Submitting an Affidavit of Support-USCIS form I-864

Posted on November 8, 2013 by Mike Baker

What is an Affidavit of Support?

An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support becomes the sponsor of the relative (or other individual) coming to live in the United States. The sponsor is usually the petitioner of an immigrant petition for a family member.

An affidavit of support is legally enforceable; the sponsor’s responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work (usually 10 years).

The law concerning affidavits of support is found in Immigration and Nationality Act (INA) sections 212(a)(4) and 213A. The provisions are codified in Title 8 of the Code of Federal Regulations (CFR) at 8 CFR 213a.

212(a)(4)(A) Public Charge

Section 212(a) of Act: Section 212(a)(4)(A) of the Act renders inadmissible any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General or the Secretary of the Department of Homeland Security at the time of application for admission or adjustment of status, is likely at any time to become a public charge.

Submitting an Affidavit of Support

The following individuals are required by law to submit a Form I-864, Affidavit of Support, completed by the petitioner to obtain an immigrant visa or adjustment of status:

All immediate relatives of U.S. citizens (which include parents, spouses, and unmarried children under the age of 21, including orphans) and relatives who qualify for immigration to the United States under one of the family based preferences:

  • First Preference: Unmarried, adult sons and daughters of U.S. citizens (Adult means 21 years of age or older)
  • Second Preference: Spouses of permanent residents and the unmarried sons and daughters (regardless of age) of permanent residents and their unmarried children
  • Third Preference: Married sons and daughters of U.S. citizens, their spouses and their unmarried minor children
  • Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their unmarried minor children
  • Employment based preference immigrants in cases only when a U.S. citizen or permanent resident relative filed the immigrant visa petition, or such relative has a significant ownership interest (5% or more) in the entity that filed the petition.

Note: An individual listed above does not need to submit an affidavit of support if they can show that they EITHER:

  • Already worked 40 qualifying quarters as defined in Title II of the Social Security Act
  • Can be credited with 40 qualifying quarters as defined in Title II of the Social Security Act
  • Are the child of a U.S. citizen and if admitted for permanent residence on or after February 27, 2001, would automatically acquire citizenship under Section 320 of the Immigration and Nationality Act, as amended by the Child Citizenship Act of 2000

When NOT to Submit an Affidavit of Support

The following types of people do not need to file an affidavit of support:

  • An individual who has earned or can be credited with 40 qualifying quarters (credits) of work in the United States
  • An individual who has an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, as a Self-Petitioning Widow or Widower
  • An individual who has an approved Form I-360 as a battered spouse or child
  • Orphans adopted by U.S. citizens abroad if a full and formal adoption takes place before the orphan acquires permanent residence and both adoptive parents have seen the child before or during the adoption

Affidavit of Support For Fiancé(e), Spouse, or Child as a “K” Nonimmigrant

If your relative is either a “K-1” fiancé(e), a “K-3” spouse, or a “K-2” or “K-4” child of fiancé(e) or spouse, you do not need to submit an affidavit of support at the time you file your Form I-129F petition. Instead, you should submit an affidavit of support at the time that your fiancé(e), spouse, or child adjusts status to permanent resident after coming to the United States.

Sponsor for Affidavit of Support

If you filed an immigrant visa petition for your relative, you must be the sponsor. You must also be at least 18 years old and a U.S. citizen or a permanent resident. You must have a domicile in the United States or a territory or possession of the United States. Usually, this requirement means you must actually live in the United States, or a territory or possession, in order to be a sponsor. If you live abroad, you may still be eligible to be a sponsor if you can show that your residence abroad is temporary, and that you still have your domicile in the United States.

Section 213A of the INA permits both a “joint sponsor” and a “substitute sponsor” in certain cases.

Joint Sponsor

A joint sponsor is someone who is willing to accept legal responsibility for supporting your family member with you. A joint sponsor must meet all the same requirements as you, except the joint sponsor does not need to be related to the immigrant. The joint sponsor (or the joint sponsor and his or her household) must reach the 125% income requirement alone. You cannot combine your income with that of a joint sponsor to meet the income requirement.

Substitute Sponsor

If the visa petitioner has died after approval of the visa petition but U.S. Citizenship and Immigration Services (USCIS) decides to let the petition continue, a substitute sponsor must file a Form I-864 in place of the deceased visa petitioner. In order to be a “substitute sponsor,” you must be related to the intending immigrant in one of the following ways:

  • Spouse
  • Parent
  • Mother-in-law
  • Father-in-law
  • Sibling
  • Child (if at least 18 years of age)
  • Son
  • Daughter
  • Son-in-law
  • Daughter-in-law
  • Sister-in-law
  • Brother-in-law
  • Grandparent
  • Grandchild
  • Legal guardian of the beneficiary

You must also:

  • Be U.S. citizen or national or a permanent resident
  • Be at least 18 years of age
  • Be domiciled (live) in the United States
  • Meet all of the financial requirements of a sponsor pursuant to INA 213A

The substitute sponsor assumes all of the obligations of an I-864 sponsor.

How to File an Affidavit of Support

You, the sponsor, should complete Form I-864 when your relative has been scheduled for an immigrant visa interview with a consular officer overseas or when your relative is about to submit an application for adjustment to permanent resident status with the USCIS or with an Immigration Court in the United States. If you have a joint sponsor, they must also complete Form I-864. If you are using the income of other household members to qualify, then each household member who is accepting legal responsibility for supporting your relative must complete a separate Form I-864A, Contract Between Sponsor and Household Member.

You are required to provide your U.S. federal income tax return for the most recent tax year as well as proof of current employment. If you were not required to file a tax return in any of these years you must provide an explanation. Failure to provide the tax return or evidence establishing that you were not required to file will delay action on your relative’s application for permanent residence. If this information is not provided, this will result in denial of an immigrant visa or adjustment of status.

When you have completed the affidavit of support, compiled the necessary documentation, and had the affidavit notarized in the United States or before a U.S. consular or immigration officer, you should provide this packet of information to your relative to submit with his or her application for permanent resident status. If you are given specific instructions to file your affidavit of support directly with the National Visa Center, you should follow those instructions.

Income Requirements

You also must meet certain income requirements (whether you are a sponsor, a joint sponsor, or a substitute sponsor). You must show that your household income is equal to or higher than 125% of the U.S. poverty level for your household size. (Your household size includes you, your dependents, any relatives living with you, and the immigrants you are sponsoring.)

If you, the sponsor, are on active duty in the Armed Forces of the United States, and the immigrant you are sponsoring is your spouse or child, your income only needs to equal 100% of the U.S. poverty level for your household size.

Retirement income (pension and SS) can be used on the I-864. A retired person who has income on his tax return – e.g. interest income, annuity, pension, social security benefits, etc. – can use that income on the I-864. HOWEVER, you should expect some delays at the NVC as it is nonstandard income and anything nonstandard gets you an RFE at the NVC. Just accept that you will have to jump through a few hoops and get an RFE and it will take an extra one to three months.

Show pension documents (preferably recent ones) demonstrating how much income one gets from the pension; and file social security documents showing income from that. Provide these along with his tax returns for the last three years, and you should ok.

To see if you are above the poverty level, see the “Form I-864P” page.

If You Can’t Meet the Minimum Income Requirements: If you cannot meet the minimum income requirements using your earned income, you have various options:

You may add the cash value of your assets. This includes money in savings accounts, stocks, bonds, and property. To determine the amount of assets required to qualify, subtract your household income from the minimum income requirement (125% of the poverty level for your family size). You must prove the cash value of your assets is worth five times this difference (the amount left over).
Exceptions:

  • If the person being sponsored is a spouse, or son/daughter (who is 18 years or older) of a U.S. citizen: The minimum cash value of assets must be three times the difference between the sponsor’s household income and 125% of the federal poverty guide line for the household.
  • If the person being sponsored is an orphan coming to the United States for adoption: The adoptive parents’ assets need to equal or exceed the difference between the household income and 125% of the federal poverty line for the household size.

You may count the income and assets of members of your household who are related to you by birth, marriage, or adoption. To use their income you must have listed them as dependents on your most recent federal tax return or they must have lived with you for the last 6 months. They must also complete a Form I-864A, Contract between Sponsor and Household Member. If the relative you are sponsoring meets these criteria you may include the value of their income and assets, but the immigrant does not need to complete Form I-864A unless he or she has accompanying family members. You may count the assets of the relatives you are sponsoring.

Income from the intending immigrant can be used if that income will continue from the same source after immigration, and if the intending immigrant is currently living in your residence.

If the intending immigrant is your spouse, his or her income can be counted regardless of current residence, but it must continue from the same source after he or she becomes a lawful permanent resident. Evidence of the same source of income must be provided. If the intending immigrant is any other relative, the income must be continuing from the same source after he or she obtains lawful permanent resident status, and the intending immigrant must currently live with you in your residence. Evidence must be provided to support both requirements.

However, an intending immigrant in this case does not need to complete form I-864A unless the intending immigrant has a spouse and/or children immigrating with him or her. In this instance, the contract relates to support for the spouse and/or children.

