Birth Abroad

Introduction

 

I. Acquiring Citizenship at Birth When Born Abroad

1. Children Born in Wedlock

    1a. Where Both Parents are U.S. Citizens

    1b. Where One Parent is a U.S. Citizen (after November 14, 1986)

    1c. Where One Parent is a U.S. Citizen (Between October 10, 1952 and November 14, 1986)

2. Children Born Out of Wedlock

    2a. Child of a U.S. Citizen Father

    2b. Child of a U.S. Citizen Mother

II. Acquiring Citizenship after Birth Abroad

3. Child is Under the Age of 18, or Not Yet Born, on February 27, 2001

4. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001

    4a. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001 [Second Scenario]

5. Adopted Child Who Was Born Abroad

    5a. IR-3 and IH-3 Categories

    5b. IR-4 and IH-4 Categories

Introduction

U.S. immigration law recognizes the importance and sanctity of U.S. citizenship. Because of this, there are provisions of U.S. immigration law that make it easy in many scenarios for U.S. citizen parents to transfer citizenship to a child born abroad.

Under current law, provided that certain conditions are met, a U.S. citizen parent may transfer citizenship to his or her child automatically.  While the parent should still obtain documentation of the child’s citizenship, documentation is not required for the child to be a U.S. citizen where conditions are met.

Furthermore, there are scenarios in which citizenship may be transferred to a child after birth and before the child turns eighteen years of age.

U.S. Citizenship and Immigration Services (USCIS) published a very clear and helpful guide explaining when citizenship is transferred from a U.S. citizen parent to a child born abroad, and when citizenship may be transferred after birth abroad.  You may read by following this link:  USCIS Policy Manual guidance on Children of U.S. Citizens.

I. Acquiring Citizenship at Birth When Born Abroad

1. Children Born in Wedlock:

    1a. Where Both Parents are U.S. Citizens

The child is a U.S. citizen at birth if at least one of the parents had lived in the United States, including in one of its territories, at and for any time prior to the birth of the child. It is important, though not a prerequisite for the child to be a U.S. citizen, to report the fact of birth to the nearest U.S. Consulate and have Certificate of Birth Abroad issued.

    1b. Where One Parent is a U.S. Citizen (after November 14, 1986)

The child is a Citizen of the United States at birth if:

• The birth occurred on or after November 14, 1986;
• The parents were married at the time of the birth;
• U.S. Citizen parent was physically present in the United States or its territories for at least five years or longer prior to the birth of the child;
• At least two of the five years of physical presence occurred before the parent turned 14 years of age.

The following is included for purpose of meeting this physical presence requirement:

• Serving honorably in the U.S. Armed Forces abroad;
• Employment with the U.S. Government abroad;
• Employment with certain international organizations abroad;
• Time spent abroad as an unmarried son or daughter or a member of the household of one of the above.

   
    1c. Where One Parent is a U.S. Citizen (Between October 10, 1952 and November 14, 1986)

The child is a Citizen of the United States at birth if:

• The birth occurred before November 14, 1986 but after October 10, 1952;
• The parents were married at the time of the birth;
• U.S. Citizen parent was physically present in the United States or its territories for at least ten years prior to the birth of the child;
• At least five of the ten years of physical presence occurred before the parent turned 14 years of age.

The following is included for purpose of meeting this physical presence requirement:

• Serving honorably in the U.S. Armed Forces abroad;
• Employment with the U.S. Government abroad;
• Employment with certain international organizations abroad;
• Time spent abroad as an unmarried son or daughter or a member of the household of one of the above.

2. Children Born Out of Wedlock

    2a. Child of a U.S. Citizen Father

The provisions listed above for a child born in wedlock apply to a child born out of wedlock outside of the United States claiming citizenship through a U.S. citizen father if:

• A blood relationship between the child and the father is established by clear and convincing evidence;
• The child's father was a U.S. citizen at the time of the child's birth;
• The child's father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and

One of the following criteria is met before the child reaches 18 years of age:

             o    The child is legitimated under the law of his or her residence or domicile;
             o    The father acknowledges in writing and under oath the paternity of the child;
             o    The paternity of the child is established by adjudication of a competent court.

