. Not sure if that is accurate and even if it is accurate, not sure what forms to file etc.

 

Any info on that?

 

 

 

 

 

[nastra30 2,287]

26 minutes ago, EriLupGus said:

Yes, his mom is my wife.   I understand that if my wife decides to naturalize, he can gain citizenship through her.  She is undecided about doing that for the moment. However, we for sure want him to get citizenship.

 

I am understanding that if I adopt him, the citizenship process may be easier and sooner. I read something that I was understanding to mean that once the adoption is complete, since he is under 16 citizenship is automatic as long as I am a citizen, we live in the US etc. Not sure if that is accurate and even if it is accurate, not sure what forms to file etc.

 

Any info on that?

 

 

 

 

 

You can adopt. There's a 2+ years legal and physical custody requirements to meet.

Is the other biological parent giving up parenthood for good?

Edited June 19 by nastra30

[EriLupGus 0]

2 minutes ago, nastra30 said:

You can adopt. There's a 2+ years legal and physical custody requirements to meet. Is the other biological parent giving up parenthood for good?

His biological father died before he was born.   What does 2+years legal and physical custody mean?  Him and his mom have lived with me 5 years. 1.5 years married in the USA. Is that what you are referring to? 

[nastra30 2,287]

9 minutes ago, EriLupGus said:

His biological father died before he was born.   What does 2+years legal and physical custody mean?  Him and his mom have lived with me 5 years. 1.5 years married in the USA. Is that what you are referring to? 

Seems you meet the 2 year physical custody. But you lack the 2 year legal custody. Legal custody is typically a court order or formal grant from a govt entity.

Edited June 19 by nastra30

[EriLupGus 0]

4 minutes ago, nastra30 said:

Seems you meet the 2 year physical custody. But you lack the 2 year legal custody. Legal custody is typically a court judgment or formal grant from a govt entity.

Does him being my stepchild the last year and a half count toward legal custody?  Can you clarify why 2 years of legal custody is required for adoption? Where are you seeing that requirement? And to who does it need to be proven? US Adoption court? or?

[nastra30 2,287]

5 minutes ago, EriLupGus said:

Does him being my stepchild the last year and a half count toward legal custody?  Can you clarify why 2 years of legal custody is required for adoption? Where are you seeing that requirement? And to who does it need to be proven? US Adoption court? or?

No, you are misunderstanding me. You don't need 2+ year legal custody for adoption. You need 2+ years legal custody for him to get citizenship through you. 

So the act of adoption itself gives you legal custody of the child. But for immigration benefits you must have legal custody/adopted for 2+ years.

Edited June 19 by nastra30

[EriLupGus 0]

1 minute ago, nastra30 said:

No, you are misunderstanding me. You don't need 2 year legal custody for adoption. You need 2+ years legal custody for him to get citizenship through you. 

So the act of adoption itself gives you legal custody of the child. But for immigration benefits you must have legal custody/adopted for 2+ years.

I see.  So being his stepfather for the last 1.5 years does not count toward legal custody at all? Legal custody only begins at the point of adoption? 

[nastra30 2,287]

Just now, EriLupGus said:

I see.  So being his stepfather for the last 1.5 years does not count toward legal custody at all? Legal custody only begins at the point of adoption? 

Usually a court order or by a govt entity. It has to be formal. Adoption by itself is a formal order by a court. But that's not only way, it's just the most typical way. So again by a court order or formal grant by a govt entity for legal custody.

[nastra30 2,287]

22 minutes ago, EriLupGus said:

Where are you seeing that requirement?

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

 

https://www.uscis.gov/policy-manual/volume-5-part-e-chapter-2

 

https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-2

 

ina 101(b)(1)(e)

http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1101&num=0&edition=prelim

 

[EriLupGus 0]

13 minutes ago, nastra30 said:

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

 

https://www.uscis.gov/policy-manual/volume-5-part-e-chapter-2

 

https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-2

 

ina 101(b)(1)(e)

http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1101&num=0&edition=prelim

 

 

 

I am reading some contradiction: Chapter 2 - Eligibility | USCIS  

 

At first it aligns with what you said. 

