LEGAL GUIDE
Written by attorney Thanh Van Thi Doan | Aug 11, 2010

Is My Child Already a U.S. Citizen?

All too often clients come to my law firm wanting to adopt their niece, nephew, or grandchild believing that this is the easiest way to allow their niece, nephew, or grandchild to remain in the United States legally. First, they are usually disappointed when I inform them that adoption is not an easy process (but that is a topic for another discussion). Second, they are surprised when I inform them that they may not have to do anything because the child may have already acquired or derived US citizenship.

Acquired vs. Derived Citizenship

Acquisition and derivation of citizenship are methods of acquiring citizenship automatically, without having to apply for anything.

Acquisition allows certain people born outside the U.S. to automatically become U.S. citizens at birth. The laws governing acquisition of citizenship have changed over time. Thus, the following five factors will determine if a child has acquired citizenship on a given date:

  • Whether the person’s parents were married when she was born;
  • The person’s date of birth;
  • Whether one or both of the parents was a U.S. citizen when the person was born;
  • How long the citizen parent resided in the U.S. prior to the person’s birth; and
  • Whether the person has satisfied requirements for residency in the U.S.

It’s important to note that even if the child’s parents were born outside of the U.S., the parents themselves may have also acquired citizenship through their parents i.e. the child’s grandparents. Thus, the analysis should be performed for the child as well as the child’s parents to determine if citizenship has been transmitted to the child.

Derivation is a method by which a child who has lawful permanent resident status to automatically become a citizen if one or both parents become a U.S. citizen by naturalization or by other means. Similar to acquisition, the laws governing derivation have changed over time. Thus, the issues which will determine whether or not a child has derived citizenship on a given date are:

  • Whether one or both of the client’s parents is a U.S. citizen by birth or naturalization

    • If a child is born on or after 2/28/83, the child will qualify for derivation if the U.S. citizen parent became a U.S. citizen through birth or naturalization; whereas
    • Anyone born before 2/28/83, can only qualify for derivation if the parent became a U.S. citizen through naturalization.
  • When the child’s parents naturalized;

  • The child’s age when the parents naturalized;

  • Whether the client/child was married;

  • The length of time the client/child lived in the U.S. as a lawful permanent resident; and

  • Whether the client/child was in the legal and physical custody of the U.S. citizen parent?

The factors listed may not be an issue for all clients/children. The law in effect at the time will determine which combination of the above factors will apply to the client/child.

Child Citizenship Act of 2000

The maze and confusion surrounding acquisition and derivation created by the changing laws was simplified by the Child Citizenship Act (CCA) of 2000. Effective February 27, 2001, a child born outside of the U.S. automatically becomes a U.S. citizen if the child meets all the following factors:

  • Was under 18 years old as of February 27, 2001;
  • Unmarried;
  • A lawful permanent resident; and
  • Was in the legal and physical custody of at least one U.S. citizen parent.

Proving Citizenship

If it’s been determined that that child has acquired or derived citizenship, it’s advisable to either apply for a passport and/or file the N-600 Certificate of Citizenship as proof of citizenship. Although it’s much easier and takes less time to obtain a passport, passports expire and may be lost. Filing the N-600 is more expensive and may take longer, but the certificate never expires and because it is rarely used, it’s less likely to get lost.

It’s important to note that if a child has a U.S. passport, but is then later denied when an N-600 is filed, the U.S. passport is conclusive evidence of the child’s U.S. citizenship.

In conclusion, for anyone who doesn’t qualify under the CCA, and before other relief options are explored, an in-depth analysis should always be undertaken to determine if a person has automatically obtained citizenship by acquisition or derivation.

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