Furthermore, the five/two year physical presence requirement applies to the U.S. citizen father for purpose of transmitting citizenship to the child.

The above law is effective for children who turned 18 years of age prior to November 13, 1986.  Under the previous law, a child was required to be legitimized before the age of 21 and the U.S. citizen father was required to meet the ten/five year physical presence requirement.  For more detail on the old rules for derivation of citizenship from a U.S. citizen father in this scenario, please follow this link.

    2b. Child of a U.S. Citizen Mother

A child born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:

• The child was born after December 23, 1952;
• The mother was U.S. citizen at the time of the child's birth;
• The mother was physically present in the United States or outlying possession for one continuous year prior to the child's birth (note there are no exceptions from the physical presence requirement in this scenario). 

II. Acquiring Citizenship after Birth Abroad

3. Child is Under the Age of 18, or Not Yet Born, on February 27, 2001

• At least one parent was a U.S. citizen or became a U.S. citizen by naturalization;
• The child was residing in the legal and physical custody of the U.S. citizen parent(s);
• The child is admitted to the United States as a lawful permanent resident (LPR).

4. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001

• Both parents became U.S. citizens before the child turned 18 years of age;
• The child became an LPR before turning 18 years of age.

    4a. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001 [Second Scenario]

• The child became an LPR before turning 18 years of age;
• One parent became a U.S. citizen before the child turned 18 years of age;
• The child was in the legal and physical custody of only one parent, who was a U.S. citizen, where the other parent was;

             o    Dead;
             o    Legally separated from the parent with legal and physical custody of the child;
             o    Or the child was born out of wedlock and his or her legitimacy was never established.

5. Adopted Child Who Was Born Abroad

• The child was adopted by a U.S. Citizen parent;
• The child resides legally in the United States;
• The child is in the legal and physical custody of the U.S. citizen parent;
• The child meets those and the following conditions after February 27, 2001, but before his or her 18th birthday:

            o    The Child was adopted by the parent prior to the Child's 16th birthday or, if the sibling of a child who was also adopted by the same parent prior to his or her 16th birthday, prior to the Child's 18th birthday,
            o    Resided with the parent for at least two years.

5a. IR-3 and IH-3 Categories

• The child was adopted by a U.S. Citizen parent;
• The child resides legally in the United States;
• The child is in the legal and physical custody of the U.S. citizen parent
• The child meets those and the following conditions after February 27, 2001, but before his or her 18th birthday:

            o    The child was admitted into the United States as an orphan (IR-3) or as a Convention Adoptee (IH-3)
            o    His or her adoption by the U.S. Citizen parent(s) was completed abroad

5b. IR-4 or IH-4 Categories

• The child was adopted by a U.S. Citizen parent;
• The child resides legally in the United States;
• The child is in the legal and physical custody of the U.S. citizen parent
• The child meets those and the following conditions after February 27, 2001, but before his or her 18th birthday:

            o    The child was admitted into the United States as an orphan (IR-4) or as a Convention Adoptee (IH-4) in order to have his or her adoption completed by the U.S. citizen parent(s) in the United States;
            o    The adoption is completed before the child’s 18th birthday.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

RELEVANT RESOURCES:

LEGAL AUTHORITIES:

• INA 101(c) - Definition of child for citizenship and naturalization
• INA 309 - Children born out of wedlock
• INA 301 - Nationals and citizens of the United States at birth
• INA 320, 8 CFR 320 - Children residing permanently in the United States
• INA 322, 8 CFR 322 - Children residing outside the United States

2013-01-07 - comprehensive citizenship and naturalization policy guidance (pdf)