Responsibilities as a Sponsor

When you sign the affidavit of support, you accept legal responsibility for financially supporting the sponsored immigrant(s) generally until they become U.S. citizens or can be credited with 40 quarters of work. Your obligation also ends if you or the individual sponsored dies or if the individual sponsored ceases to be a permanent resident and departs the United States.

Note: Divorce does NOT end the sponsorship obligation.

If the individual you sponsored receives any “means-tested public benefits,” you are responsible for repaying the cost of those benefits to the agency that provided them. If you do not repay the debt, the agency can sue you in court to get the money owed. Any joint sponsors or household members whose income is used to meet the minimum income requirements are also legally responsible for financially supporting the sponsored immigrant.

Change of Address

If you change your address after you become a sponsor, you are required by law to notify the USCIS within 30 days by filing Form I-865, Sponsor’s Notice of Change of Address. If you fail to notify the USCIS of your change of address, you may be fined.
____________________________________________________________________
TITLE 8 OF CODE OF FEDERAL REGULATIONS (8 CFR) \ 8 CFR PART 213a — AFFIDAVITS OF SUPPORT ON BEHALF OF IMMIGRANTS (Part 213a added effective 12/19/97; 62 FR 54346) \ § 213a.2 Use of affidavit of support.

§ 213a.2 Use of affidavit of support. (Revised effective 11/28/11; 76 FR 53764)

(a) Applicability of section 213a affidavit of support. (1)(i)(A) In any case specified in paragraph (a)(2) of this section, an intending immigrant is inadmissible as an alien likely to become a public charge, unless the qualified sponsor specified in paragraph (b) of this section or a substitute sponsor and, if necessary, a joint sponsor, has executed on behalf of the intending immigrant an affidavit of support on the applicable form designated by USCIS in accordance with section 213A of the Act and the form instructions. Each reference in this section to Form I-864 is deemed to be a reference to all such forms designated by USCIS for use by a sponsor for compliance with section 213A of the Act. (Paragraph (a)(1) revised effective 7/21/06; 71 FR 35732 )

(B) If the intending immigrant claims that, under paragraph (a)(2)(ii)(A), (C), or (E) of this section, the intending immigrant is exempt from the requirement to file an affidavit of support, the intending immigrant must include with his or her application for an immigrant visa or adjustment of status an exemption request on the form designated by USCIS for this purpose.

(ii) An affidavit of support is executed when a sponsor signs and submits the appropriate forms in accordance with the form instructions to USCIS or the Department of State, as appropriate.

(iii) A separate affidavit of support is required for each principal beneficiary.

(iv) Each immigrant who will accompany the principal intending immigrant must be included on the affidavit. See paragraph (f) of this section for further information concerning immigrants who intend to accompany or follow the principal intending immigrant to the United States.

(v)(A) Except as provided for under paragraph (a)(1)(v)(B) of this section, the Department of State consular officer, immigration officer, or immigration judge will determine the sufficiency of the affidavit of support based on the sponsor’s, substitute sponsor’s, or joint sponsor’s reasonably expected household income in the year in which the intending immigrant filed the application for an immigrant visa or for adjustment of status, and based on the evidence submitted with the affidavit of support and the Poverty Guidelines in effect when the intending immigrant filed the application for an immigrant visa or adjustment of status.

(B) If more than one year passes between the filing of an affidavit of support or Form I-864A and the hearing, interview, or examination of the intending immigrant concerning the intending immigrant’s application for an immigrant visa or adjustment of status, and the Department of State officer, immigration officer or immigration judge determines, in the exercise of discretion, that the particular facts of the case make the submission of additional evidence necessary to the proper adjudication of the case, then the Department of State officer, immigration officer or immigration judge may direct the intending immigrant to submit additional evidence. A Department of State officer or immigration officer shall make the request in writing, and provide the intending immigrant not less than 30 days to submit the additional evidence. An immigration judge may direct the intending immigrant to submit additional evidence and also set the deadline for submission of the initial evidence in any manner permitted under subpart C of 8 CFR part 1003 and any local rules of the Immigration Court. If additional evidence is required under this paragraph, an intending immigrant must submit additional evidence (including copies or transcripts of any income tax returns for the most recent tax year) concerning the income or employment of the sponsor, substitute sponsor, joint sponsor, or household member in the year in which the Department of State officer, immigration officer, or immigration judge makes the request for additional evidence. In t his case, the sufficiency of an affidavit of support and any Form I-864A will be determined based on the sponsor’s, substitute sponsor’s, or joint sponsor’s reasonably expected household income in the year the Department of State officer, immigration officer or immigration judge makes the request for additional evidence, and based on the evidence submitted in response to the request for additional evidence and on the Poverty Guidelines in effect when the request for evidence was issued.

(2) (i) Except for cases specified in paragraph (a)(2)(ii) of this section, paragraph (a)(1) of this section applies to any application for an immigrant visa or for adjustment of status filed on or after December 19, 1997, in which an intending immigrant seeks an immigrant visa, admission as an immigrant, or adjustment of status as: (Corrected 12/3/97; 62 FR 64048)

(A) An immediate relative under section 201(b)(2)(A)(i) of the Act, including orphans and any alien admitted as a K nonimmigrant when the alien seeks adjustment of status; (Revised effective 7/21/06; 71 FR 35732)

(B) A family-based immigrant under section 203(a) of the Act; or

(C) An employment-based immigrant under section 203(b) of the Act, if a relative (as defined in 8 CFR 213a.1) of the intending immigrant is a citizen or an alien lawfully admitted for permanent residence who either filed the employment-based immigrant petition or has a significant ownership interest in the entity that filed the immigrant visa petition on behalf of the intending immigrant. An affidavit of support under this section is not required, however, if the relative is a brother or sister of the intending immigrant, unless the brother or sister is a citizen. (Revised effective 7/21/06; 71 FR 35732)

(ii) Paragraph (a)(1) of this section shall not apply if the intending immigrant:

(A) Filed a visa petition on his or her own behalf pursuant to section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or (iii) of the Act, or who seeks to accompany or follow-to-join an immigrant who filed a visa petition on his or his own behalf pursuant to section 204(a)(1)(A)(ii), (iii), or (iv) or section 204(a)(1)(B)(ii) or (iii) of the Act; (Amended effective 7/21/06; 71 FR 35732)

(B) Seeks admission as an immigrant on or after December 19, 1997, in a category specified in paragraph (a)(2)(i) of this section with an immigrant visa issued on the basis of an immigrant visa application filed with the Department of State officer before December 19, 1997; (Revised effective 7/21/06; 71 FR 35732)

(C) Establishes, on the basis of the alien’s own Social Security Administration record or those of his or her spouse or parent(s), that he or she has already worked, or under section 213A(a)(3)(B) of the Act, can already be credited with, 40 qualifying quarters of coverage as defined under title II of the Social Security Act, 42 U.S.C. 401, et seq ; (Added effective 7/21/06; 71 FR 35732)

(D) Is a child admitted under section 211(a) of the Act and 8 CFR 211.1(b)(1); or (Added effective 7/21/06; 71 FR 35732)

(E) Is the child of a citizen, if the child is not likely to become a public charge (other than because of the provision of section 212(a)(4)(C) of the Act), and the child’s lawful admission for permanent residence will result automatically in the child’s acquisition of citizenship under section 320 of the Act, as amended. This exception applies to an alien orphan if the citizen parent(s) has (or have) legally adopted the alien orphan before the alien orphan’s acquisition of permanent residence, and if both adoptive parents personally saw and observed the alien orphan before or during the foreign adoption proceeding. An affidavit of support under this part is still required if the citizen parent(s) will adopt the alien orphan in the United States only after the alien orphan’s acquisition of permanent residence. If the citizen parent(s) adopted the alien orphan abroad, but at least one of the adoptive parents did not see and observe the alien orphan before or during the foreign adoption proceeding, then an affidavit of support under this part is still required, unless the citizen parent establishes that, under the law of the State of the alien orphan’s intended residence in the United States, the foreign adoption decree is entitled to recognition without the need for a formal administrative or judicial proceeding in the State of proposed residence. In the case of a child who immigrates as a Convention adoptee, as defined in 8 CFR 204.301, this exception applies if the child was adopted by the petitioner in the Convention country. An affidavit of support under this part is still required in the case of a child who immigrates as a Convention adoptee if the petitioner will adopt the child in the United States only after the child’s acquisition of permanent residence. (Amended effective 11/5/07; 72 FR 56832) (Added effective 7/21/06; 71 FR 35732)

(b) Affidavit of support sponsors. The following individuals must execute Form I-864 on behalf of the intending immigrant in order for the intending immigrant to be found admissible on public charge grounds:

(1) For immediate relatives and family-based immigrants. The person who filed the Form I-130 or Form I-600 immigrant visa petition (or the Form I-129F petition, for a K nonimmigrant seeking adjustment), the approval of which forms the basis of the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status as an immediate relative or a family-based immigrant, must execute an affidavit of support on behalf of the intending immigrant. If the intending immigrant is the beneficiary of more than one approved immigrant visa petition, it is the person who filed the petition that is actually the basis for the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status who must file an affidavit of support. (Revised effective 7/21/06; 71 FR 35732)