A petitioner who is a stepparent who adopted the petitioner’s stepchild also has to meet the 2-year legal custody and 2-year joint residence requirements and obtain a final adoption before the child’s 16th birthday (or 18th birthday if the sibling exception applies) before the petitioner can be considered an adoptive parent under immigration law.^[23]

 

But there is a footnote number #23: 

 

[^ 23] See INA 101(b)(1)(E). Note that 2 years of legal custody and joint residence is not required to establish a qualifying step-relationship under INA 101(b)(1)(B). For information on (non-adoptions based) family-based petitions, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].

 

Drilling in further: eCFR :: 8 CFR 204.2 -- Petitions for relatives, widows and widowers, and abused spouses and children.

 

There is a section for "Petition for a child or son or daughter —"

 

(vii) Primary evidence for an adopted child or son or daughter.  This also aligns to what you described.  

 

But check this out:

Primary evidence for a stepchild. If a petition is submitted by a stepparent on behalf of a stepchild or stepson or stepdaughter, the petition must be supported by the stepchild's or stepson's or stepdaughter's birth certificate, issued by civil authorities and showing the name of the beneficiary's parent to whom the petitioner is married, a marriage certificate issued by civil authorities which shows that the petitioner and the child's natural parent were married before the stepchild or stepson or stepdaughter reached the age of eighteen; and evidence of the termination of any prior marriages of the petitioner and the natural parent of the stepchild or stepson or stepdaughter.

 

The 2 areas of text above in GREEN, Are they implying that the 2 years of legal custody don't matter if the petitioner is the Step-father?

 

What am I missing?

 

 

 

[nastra30 2,287]

3 hours ago, EriLupGus said:

 

 

I am reading some contradiction: Chapter 2 - Eligibility | USCIS  

 

At first it aligns with what you said. 

A petitioner who is a stepparent who adopted the petitioner’s stepchild also has to meet the 2-year legal custody and 2-year joint residence requirements and obtain a final adoption before the child’s 16th birthday (or 18th birthday if the sibling exception applies) before the petitioner can be considered an adoptive parent under immigration law.^[23]

 

But there is a footnote number #23: 

 

[^ 23] See INA 101(b)(1)(E). Note that 2 years of legal custody and joint residence is not required to establish a qualifying step-relationship under INA 101(b)(1)(B). For information on (non-adoptions based) family-based petitions, see Volume 6, Immigrants, Part B, Family-Based Immigrants [6 USCIS-PM B].

 

Drilling in further: eCFR :: 8 CFR 204.2 -- Petitions for relatives, widows and widowers, and abused spouses and children.

 

There is a section for "Petition for a child or son or daughter —"

 

(vii) Primary evidence for an adopted child or son or daughter.  This also aligns to what you described.  

 

But check this out:

Primary evidence for a stepchild. If a petition is submitted by a stepparent on behalf of a stepchild or stepson or stepdaughter, the petition must be supported by the stepchild's or stepson's or stepdaughter's birth certificate, issued by civil authorities and showing the name of the beneficiary's parent to whom the petitioner is married, a marriage certificate issued by civil authorities which shows that the petitioner and the child's natural parent were married before the stepchild or stepson or stepdaughter reached the age of eighteen; and evidence of the termination of any prior marriages of the petitioner and the natural parent of the stepchild or stepson or stepdaughter.

 

The 2 areas of text above in GREEN, Are they implying that the 2 years of legal custody don't matter if the petitioner is the Step-father?

 

What am I missing?

 

 

 

I don't see a contradiction at all. The green text is just telling you don't need 2 year legal custody to establish step-parent relationship. You are already passed that stage that's why you were able to petition the child for a greencard.

-To be the adoptive parent though is a different matter. Make sure to distinguish between stepparent and adoptive parent, two different things.

-Also make sure to distinguish definition of a child for petitioning purposes and definition of a child for citizenship/naturalization purposes.

Edited June 19 by nastra30