USCIS Policy Guidance - Part H: Children of U.S. Citizens

FORMS:

• N-600, Application for Certificate of Citizenship
• N-600K, Application for Citizenship and Issuance of Certificate Under Section 322

Source:

“USCIS Policy Manual,” USCIS, July 21, 2015, Volume 12, Chapters 5 and 6,available at http://www.uscis.gov/policymanual/HTML/PolicyManual.html

Learn more about this and many other immigration issues at myattorneyusa.com:

http://myattorneyusa.com/immigration-law-and-practice/citizenship/citizenship-and-naturalization/deriving-citizenship-through-parents-at-birth

http://myattorneyusa.com/immigration-law-and-practice/citizenship/citizenship-and-naturalization/deriving-citizenship-through-parents-after-birth

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K-1 and K-2 Nonimmigrant Visas

• Introduction
• Eligibility Requirements
• Filing Process
• Challenges for Approval
• After Admission
• Advice

 

Introduction

 

The K nonimmigrant visa category includes the K-1 visa for fiancées of U.S. citizens and the K-2 visa for accompanying minor children.  The U.S. citizen and his or her fiancée are required to marry within 90 days of the fiancées admission into the United States with a K-1 visa for the K-1 and any K-2 beneficiaries to be allowed to remain in the United States.  Provided that the marriage occurs within 90 days, the K-1 beneficiary and any K-2 beneficiaries should immediately apply for adjustment of status based upon marriage to a U.S. citizen.

Eligibility Requirements

In order for a fiancée to be eligible for a K-1 visa, he or she must be seeking to enter the United States solely to conclude a valid marriage with the petitioning U.S. citizen fiancée within 90 days of entry.[1]  The minor unmarried child (defined as under 21 years of age) of the beneficiary of a K-1 petition is eligible for a K-2 visa whether he or she is accompanying or following to join.[2] 

The petitioner for a K-1 visa must be a U.S. citizen.  Therefore, a lawful permanent resident may not file a petition for a fiancée to be admitted with a K-1 visa.  If the U.S. citizen fiancée has been convicted of certain offenses involving the sexual abuse of a child, he or she will be ineligible to be a petitioner unless a waiver is granted by the Department of Homeland Security.  Please follow this link to learn about the specific crimes covered and the waivers that may be available.

Filing Process

 

The petitioner must file a Form I-129F, Petition for Alien Fiancé(e).  The names of any derivative minor children of the fiancée should be included on the Form I-129F if the petitioner is seeking K-2 visas for them.

In order for the petition to be approved, it must demonstrate the following:

• That there is a bona fide intention to marry within 90 days of the K-1 beneficiary’s admission;
• That there are no legal impediments to marriage;
• That the petitioner and beneficiary have met in person within 2 years of the filing of the Form I-129F
• That the petitioner provides his or her criminal record as it relates to certain crimes (e.g. domestic violence, child abuse and neglect, sexual assault, certain violent crimes)[3]

To learn more about any of these requirements, please follow the links included in the list.  It is important to remember that the petitioner and fiancée must demonstrate that the intended marriage is bona fide, that is that the marriage is not being entered into for the purpose of circumventing U.S. immigration laws.

If the petition is ultimately approved, a Form DS-160 must be filed with the K-1 beneficiary’s U.S. consulate.

An approved K-1 visa petition is valid for four months from the date of approval, and it may be revalidated by a consular officer any number of times in four-month intervals.[4]  While this allows the petitioner and the K-1 beneficiary additional time to make arrangements, it is important to note that consular officials may question the intentions of the couple as more time elapses from the approval of the petition.

Other Challenges for Approval

 

In addition to not meeting the requirements on the Form I-129F, there are other reasons for which a petition may not be approved.