(2) For employment-based immigrants. A relative of an intending immigrant seeking an immigrant visa under section 203(b) of the Act must file an affidavit of support if the relative either filed the immigrant visa petition on behalf of the intending immigrant or owns a significant ownership interest in an entity that filed an immigrant visa petition on behalf of the intending immigrant, but only if the relative is a citizen or an alien lawfully admitted for permanent residence. If the intending immigrant is the beneficiary of more than one relative’s employment-based immigrant visa petition, it is the relative who filed the petition that is actually the basis for the intending immigrant’s eligibility to apply for an immigrant visa or adjustment of status who must file the Form I-864. (Revised effective 7/21/06; 71 FR 35732)

(c) Sponsorship requirements. (1)(i) General. A sponsor must be: (Revised effective 7/21/06; 71 FR 35732)

(A) At least 18 years of age;

(B) Domiciled in the United States or any territory or possession of the United States; and

(C)( 1 ) A citizen or an alien lawfully admitted for permanent residence in the case described in paragraph (a)(2)(i) of this section; or

( 2 ) A citizen or national or an alien lawfully admitted for permanent residence if the individual is a substitute sponsor or joint sponsor.

(ii) Determination of domicile. (A) If the sponsor is residing abroad, but only temporarily, the sponsor bears the burden of proving, by a preponderance of the evidence, that the sponsor’s domicile (as that term is defined in 8 CFR 213a.1) remains in the United States, provided, that a permanent resident who is living abroad temporarily is considered to be domiciled in the United States if the permanent resident has applied for and obtained the preservation of residence benefit under section 316(b) or section 317 of the Act, and provided further, that a citizen who is living abroad temporarily is considered to be domiciled in the United States if the citizen’s employment abroad meets the requirements of section 319(b)(1) of the Act.

(B) If the sponsor is not domiciled in the United States, the sponsor can still sign and submit an affidavit of support so long as the sponsor satisfies the Department of State officer, immigration officer, or immigration judge, by a preponderance of the evidence, that the sponsor will establish a domicile in the United States on or before the date of the principal intending immigrant’s admission or adjustment of status. The intending immigrant will be inadmissible under section 212(a)(4) of the Act, and the immigration officer or immigration judge must deny the intending immigrant’s application for admission or adjustment of status, if the sponsor has not, in fact, established a domicile in the United States on or before the date of the decision on the principal intending immigrant’s application for admission or adjustment of status. In the case of a sponsor who comes to the United States intending to establish his or her principal residence in the United States at the same time as the pri ncipal intending immigrant’s arrival and application for admission at a port-of-entry, the sponsor shall be deemed to have established a domicile in the United States for purposes of this paragraph, unless the sponsor is also a permanent resident alien and the sponsor’s own application for admission is denied and the sponsor leaves the United States under a removal order or as a result of the sponsor’s withdrawal of the application for admission.

(2) Demonstration of ability to support intending immigrants. In order for the intending immigrant to overcome the public charge ground of inadmissibility, the sponsor must demonstrate the means to maintain the intending immigrant at an annual income of at least 125 percent of the Federal poverty line. If the sponsor is on active duty in the Armed Forces of the United States (other than active duty for training) and the intending immigrant is the sponsor’s spouse or child, the sponsor’s ability to maintain income must equal at least 100 percent of the Federal poverty line.

(i) Proof of income. (A) The sponsor must include with the Form I-864 either a photocopy or an Internal Revenue Service-issued transcript of his or her complete Federal income tax return for the most recent taxable year (counting from the date of the signing, rather than the filing, of the Form I-864). However, the sponsor may, at his or her option, submit tax returns for the three most recent years if the sponsor believes that these additional tax returns may help in establishing the sponsor’s ability to maintain his or her income at the applicable threshold set forth in Form I-864P, Poverty Guidelines. Along with each transcript or photocopy, the sponsor must also submit as initial evidence copies of all schedules filed with each return and (if the sponsor submits a photocopy, rather than an IRS transcript of the tax return(s)) all Forms W-2 (if the sponsor relies on income from employment) and Forms 1099 (if the sponsor relies on income from sources documented on Forms 1099) in meeting the income threshold. The sponsor may also include as initial evidence: Letter(s) evidencing his or her current employment and income, paycheck stub(s) (showing earnings for the most recent six months, financial statements, or other evidence of the sponsor’s anticipated household income for the year in which the intending immigrant files the application for an immigrant visa or adjustment of status. By executing Form I-864, the sponsor certifies under penalty of perjury under United States law that the evidence of his or her current household in come is true and correct and that each transcript or photocopy of each income tax return is a true and correct transcript or photocopy of the return that the sponsor filed with the Internal Revenue Service for that taxable year.

(B) If the sponsor had no legal duty to file a Federal income tax return for the most recent tax year, the sponsor must explain why he or she had no legal duty to a file a Federal income tax return for that year. If the sponsor claims he or she had no legal duty to file for any reason other than the level of the sponsor’s income for that year, the initial evidence submitted with the Form I-864 must also include any evidence of the amount and source of the income that the sponsor claims was exempt from taxation and a copy of the provisions of any statute, treaty, or regulation that supports the claim that he or she had no duty to file an income tax return with respect to that income. If the sponsor had no legal obligation to file a Federal income tax return, he or she may submit other evidence of annual income. The fact that a sponsor had no duty to file a Federal income tax return does not relieve the sponsor of the duty to file Form I-864.

(C)(1) The sponsor’s ability to meet the income requirement will be determined based on the sponsor’s household income. In establishing the household income, the sponsor may rely entirely on his or her personal income, if it is sufficient to meet the income requirement. The sponsor may also rely on the income of the sponsor’s spouse and of any other person included in determining the sponsor’s household size, if the spouse or other person is at least 18 years old and has completed and signed an affidavit of support. A per son does not need to be a U.S. citizen, national, or alien lawfully admitted for permanent residence in order to sign an affidavit of support.

(2) Each individual who signs Form I-864A agrees, in consideration of the sponsor’s signing of the Form I-864, to provide to the sponsor as much financial assistance as may be necessary to enable the sponsor to maintain the intending immigrants at the annual income level required by section 213A(a)(1)(A) of the Act, to be jointly and severally liable for any reimbursement obligation that the sponsor may incur, and to submit to the personal jurisdiction of any court that has subject matter jurisdiction over a civil suit to enforce the contract or the affidavit of support. The sponsor, as a party to the contract, may bring suit to enforce the contract. The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts.

(3) If there is no spouse or child immigrating with the intending immigrant, then there will be no need for the intending immigrant to sign an affidavit of support, even if the sponsor will rely on the continuing income of the intending immigrant to meet the income requirement. If, however, the sponsor seeks to rely on an intending immigrant’s continuing income to establish the sponsor’s ability to support the intending immigrant’s spouse or children, then the intending immigrant whose income is to be relied on must sign the Form I-864A.

(4) If the sponsor relies on the income of any individual who has signed Form I-864A, the sponsor must also include with the Form I-864 and Form I-864A, with respect to the person who signed the Form I-864A, the initial evidence required under paragraph (c)(2)(i)(A) of this section. The household member’s tax return(s) must be for the same tax year as the sponsor’s tax return(s). An individual who signs Form I-864A certifies, under penalty of perjury, that the submitted transcript or photocopy of the tax return is a true and correct transcript or photocopy of the Federal income tax return filed with the Internal Revenue Service, and that the information concerning that person’s employment and income is true and correct.

(5) If the person who signs the Form I-864A is not an intending immigrant, and is any person other than the sponsor’s spouse or a claimed dependent of the sponsor, the sponsor must also attach proof that the person is a relative (as defined in 8 CFR 213a.1) of the sponsor and that the Form I-864A signer has the same principal residence as the sponsor. If an intending immigrant signs an affidavit of supportA, the sponsor must also provide proof that the sponsored immigrant has the same principal residence as the sponsor, unless the sponsored immigrant is the sponsor’s spouse.

(D) Effect of failure to file income tax returns. If a sponsor, substitute sponsor, joint sponsor, or household member did not file a Federal income tax return for the year for which a transcript or photocopy must be provided, the Form I-864 or Form I-864A will not be considered sufficient to satisfy the requirements of section 213A of the Act, even if the household income meets the requirements of section 213A of the Act, unless the sponsor, substitute sponsor, joint sponsor, or household member proves, by a preponderance of the evidence, that he or she had no duty to file. If the sponsor, substitute sponsor, joint sponsor or household member cannot prove that he or she had no duty to file, then the Form I-864 or Form I-864A will not be considered sufficient to satisfy the requirements of section 213A of the Act until the sponsor, substitute sponsor, joint sponsor, or household member proves that he or she has satisfied the obligation to file the tax return and provides a transcript or copy of the return.

(ii) Determining the sufficiency of an affidavit of support. The sufficiency of an affidavit of support shall be determined in accordance with this paragraph.