In order for the petition to be approved, the K-1 beneficiary must be admissible to the United States.[5]   Because a K-1 petition is approved with the understanding that the K-1 beneficiary is entering the United States solely to marry the petitioner and then apply for adjustment of status, the only grounds of inadmissibility that may be waived are those that would be waivable of the K-1 beneficiary marries the U.S. citizen.[6] 

If the petitioner has previously filed K-1 petitions for 2 or more fiancées and the most recent petition was filed within 2 years of the current petition, the petition will generally be denied.[7]  If the petitioner has had two previous petitions approved and the most recent petition was approved within 10 years of the current petition, the petitioner will have to demonstrate that unusual circumstances weigh in favor of granting a waiver.[8] 

If the petitioner has a history of violent criminal offenses, the petition will be denied unless a waiver is granted due to “extraordinary circumstances” or because the offenses in question came as a result of the petitioner being subject to battery or extreme cruelty.

After Admission

 

Upon admission to the United States with a K-1 or K-2 visa, a beneficiary may obtain employment authorization.[9]  However, the beneficiary will need a new employment authorization document after marrying the petitioner.

It is imperative that the K-1 beneficiary marry the petitioner within 90 days of entry.  K-1 beneficiaries are ineligible to change status while admitted as a K-1, and may not apply for adjustment of status through any means but through marriage to the petitioner.  Once the fiancée is admitted, there is no extension of the 90-day period.  The K-1 beneficiary and any K-2 beneficiaries will be removable if the marriage does not occur within 90 days.

Upon marrying, the K-1 should immediately apply for adjustment of status in order to obtain conditional permanent resident status.  K-2 beneficiaries should adjust along with the K-1 principal.

Advice

 

Couples considering a K-1 fiancée visa should consult with an experienced immigration attorney for help in ensuring that the Form I-129F is properly filed with all of the necessary documentation.  While many cases may be relatively straightforward, there are factors that can make the K-1 petitioning process complicated.  After approval, the couple must make sure to marry within 90 days.  An experienced immigration attorney will be able to provide sound counsel to the couple both in applying for adjustment of status and subsequently in applying to have the conditions removed from the spouse’s permanent resident status.

Please read our comprehensive article to learn more:

http://myattorneyusa.com/immigration-law-and-practice/immigration-to-the-usa/family-immigration/k-1-and-k-2-visas-for-fiancees-and-derivatives

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

_____________________________

  1.INA § 101(a)(15)(K)(i)
  2.INA § 101(a)(15)(K)(iii)
  3.INA § 214(d)(1)
  4.9 FAM 41.82 N6.2
  5.22 C.F.R. § 41.81(d)
  6.INA § 212(a)(9)(A)(i), § 212(a)(9)(A)(ii), 212(a)(9)(B)(v), § 212(d)(11), § 212(d)(12), § 212(g), § 212(i) [includes the 3-year bar of inadmissibility, prior removal for inadmissibility, and prior deportation]
  7.INA § 214(d)(2)(a)
  8.INA § 214(r)(4)(B)(i); Memo, Aytes, Assoc. Dir. Domestic Operations, USCIS, HQOPRD 70/6.2.11 (July 21, 2006) at 2-3
  9.8 C.F.R. § 274a.12(a)(6)

Lawyer website: http://myattorneyusa.com

What Happens When Client Files Are Destroyed By a Disaster or Accident?

New York attorneys have a duty to preserve documents related to current and former clients. Though this duty to preserve client files does not extend indefinitely, there is no specific guidance on how long client files must be preserved. Out of an abundance of caution, many New York attorneys are inclined to keep old client files in storage. But what happens when client files are destroyed by a disaster or accident? Does the attorney have an ethical obligation to notify his/her current or former client when client files have been inadvertently destroyed?