(A) Income. The sponsor must first calculate the total income attributable to the sponsor under paragraph (c)(2)(i)(C) of this section for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status.

(B) Number of persons to be supported. The sponsor must then determine his or her household size as defined in 8 CFR 213a.1.

(C) Sufficiency of income. Except as provided in this paragraph, or in paragraph (a)(1)(v)(B) of this section, the sponsor’s affidavit of support shall be considered sufficient to satisfy the requirements of section 213A of the Act and this section if the reasonably expected household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status, calculated under paragraph (c)(2)(iii)(A) of this section, would equal at least 125 percent of the Federal poverty line for the sponsor’s household size as defined in 8 CFR 213a.1 under the Poverty Guidelines in effect when the intending immigrant filed the application for an immigrant visa or for adjustment of status, except that the sponsor’s income need only equal at least 100 percent of the Federal poverty line for the sponsor’s household size, if the sponsor is on active duty (other than for training) in the Armed Forces of the United States and the intending immigrant is the sponsor’s spouse or child. The sponsor’s household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status shall be given the greatest evidentiary weight; any tax return and other information relating to the sponsor’s financial history will serve as evidence tending to show whether the sponsor is likely to be able to maintain his or her income in the future. If the projected household income for the year in which the intending immigrant filed the application for an immigrant visa or adjustment of status meets the applicable income threshold, the affidavit of support may be held to be insufficient on the basis of the household income but only if, on the basis of specific facts, including a material change in employment or income history of the sponsor, substitute sponsor, joint sponsor or household member, the number of aliens included in Forms I-864 that the sponsor has signed but that have not yet entered into force in accordance with paragraph (e) of this section, or other relevant facts, it is reasonable to infer that the sponsor will not be able to maintain his or her household income at a level sufficient to meet his or her support obligations.

(iii) Inability to meet income requirement. (A) If the sponsor is unable to meet the minimum income requirement in paragraph (c)(2)(iii) of this section, the intending immigrant is inadmissible under section 212(a)(4) of the Act unless:

(1) The sponsor, the intending immigrant or both, can meet the significant assets provision of paragraph (c)(2)(iv)(B) of this section; or

(2) A joint sponsor executes a separate Form I-864.

(B) Significant assets. The sponsor may submit evidence of the sponsor’s ownership of significant assets, such as savings accounts, stocks, bonds, certificates of deposit, real estate, or other assets. An intending immigrant may submit evidence of the intending immigrant’s assets as a part of the affidavit of support, even if the intending immigrant is not required to sign an affidavit of support. The assets of any person who has signed an affidavit of support may also be considered in determining whether the assets are sufficient to meet this requirement. To qualify as “significant assets” the combined cash value of all the assets (the total value of the assets less any offsetting liabilities) must exceed:

(1) If the intending immigrant is the spouse or child of a United States citizen (and the child has reached his or her 18th birthday), three times the difference between the sponsor’s household income and the Federal poverty line for the sponsor’s household size (including all immigrants sponsored in any affidavit of support in force or submitted under this section);

(2) If the intending immigrant is an alien orphan who will be adopted in the United States after the alien orphan acquires permanent residence (or in whose case the parents will need to seek a formal recognition of a foreign adoption under the law of the State of the intending immigrant’s proposed residence because at least one of the parents did not see the child before or during the adoption), and who will, as a result of the adoption or formal recognition of the foreign adoption, acquire citizenship under section 320 of the Act, the difference between the sponsor’s household income and the Federal poverty line for the sponsor’s household size (including all immigrants sponsored in any affidavit of support in force or submitted under this section);

(3) In all other cases, five times the difference between the sponsor’s household income and the Federal poverty line for the sponsor’s household size (including all immigrants sponsored in any affidavit of support in force or submitted under this section).

(C) Joint sponsor. A joint sponsor must execute a separate affidavit of support on behalf of the intending immigrant(s) and be willing to accept joint and several liability with the sponsor or substitute sponsor. A joint sponsor must meet all the eligibility requirements under paragraph (c)(1) of this section, except that the joint sponsor is not required to file a visa petition on behalf of the intending immigrant. The joint sponsor must demonstrate his or her ability to support the intending immigrant in the manner specified in paragraph (c)(2) of this section. A joint sponsor’s household income must meet or exceed the income requirement in paragraph (c)(2)(iii) of this section unless the joint sponsor can demonstrate significant assets as provided in paragraph (c)(2)(iv)(A) of this section. The joint sponsor’s household income must equal at least 125 percent of the Poverty Guidelines for the joint sponsor’s household size, unless the joint sponsor is on active duty in the Armed Forces and the intending immigrant is the joint sponsor’s spouse or child, in which case the joint sponsor’s household income is sufficient if it equals at least 100 percent of the Poverty Guidelines for the joint sponsor’s household size. An intending immigrant may not have more than one joint sponsor, but, if the joint sponsor’s household income is not sufficient to meet the income requirement with respect to the principal intending immigrant, any spouse and all the children who, under section 203(d) of the Act, seek to accompany the principal intending immigrant, then the joint sponsor may specify on the affidavit that it is submitted only on behalf of the principal intending immigrant and those accompanying family members specifically listed on the affidavit. The remaining accompanying family members will then be inadmissible under section 212(a)(4) of the Act unless a second joint sponsor submits an affidavit(s) on behalf of all the remaining family members who seek to accompany the principal intending immigrant and who are not included in the first joint sponsor’s affidavit. There may not be more than two joint sponsors for the family group consisting of the principal intending immigrant and the accompanying spouse and children.

(D) Substitute sponsor. In a family-sponsored case, if the visa petitioner dies after approval of the visa petition, but the U.S. Citizenship and Immigration Services determines, under 8 CFR 205.1(a)(3)(i)(C), that for humanitarian reasons it would not be appropriate to revoke approval of the visa petition, then a substitute sponsor, as defined in 8 CFR 213a.1, may sign the Form I-864. The substitute sponsor must meet all the requirements of this section that would have applied to the visa petitioner, had the visa petitioner survived and been the sponsor. The substitute sponsor’s household income must equal at least 125% of the Poverty Guidelines for the substitute sponsor’s household size, unless the intending immigrant is the substitute sponsor’s spouse or child and the substitute sponsor is on active duty in the Armed Forces (other than active duty for training), in which case the substitute sponsor’s household income is sufficient if it equals at least 100% of the Poverty Guidelines for the substitute sponsor’s household size. If the substitute sponsor’s household income is not sufficient to meet the requirements of section 213A(a)(f)(1)(E) of the Act and paragraph (c)(2) of this section, the alien will be inadmissible unless a joint sponsor signs an affidavit of support.

(iv) Remaining inadmissibility on public charge grounds. Notwithstanding the filing of a sufficient affidavit of support under section 213A of the Act and this section, an alien may be found to be inadmissible under section 212(a)(4) of the Act if the alien’s case includes evidence of specific facts that, when considered in light of section 212(a)(4)(B) of the Act, support a reasonable inference that the alien is likely at any time to become a public charge.

(v) Verification of employment, income, and assets. The Federal Government may pursue verification of any information provided on or with Form I-864, including information on employment, income, or assets, with the employer, financial or other institutions, the Internal Revenue Service, or the Social Security Administration. To facilitate this verification process, the sponsor, joint sponsor, substitute sponsor, or household member must sign and submit any necessary waiver form when directed to do so by the immigration officer, immigration judge, or Department of State officer who has jurisdiction to adjudicate the case to which the Form I-864 or I-864A relates. A sponsor’s, substitute sponsor’s, joint sponsor’s, or household member’s failure or refusal to sign any waiver needed to verify the information when directed to do so constitutes a withdrawal of the Form I-864 or I-864A, so that, in adjudicating the intending immigrant’s application for an immigrant visa or adjustment of status, the Form I-864 or Form I-864A will be deemed not to have been filed.

(vi) Effect of fraud or material concealment or misrepresentation. an affidavit of support or Form I-864A is insufficient to satisfy the requirements of section 213A of the Act and this part, and the affidavit of support shall be found insufficient to establish that the intending immigrant is not likely to become a public charge, if the Department of State officer, immigration officer or immigration judge finds that Form I-864 or Form I-864A is forged, counterfeited, or otherwise falsely executed, or if the Form I-864 or Form I-864A conceals or misrepresents facts concerning household size, household income, employment history, or any other material fact. Any person who knowingly participated in the forgery, counterfeiting, or false production of an affidavit of support or Form I-864A, or in any concealment or misrepresentation of any material fact, may be subject to a civil penalty under section 274C of the Act, to criminal prosecution, or to both, to the extent permitted by law. If the person is an alien, the person may also be subject to removal from the United States.

(d) Legal effect of affidavit of support. Execution of an affidavit of support under this section creates a contract between the sponsor and the U.S. Government for the benefit of the sponsored immigrant, and of any Federal, State, or local governmental agency or private entity that administers any means-tested public benefits program. The sponsored immigrant, or any Federal, State, or local governmental agency or private entity that provides any means-tested public benefit to the sponsored immigrant after the sponsored immigrant acquires permanent resident status, may seek enforcement of the sponsor’s obligations through an appropriate civil action.

(e) Commencement and termination of support obligation. (1) With respect to any intending immigrant, the support obligation and change of address obligation imposed on a sponsor, substitute sponsor, or joint sponsor under Form I-864, and any household member’s support obligation under Form I-864A, all begin when the immigration officer or the immigration judge grants the intending immigrant’s application for admission as an immigrant or for adjustment of status on the basis of an application for admission or adjustment that included the Form I-864 or Form I-86 4A. Any person completing and submitting an affidavit of support as a joint sponsor or an affidavit of support as a household member is not bound to any obligations under section 213A of the Act if, notwithstanding his or her signing of an affidavit of support or Form I-864A, the Department of State officer (in deciding an application for an immigrant visa) or the immigration officer or immigration judge (in deciding an application for admission or adjustment of status) includes in the decision a specific finding that the sponsor or substitute sponsor’s own household income is sufficient to meet the income requirements under section 213A of the Act. (Paragraph (e) revised effective 7/21/06; 71 FR 35732)

(2)(i) The support obligation and the change of address reporting requirement imposed on a sponsor, substitute sponsor and joint sponsor under Form I-864, and any household member’s support obligation under Form I-864A, all terminate by operation of law when the sponsored immigrant:

(A) Becomes a citizen of the United States;

(B) Has worked, or can be credited with, 40 qualifying quarters of coverage under title II of the Social Security Act, 42 U.S.C. 401, et seq., provided that the sponsored immigrant is not credited with any quarter beginning after December 31, 1996, during which the sponsored immigrant receives or received any Federal means-tested public benefit;

(C) Ceases to hold the status of an alien lawfully admitted for permanent residence and departs the United States (if the sponsored immigrant has not filed USCIS Form I-407, Abandonment of Lawful Permanent Resident Status, this provision will apply only if the sponsored immigrant is found in a removal proceeding to have abandoned that status while abroad);

(D) Obtains in a removal proceeding a new grant of adjustment of status as relief from removal (in this case, if the sponsored immigrant is still subject to the affidavit of support requirement under this part, then any individual(s) who signed the Form I-864 or I-864A in relation to the new adjustment application will be subject to the obligations of this part, rather than those who signed an affidavit of support or I-864A in relation to an earlier grant of admission as an immigrant or of adjustment of status); or

(E) Dies.

(ii) The support obligation under Form I-864 also terminates if the sponsor, substitute sponsor or joint sponsor dies. A household member’s obligation under Form I-864A terminates when the household member dies. The death of one person who had a support obligation under an affidavit of support or Form I-864A does not terminate the support obligation of any other sponsor, substitute sponsor, joint sponsor, or household member with respect to the same sponsored immigrant.

(3) The termination of the sponsor’s, substitute sponsor’s, or joint sponsor’s obligations under Form I-864 or of a household member’s obligations under Form I-864A does not relieve the sponsor, substitute sponsor, joint sponsor, or household member (or their respective estates) of any reimbursement obligation under section 213A(b) of the Act and this section that accrued before the support obligation terminated.

(f) Withdrawal of Form I-864 or Form I-864A. (1) In an immigrant visa case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to a Department of State officer, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member if he or she does so in writing and submits the document to the Department of State officer before the actual issuance of an immigrant visa to the intending immigrant. Once the intending immigrant has obtained an immigrant visa, a sponsor, substitute sponsor, joint sponsor, or household member cannot disavow his or her agreement to act as a sponsor, joint sponsor, or household member unless the person or entity who filed the visa petition withdraws the visa petition in writing, as specified in 8 CFR 205.1(a)(3)(i)(A)or 8 CFR 205.1(a)(3)(iii)(C), and also notifies the Department of State officer who issued the visa of the withdrawal of the petition.

(2) In an adjustment of status case, once the sponsor, substitute sponsor, joint sponsor, household member, or intending immigrant has presented a signed Form I-864 or Form I-864A to an immigration officer or immigration judge, the sponsor, substitute sponsor, joint sponsor, or household member may disavow his or her agreement to act as sponsor, substitute sponsor, joint sponsor, or household member only if he or she does so in writing and submits the document to the immigration officer or immigration judge before the decision on the adjustment application.

(g) Aliens who accompany or follow-to-join a principal intending immigrant. (1) To avoid inadmissibility under section 212(a)(4) of the Act, an alien who applies for an immigrant visa, admission, or adjustment of status as an alien who is accompanying, as defined in 22 CFR 40.1, a principal intending immigrant must submit clear and true photocopies of the signed Form(s) I-864 (and any Form(s) I-864A) filed on behalf of the principal intending immigrant. (Paragraph (g) added effective 7/21/06; 71 FR 35732)

(2)(i) To avoid inadmissibility under section 212(a)(4) of the Act, an alien who applies for an immigrant visa, admission, or adjustment of status as an alien who is following-to-join a principal intending immigrant must submit a new affidavit of support, together with all documents or other evidence necessary to prove that the new affidavits comply with the requirements of section 213A of the Act and 8 CFR part 213a.

(ii) When paragraph (g)(2)(i) of this section requires the filing of a new affidavit for an alien who seeks to follow-to-join a principal sponsored immigrant, the same sponsor who filed the visa petition and affidavit of support for the principal sponsored immigrant must file the new affidavit on behalf of the alien seeking to follow-to-join. If that person has died, then the alien seeking to follow-to-join is inadmissible unless a substitute sponsor, as defined by 8 CFR 213a.1, signs a new affidavit that meets the requirements of this section. Persons other than the person or persons who signed the original joint affidavit on behalf of an lien who seeks to follow-to-join a principal sponsored immigrant.

(iii) If a joint sponsor is needed in the case of an alien who seeks to follow-to-join a principal sponsored immigrant, and the principal sponsored immigrant also required a joint sponsor when the principal sponsored immigrant immigrated, that same person may, but is not required to be, the joint sponsor for the alien who seeks to follow-to-join the principal sponsored immigrant.

Posted in Adjustment of Status, Affidavit of Support I-864, I-864P, Poverty Guidelines | Tagged , | Leave a comment

Update: New Illinois Temporary Visitor Driver’s License (TVDL)

Posted on October 26, 2013 by Mike Baker

On January 27, 2013, the governor signed Senate Bill 957 into law allowing non-visa status individuals to obtain a temporary visitor driver’s license (TVDL). In December 2013, non-visa status applicants will begin the process of obtaining a TVDL. Appointments are required. Please review the required documents in the links provided prior to your appointment.

The Secretary of State’s Office will begin accepting appointments for the Temporary Visitors Driver’s License (TVDL) in the middle of November. Please check back for updated information.

What requirements will applicants need to meet to get a TVDL?

To qualify for a TVDL, an undocumented immigrant must

  • Prove that she has lived in Illinois for at least one year;
  • Provide a valid unexpired passport or consular ID;
  • Provide other proof of her identity and residency that the Secretary of State might require;
  • Provide documentation that she is not eligible for a Social Security Number;
  • Pass all applicable vision, written, and road tests;
  • Show proof of insurance for the vehicle she uses for the road test;
  • Pay a $30 fee.

What will the application process be?

1st step (making the appointment):

Applicants will need to request an appointment at one of 25 Secretary of State facilities by going online at www.cyberdriveillinois.com or by calling a toll free number which will be announced in November.

The TVDL applications will be made available at 25 facilities throughout the state. 13 will be in the city of Chicago and 12 will be in downstate Illinois.

2nd step (day of appointment):

Applicants will check-in at the facility at their scheduled appointment time. A Secretary of State employee will check the applicant’s documents. The applicant will take the vision test, pay the fee, take the written test and road test, and sign the application form which will be scanned. The applicant’s picture and signature will be taken.

Applicants will not receive their TVDL on the day of the appointment.

3rd step (receiving the card):

The card will be mailed to the applicant after the application information has been verified. Most applicants should receive their TVDL within 15-20 business days.

If the application is not approved, the applicant will receive a denial letter. The letter will include a telephone number to call to so that the applicant can learn how to resolve the problem and apply again.

Will the Secretary of State still be checking my driving record?

The Secretary of State will be checking an applicant’s previous driving record.

Anyone who gave false information to the Secretary of State on a previous license or ID application must serve a one year suspension before he or she can be eligible to receive a TVDL.

What is the process for serving the suspension?

Individuals who gave false information to the Secretary of State on a previous license application will have a hearing at the Secretary of State. At a minimum, the individual will have to serve a one year suspension period. The suspension period will begin the date the individual comes forward and has the hearing with the Secretary of State.

What is the renewal process?

There will be no renewals by mail or online. TVDL holders will need to make an appointment to re-apply for a new TVDL up to 90 days prior to the expiration date.

Where will applicants be able to apply?

The Secretary of State intends to make TVDL applications available at most of its facilities. (Currently TVDLs are available at only certain facilities.)

Will applicants get a TVDL the same day as they apply?