The New York City Bar Association's Committee on Professional Ethics recently issued an ethics opinion concluding an attorney may have a duty to notify both a current and former client when his/her/its file has been inadvertently destroyed by disaster or accident. The Committee on Professional Ethics did not announce a bright-line rule for when an attorney has a duty to contact a current or former client, but rather encouraged attorneys to make case-by-case determinations as to whether a current or former client must be notified about the inadvertent destruction of his/her/its file. In making a case-by-case determination, the attorney should consider factors such as whether the client matter is ongoing, relevance of the documents to the ongoing matter, ability to reproduce the documents, and nature and age of the documents destroyed.

The Committee on Professional Ethics applied the three-tier framework used to categorize client files when assessing whether an attorney may destroy client files upon conclusion of representation to provide guidance as to when a current or former client should be notified about the inadvertent destruction of his/her/its file. Category 1 documents are those of “'intrinsic value or those that directly affect property rights' [such as] wills, deeds, and negotiable instruments”. New York City Bar Association Formal Opinion 2015-6 (2015) citing New York City Bar Association Formal Opinion 2010-1 (2010). When Category 1 documents are inadvertently destroyed, the attorney “has an affirmative obligation to take reasonable steps to notify the client or former client[.]”Id.

Category 2 documents are those the attorney “'knows or should know may still be necessary or useful to the client, perhaps in the assertion of a defense in the matter for which the applicable limitations period has not expired.'” Id. citing New York City Bar Association Formal Opinion 2010-1 (2010). Category 2 documents may encompass both active and inactive client files. When the matter remains active, the attorney “must take reasonable steps to notify the client if Category 2 documents are inadvertently destroyed.” Id. However, if the matter is no longer active, the attorney must make a case-by-case assessment to determine whether the client may foreseeably need the inadvertently destroyed documents in the future. Id. The attorney has no obligation to notify the client of the inadvertent destruction of documents if he/she “reasonably concludes that the 'document relates solely to a claim fully and finally resolved through litigation'[.]” Id. citing New York City Bar Association Formal Opinion 2010-1 (2010). However, if the matter has not been fully or finally resolved or related issues exist, the attorney “should take reasonable steps to notify the client that the file was destroyed.” Id. Factors relevant to inquiry as to whether the client should be notified about the inadvertent destruction of Category 2 documents include (1) the passage of time since the matter was closed; (2) whether the client was provided notice in the past that the file was available to be collected or delivered and the client's response to said notice; (3) whether the client was previously provided copies of the file during or at the conclusion of representation; (4) whether the attorney previously made fruitless attempts to contact the client; and (5) whether the file can be reconstructed from other sources such as the court, government agencies, and co-counsel or opposing counsel.

Finally, Category 3 documents are those of “relatively little importance that would 'furnish no useful purpose in serving the client's present needs for legal services.'” Id. citing New York City Bar Association Formal Opinion 2010-1 (2010) (internal citations omitted). There is no affirmative duty to notify a current or former client of the inadvertent destruction of Category 3 documents. The attorney is nonetheless obligated to comply with a current or former client's reasonable request for information about his/her/its client file. As such, the attorney must promptly inform the current or former client of the inadvertent destruction of the documents if said client makes an inquiry as about the file.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

New Article: Reinstatement of Removal

We have just posted an a detailed overview of reinstatement of removal. If an alien is found to have reentered the United States illegally after having been previously removed or having left under a grant of voluntary departure under a previous removal order, the alien may be subject to reinstatement of removal. Reinstatement of removal allows the Department of Homeland Security to reinstate the previous removal order. Aliens subject to reinstatement are not entitled to have the reinstatement of removal order reviewed by an immigration judge. However, there are limited ways in which an alien may seek relief from reinstatement of removal. These include demonstrating a reasonable fear of persecution or torture, challenging the original removal removal proceeding, or if eligible, seeking relief under HRIFA or NACARA. Our article explains the triggers for reinstatement of removal, reinstatement of removal procedures and remedies, and an explanation of how an experienced immigration attorney will be an invaluable asset to an alien facing reinstatement of removal.

To learn about similar immigration issues, please visit the growing Removal & Deportation Defense section of our website.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com