No. The Secretary of State will need to review and verify the documents that get submitted with the application. SoS will then issue the TVDL from a central facility and send it to the applicant by mail.

Will the Secretary of State have enough resources to implement this law?

The Secretary of State estimates that its first-year costs to implement TVDLs would be approximately $800,000. SoS will therefore have enough money to pay for TVDLs if as few as 30,000 individuals apply (out of potentially 250,000), each paying $30 each.

Is the TVDL valid as proof of identity?

No—and as a result, the TVDL cannot be used for voting, getting a firearms identification card, boarding an airplane, or entering a federal building. However, hospitals, first responders, and others could still use the TVDL as a document to indicate the person’s name and address. TVDL holders could still provide passports and consular identification cards as proof of identity.

Could the TVDL be used as a bond card?

Yes. Drivers with TVDLs can produce the card as bond during a traffic stop, just as drivers with regular licenses can. They would get ticketed rather than being arrested (because they cannot produce bond) and ending up in the criminal justice and immigration enforcement pipeline. Police time and jail space will no longer be taken up with so many motorists who are arrested for driving without a license.

What happens if someone with a TVDL drives without insurance?

TVDL holders will be subject to all provisions of the Vehicle Code, including those requiring insurance coverage. In fact, anyone applying for any license, including a TVDL, must prove that the vehicle she is using for her road test is insured. Finally, if someone with a TVDL is stopped and cannot show proof of insurance, the TVDL becomes invalid, and the motorist can be ticketed for driving without a license.

If someone with a TVDL is stopped, will law enforcement know that the person is undocumented?

TVDLs will be available to both visa holders and undocumented immigrants, so law enforcement officers cannot assume that anyone with a TVDL is undocumented.

Does the TVDL grant any status to undocumented immigrants?

Immigration status is a matter of federal law. TVDLs issued under state law cannot convey any immigration status. TVDLs would do nothing more than enable undocumented immigrants to comply with our state’s traffic laws.

What is a Temporary Visitor Driver’s Licenses (TVDL)?

The TVDL is an existing document that is now available to many foreign-born individuals living in Illinois. Since 2005, Illinois has issued TVDLs to individuals who do not have SSNs but who have lawful immigration status. Such individuals include foreign students, spouses and children of temporary workers, long-term visitors, and others who are not authorized to work under our immigration laws. Many of these individuals still need to drive on a regular basis to get to classes, shop, take their children to school, or attend to other family and personal business. SB 957 makes TVDLs available to undocumented motorists who also need to drive for these purposes.

TVDLs are visually distinct from regular licenses: TVDLs current use a purple color scheme, as opposed to the red scheme used for regular licenses. TVDLs are also clearly marked as “not valid for identification.”

Why TVDLs instead of regular licenses?

The federal REAL ID Act requires that states can issue regular driver’s licenses only to those individuals with lawful immigration status. Because they are visually distinct from regular licenses and are marked as not valid for identification, TVDLs already comply with REAL ID while still enabling undocumented immigrants to drive legally.

Posted in Temporary Visitor Driver’s License, TVDL, Update: Temporary Visitor Driver’s License Illinois | Tagged | Leave a comment

Foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent

Posted on October 26, 2013 by Mike Baker

Child Residing Outside of the United States (INA 322)

A. General Requirements: Biological, Legitimated, or Adopted Child Residing Outside the United States[1] See Nationality Chart 4.

The CCA amended the INA to cover foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent.[2] See INA 322.

A biological, legitimated, or adopted child who regularly resides outside of the United States is eligible for naturalization if all of the following conditions have been met:

  • The child is under 18 years of age.

  • The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, or a person who does not object to the application if the U.S. citizen parent is deceased.

  • The child is lawfully admitted, physically present, and maintaining a lawful status in the United States at the time the application is approved and time of naturalization.

There are certain exceptions to these requirements for children of U.S. citizens in the U.S. armed forces accompanying their parent abroad on official orders.

B. Eligibility to Apply on the Child’s Behalf

Typically, a child’s U.S. citizen parent files a Certificate of Citizenship application on the child’s behalf. If the U.S. citizen parent has died, the child’s citizen grandparent or the child’s U.S. citizen legal guardian may file the application on the child’s behalf within five years of the parent’s death.[5] As of November 2, 2002, a U.S. citizen grandparent or U.S. citizen legal guardian became eligible to apply for naturalization under this provision on behalf of a child. See the 21st Century Department of Justice Appropriations Authorization Act for Fiscal 2002, Pub. L. 107-273 (November 2, 2002), which amended INA 322 to permit U.S. citizen grandparents or U.S. citizen legal guardians to apply for naturalization on behalf of a child if the child’s U.S. citizen parent has died.

C. Physical Presence of the U.S. Citizen Parent or Grandparent[6] See INA 322(a)(2). See 8 CFR 322.2(a)(2).

1. Physical Presence of Child’s U.S. Citizen Parent

A child’s U.S. citizen parent must meet the following physical presence requirements:

  • The parent has been physically present in the United States or its outlying possessions for at least five years; and

  • The parent met such physical presence for at least 2 years after he or she reached 14 years of age.

A parent’s physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the parent was not a U.S. citizen.

2. Exception for U.S. Citizen Member of the U.S. Armed Forces

The child’s U.S. citizen service member parent may count any period of time he or she has resided abroad on official orders as physical presence in the United States.[7] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section C, Children of Military Members. See INA 322(d). See 8 CFR 322.2(c).

3. Reliance on Physical Presence of Child’s U.S. Citizen Grandparent

If the child’s parent does not meet the physical presence requirement, the child may rely on the physical presence of the child’s U.S. citizen grandparent to meet the requirement. In such cases, the officer first must verify that the citizen grandparent, the citizen parent’s mother or father, is a U.S. citizen at the time of filing. If the grandparent has died, the grandparent must have been a U.S. citizen and met the physical presence requirements at the time of his or her death.

Like in the case of the citizen parent, the officer also must ensure that:

  • The U.S. citizen grandparent has been physically present in the United States or its outlying possessions for at least five years; and

  • The U.S. citizen grandparent met such physical presence for at least 2 years after he or she reached 14 years of age.

Like the citizen parent, a grandparent’s physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the grandparent was not a U.S. citizen.

D. Temporary Presence by Lawful Admission and Status in United States

1. Temporary Presence and Status Requirements

In most cases, the citizenship process for a child residing abroad cannot take place solely overseas.

  • The child is required to maintain the lawful status that he or she was admitted under while in the United States;[9] See INA 322(a)(5). and

2. Exception for Child of U.S. Citizen Service Member of the U.S. Armed Forces

Certain children of U.S. citizen members of the U.S. armed forces are not required to be lawfully admitted to or physically present in the United States.[11] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits. See INA 322(d). See 8 CFR 322.2(c).

E. Application for Citizenship and Issuance of Certificate under Section 322 (Form N-600K)

A U.S. citizen parent of a biological, legitimated, or adopted child born outside of the United States who did not acquire citizenship automatically may file an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) for the child to become a U.S. citizen and obtain a Certificate of Citizenship. The application may be filed from outside of the United States.

If the U.S. citizen parent has died, the child’s U.S. citizen grandparent or U.S. citizen legal guardian may submit the application, provided the application is filed not more than five years after the death of the U.S. citizen parent.[12] See 8 CFR 322.3(a).

The child of a U.S. citizen member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to citizenship and naturalization.

F. Documentation and Evidence

The applicant must submit the following required documents unless such documents are already contained in USCIS administrative record or do not apply.[13] See 8 CFR 322.3(b).

  • The child’s birth certificate or record.

  • Marriage certificate of child’s parents, if applicable.

  • Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed, for example:

    • Divorce Decree, or

    • Death Certificate.

  • Evidence of United States citizenship of parent:

    • Birth Certificate,

    • Naturalization Certificate,

    • FS-240, Consular Report of Birth Abroad,

    • A valid unexpired United States Passport, or

    • Certificate of Citizenship.

  • Documents verifying legitimation according to the laws of the child’s residence or domicile or father’s residence or domicile if the child was born out of wedlock.

  • Documentation of legal custody in the case of divorce, legal separation, or adoption.

  • Documentation establishing that the U.S. citizen parent or U.S. citizen grandparent meets the required physical presence requirements, such as school records, military records, utility bills, medical records, deeds, mortgages, contracts, insurance policies, receipts, or attestations by churches, unions, or other organizations.

  • Evidence that the child is present in the United States pursuant to a lawful admission and is maintaining such lawful status or evidence establishing that the child qualifies for an exception to these requirements as provided for children of members of the U.S. armed forces.[14] See INA 322(d)(2). Such evidence may be presented at the time of interview when appropriate.

  • Copy of the full, final adoption decree, if applicable

    • For a Hague Convention adoptee applying under INA 322, a copy of the notice of approval of Convention adoptee petition and its supporting documentation, or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IH-3 (Hague Convention Orphan adopted abroad by a U.S. citizen) or IH-4 (Hague Convention Orphan to be adopted by a U.S. citizen).[17] If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

  • Evidence of all legal name changes, if applicable, for the child, U.S. citizen parent, U.S. citizen grandparent or U.S. citizen legal guardian.

An applicant does not need to submit documents that were submitted in connection with:

  • An immigrant visa application retained by the American Consulate for inclusion in the immigrant visa package, or

  • An immigrant petition or application and included in a USCIS administrative file.

If necessary, an officer may continue the application to request additional documentation to make a decision on the application.

G. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K). This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age.[18] See 8 CFR 322.4. USCIS, however, waives the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records or if any of the following documentation is submitted along with the application.[19] See 8 CFR 341.2. See Section F, Documentation and Evidence.

H. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

If an officer approves the Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K), USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.[20] See 8 CFR 322.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[21] See INA 337(a). See 8 CFR 341.5(b). USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.

Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.

2. Denial of Application

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.[22] See 8 CFR 322.5(b) and 8 CFR 103.3(a). An applicant may file an appeal within 30 days of service of the decision.

Previous Chapter 4 Top of Page Chapter 6 Next

Footnotes

1. [^]

See Nationality Chart 4.

2. [^]

See INA 322.

3. [^]

Adoptive parent must meet requirements of either INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

4. [^]

See Section C, Physical Presence of U.S. Citizen Parent or Grandparent.

5. [^]

As of November 2, 2002, a U.S. citizen grandparent or U.S. citizen legal guardian became eligible to apply for naturalization under this provision on behalf of a child. See the 21st Century Department of Justice Appropriations Authorization Act for Fiscal 2002, Pub. L. 107-273 (November 2, 2002), which amended INA 322 to permit U.S. citizen grandparents or U.S. citizen legal guardians to apply for naturalization on behalf of a child if the child’s U.S. citizen parent has died.

6. [^]

See INA 322(a)(2). See 8 CFR 322.2(a)(2).

7. [^]

See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section C, Children of Military Members. See INA 322(d). See 8 CFR 322.2(c).

8. [^]

See INA 322(a)(5). See 8 CFR 322.2(a)(5).

9. [^]

See INA 322(a)(5).

10. [^]

See INA 322(b). See Section G, Decision and Oath of Allegiance.

11. [^]

See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits. See INA 322(d). See 8 CFR 322.2(c).

12. [^]

See 8 CFR 322.3(a).

13. [^]

See 8 CFR 322.3(b).

14. [^]

See INA 322(d)(2).

15. [^]

See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child.

16. [^]

If admitted as an IR-4 because there was no adoption abroad, the parent(s) must have completed the adoption in the United States. If admitted as an IR-4 because the parent(s) obtained the foreign adoption without having seen the child, the parent(s) must establish that they have either “readopted” the child or obtained recognition of the foreign adoption in the State of residence (this requirement can be waived if there is a statute or precedent decision that clearly shows that the foreign adoption is recognized in the State of residence). See 8 CFR 320.1.

17. [^]

If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

18. [^]

See 8 CFR 322.4.

19. [^]

See 8 CFR 341.2. See Section F, Documentation and Evidence.

20. [^]

See 8 CFR 322.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

21. [^]

See INA 337(a). See 8 CFR 341.5(b).

22. [^]

See 8 CFR 322.5(b) and 8 CFR 103.3(a).

Resources

Legal Authorities
INA 101(c) – Definition of child for citizenship and naturalization
INA 322, 8 CFR 322 – Children residing outside the United States
Posted in Child Citizenship Act of 2000, Citizenship and Naturalization policies and procedures, Citizenship for Children, Foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent | Leave a comment

U.S Citizenship for Children: Birth, Acquisition, Derivation

Posted on October 7, 2013 by Mike Baker

Children can be or become citizens through their parents.

Children can automatically become United States citizens, even if they were born outside of the United States. In addition, a United States citizen parent can apply for the naturalization of his or her children.

There are three ways a child automatically becomes a citizen:

  • Birth: Child is born in the United States or its territories.
  • Acquisition: Child is born outside of the United States or its territories, but acquires citizenship at birth through a United States citizen parent.
  • Derivation: Child becomes a citizen before age 18 on the basis of one parent’s citizenship. The parent may be a citizen by birth or by naturalization.

Territories = The current territories of the United States are Puerto Rico, U.S. Virgin Islands, Guam, and the Northern Mariana Islands. “I am a citizen because I was born in a United States territory.”

note: Although citizenship is automatic in these cases, the child may not have proof of citizenship. This is why the child may apply for a United States passport or a Certificate of Citizenship. Both documents are proof of citizenship. There is one way a child can apply to become a citizen.

Naturalization: Citizen parent applies for a Certificate of Citizenship on child’s behalf. Child must complete the naturalization process before age 18.

Acquisition of Citizenship

Children can acquire citizenship at birth when they are born outside of the United States. You may have acquired citizenship at birth if you had at least one United States citizen parent. The laws for acquiring citizenship at birth have changed often over the years. Much depends on when you were born and what law for acquisition of citizenship was in effect at that time.

Current requirements

  • (children born after November 14, 1986)
  • Child with two Citizen parents
  • One parent must have been physically present in the United States or its possessions at any time before the child’s birth.
  • Child with One Citizen parent and One national parent
  • The citizen parent must have been physically present in the United States or its possessions for at least one continuous year before the child’s birth.
  • Child with One Citizen parent
  • The citizen parent must have been physically present in the United States for five years before the child’s birth. At least two of the five years must be after the citizen parent was 14 years old. However, if the child was born in a possession, the citizen parent must have been physically present in the United States or its possessions for at least one continuous year before the child’s birth.
  • Child Born Out of wedlock to a united states Citizen Mother
  • The citizen mother must have been physically present in the United States or its possessions for one continuous year before the child’s birth.

possessions = Currently the possessions of the United States include American Samoa, Swains Island and the United States territories of Puerto Rico, U.S. Virgin Islands, Guam, and the Northern Mariana Islands. “My mother lived in a U.S. possession before I was born.” national = A non-citizen born in a United States possession. “My father is a national because he was born in American Samoa.” out of wedlock = Born of parents who are not married. “He was born out of wedlock, but then his parents married when he was six months old.”

Documenting Birth Abroad

A Consular Report of Birth Abroad of a Citizen of the United States (Form FS-240) is an official document certifying acquisition of citizenship for a child born outside of the United States. This document provides the same evidence of citizenship as a United States passport, a Certificate of Naturalization, or a Certificate of Citizenship. However, a United States passport is the most useful document to have. The application for a consular report must be submitted before the child’s 18th birthday and the child must be living outside the United States.

Procedures

The child’s parent or legal guardian completes an Application for Consular Report of Birth Abroad of a Citizen of the United States (Form DS-2029). Do not sign the form until directed to do so. The application is normally made in the consulate of the country where the child was born. Check the U.S. Department of State website for the current fee.

Evidence of the child’s birth is needed, as well as evidence of the parent(s)’ United States citizenship, marriage (if applicable), and previous physical presence in the United States. If the parents are unmarried and the father is a citizen and the mother a non-citizen, the consular officer usually requires that the father sign an affidavit saying that he is the child’s biological father and that he will support the child financially. Additional evidence such as divorce decrees from previous marriages or blood tests may also be required.

The child is required to go to the consulate in person with the parent or guardian.

Once the consular officer approves the application, he or she signs and issues the consular report of birth (Form FS-240).

Derivation Of Citizenship

Derivation of citizenship is when a child automatically becomes a citizen on the basis of one parent’s citizenship. The parent may be a citizen by birth or by naturalization. As with acquisition of citizenship, the laws have changed over time. Much depends on when you were born and what law was in effect during your childhood. Previous laws allowed derivation only through naturalization of both parents, or one parent with custody in cases of death or divorce. Current requirements. Effective February 27, 2001.

Under the Child Citizenship Act of 2000, a child automatically becomes a citizen when all of the following conditions are met:

  • at least one parent is a citizen, either by birth or by naturalization;
  • the child is under age 18;
  • the child is not married;
  • the child is a lawful permanent resident; and
  • the child is living in the United States in the legal and physical custody of the citizen parent.

note: The law is not retroactive, so a person who was 18 or older on 2/27/01 would not be able to benefit from the Child Citizenship Act.

note: An adopted child who meets the conditions listed above can derive citizenship under the Child Citizenship Act if there is a full, final, and complete adoption and the child meets certain additional requirements for adopted children under immigration law. Stepchildren can not derive citizenship.

example: Ahmed, age 12, lives outside the United States with his mother. His parents are divorced and have joint legal custody of Ahmed. Ahmed’s father lives in the United States and recently became a U.S. citizen. He filed an I-130 petition to bring Ahmed to the United States. When Ahmed enters the United States at the age of 13, joins his father, and receives lawful permanent resident status, he will become a U.S. citizen by derivation.

Documenting Derivation of Citizenship

You can prove derivation of citizenship using one of two documents:

  • a United States passport
  • a Certificate of Citizenship

It is easier, faster, and cheaper to apply for a United States passport than a Certificate of Citizenship. To get these documents, you will need to prove that you meet the legal requirements that were in effect before you reached age 18.

How Does a Child Show Lawful Permanent Residence?

A child who has lawful permanent residence (LPR status) will have a permanent resident card (green card). Another way to show LPR status is the I-551 stamp in the child’s passport. This stamp shows the child has entered the United States on an immigrant visa and/or has been admitted as a lawful permanent resident.

Must the Child Get a Certificate of Citizenship?

You do not have to apply for a certificate of citizenship for your child.

How Does the Child Get a Passport Under the Child Citizenship Act?

You will need the following when the child applies for a passport:

  • Proof of the child’s relationship to the American citizen parent. For the biological child of the American citizen this will be a certified copy of the foreign birth certificate (and translation if not in English). For an adopted child, it is a certified copy of the final adoption decree (and translation if not in English);
  • The child’s foreign passport showing the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (USCIS) I-551 stamp in the passport, or the child’s permanent resident card (green card);
  • Proof of identity of the American citizen parent(s)
  • Passport application, passport photographs and fees. Go to Passport Services for forms and full instructions.

Can My Child Get a Birth Certificate (Consular Report of Birth Abroad or CROBA) from the Embassy or Consulate?

No. Only a child who acquired citizenship at birth can get a birth certificate from an embassy or consulate.

Proving the Citizenship status of your Parent

Evidence: naturalization certificate; birth certificate; U.S. passport.

Proving your Relationship with your Parent

  • Evidence: birth certificate; baptismal certificate; medical records; religious records; school records; blood tests.
  • proving your parent had legal and physical custody of you
  • Evidence: marriage certificate; divorce decree; death certificate; separation and custody documents.
  • proving Your lawful permanent resident status
  • Evidence: Alien registration card, ie green card; entry documents.

note: There is no deadline when applying for documentation of derivative citizenship. Derivation happens automatically and requires only verification of the evidence.

example: Maria is 30 years old, but she has lived in the United States as a lawful permanent resident since the age of 5. When Maria was 10, both of her parents became U.S. citizens, and she automatically derived citizenship from them. She has been a citizen since the age of 10, but she never applied for proof of her citizenship status until now.

example: Igor, age 9, is a lawful permanent resident who lives with his parents in the United States. Igor’s father recently became a U.S. citizen, but his mother is still a non-citizen. Igor derived citizenship from his father. Igor’s father will apply for a passport or Certificate of Citizenship on Igor’s behalf, as proof of citizenship.

Certificate of Citizenship

A Certificate of Citizenship is given to people who became citizens through acquisition or derivation. Also, it is given to children when they naturalize. You can get a Certificate of Citizenship by filing Form N-600 with the necessary evidence.

Procedures-only for those who acquired or derived citizenship.

The applicant files Form N-600, Application for Certificate of Citizenship to the appropriate USCIS Field Office with the following: check or money order for the application fee; three identical, passport-style photos (2×2 inches); evidence of meeting the legal requirements for acquisition or derivation (see page 271 for a list of documents showing evidence of acquisition and page 274 for a list of documents showing evidence of derivation); translations of any documents not in English.

exception: For children who have immigrated to the United States, parents are not required to submit documents that are already in the USCIS file, including translations of documents. Applicants can state that they wish to rely on these previously submitted documents and give the name and A-number for the file containing the documents.

note: Adopted children applying for evidence of derivative citizenship use the same form (N-600). However, the fee is lower. The applicant must include a copy of the full, final adoption decree and, if the adoption took place outside the U.S., evidence that it is recognized by the state where the child resides.

note: If the applicant is age 18 or older, he or she must sign the application. For younger applicants, the citizen parent or legal guardian must sign it.

An interview is usually not required, but may be required to verify the evidence. If the applicant is under age 18 the citizen parent must attend the interview to provide testimony on the applicant’s behalf.

If USCIS denies the application, the applicant receives a written notice by mail of the reason for the denial. The decision may be appealed to the USCIS Field Office within 30 days using Form I-290B. Check the USCIS website, http://www.uscis.gov, for the current fee.

If approved, the applicant will take the oath of allegiance at the interview. The oath will be waived if applicant is too young or too disabled to understand it, or if no interview is required.

The applicant signs the Certificate of Citizenship, if he or she is able. If not, the parent signs it on the applicant’s behalf. The Certificate of Citizenship is given at the interview or sent by certified mail within the United States only.

Naturalization of Children

When a child does not qualify for automatic citizenship by acquisition or derivation, a citizen parent may apply to naturalize the child. The parent applies for naturalization on the child’s behalf using Form N-600K. The child does not become a citizen until USCIS approves the application. This procedure is for children living outside the United States with their citizen parent(s).

Current requirements; (effective February 27, 2001)

Under the Child Citizenship Act of 2000, a citizen parent may apply for naturalization on a child’s behalf if the following requirements are met:

  • at least one parent is a citizen, either by birth or by naturalization;
  • the citizen parent must have lived in the United States for a total of five years, at least two of which were after age 14; OR the United States citizen parent of the citizen parent (child’s grandparent) must have lived in the United States for a total of five years, two of which were after age 14;
  • the child is under age 18, and remains under age 18 until the naturalization process is completed;
  • the child is not married;
  • the child is residing outside of the United States in the legal and physical custody of the citizen parent; and
  • the child is temporarily present in the United States under a lawful admission, and remains in lawful status until the naturalization process is completed.

note: Adopted children can be naturalized under the Child Citizenship Act. They use the same form (N-600K), but the fee is lower. They need to submit evidence of a full and final adoption.

note: If the U.S. citizen parent is deceased, the U.S. citizen grandparent or legal guardian can file this application within five years of the parent’s death.

example: Erika, age 5, is an orphan who lives overseas with two U.S. citizen adoptive parents. She has never lived in the United States and is not a lawful permanent resident. Therefore, she does not qualify for derivative citizenship. Erika’s parents will apply to naturalize her using Form N-600K, then apply for Erika’s lawful entry into the United States to attend the USCIS interview.

Naturalization Procedures for Children

The United States citizen parent files the following with the preferred USCIS Field Office:

  • Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322;
  • Check or money order for the application fee;
  • Three identical passport-style photos (2×2); and
  • Evidence of meeting the legal requirements for the child’s naturalization (see N-600K instructions for a list of documents).

note: The citizen parent must sign the application on the child’s behalf.

2. Send a cover letter with the application giving the following information:

  • Write the preferred interview dates when the child, who lives abroad, is available.
  • If the child is almost 18 years old and close to “aging out,” request expedited or quick processing in the cover letter so the child can take the oath before his or her 18th birthday. Use red ink or bold lettering so USCIS will see it. For example, “AGe Out – 03/15/11.”
  • Mail the package.

USCIS reviews the application.

If the child appears to be eligible, USCIS will issue a notice that the application has been preliminarily approved. The notice will give an interview appointment date. The parent can present the appointment letter at the United States embassy in the country of residence to request a nonimmigrant visa if required for entry into the United States.

If anything is incomplete or missing from the application, USCIS will return the application with instructions on how to correct the problem.

If it appears that the child is not eligible for the certificate, USCIS will issue a Notice of Intent to Deny the Application, giving a specific number of days for the applicant to reply and correct the problem. If an application is denied, the decision can be appealed within 30 days using Form I-290B.

An interview is required for the U.S. citizen parent and the child. At the interview the USCIS officer verifies the information on the N-600. Documentation of the child’s lawful status in the United States must be provided at the interview. Once the information is verified, the USCIS officer will approve the application.

The child is required to take the oath of allegiance at the interview before receiving a Certificate of Citizenship. However, the oath may be waived if the child is unable to understand its meaning due to age or disability. The child becomes a citizen on the date of the oath. The child signs the certificate, if he or she is able. If not, the parent signs it on the child’s behalf.

Posted in Acquisition Of Citizenship, Certificate of Citizenship, Child Citizenship Act, Child Citizenship Act of 2000, Child is born in the United States or its territories, Citizenship for Children, Derivation Of Citizenship, Naturalization of Children, Naturalization Procedures for Children | Leave a comment

Automatic Acquisition of Citizenship after Birth (INA 320)

Posted on October 7, 2013 by Mike Baker

Automatic Acquisition of Citizenship after Birth (INA 320)

See INA 320. See Nationality Chart 3

INA: ACT 320 – Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired 1/

Sec. 320. [8 U.S.C. 1431] (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1) .

FOOTNOTES FOR SECTION 320 INA: ACT 320 FN 1FN1 Secton 101(a) of Public Law 106-395, dated October 30, 2000, revised section 320 in its entirety.

A. General Requirements: Biological, Legitimated, or Adopted Child Automatically Acquiring Citizenship after Birth[1]

A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001:[2]

  • The child has at least one parent, including an adoptive parent[3] who is a U.S. citizen by birth or through naturalization;
  • The child is under 18 years of age;
  • The child is an LPR; and
  • The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.[4]

A stepchild who has not been adopted does not qualify for citizenship under this provision.

B. Legal and Physical Custody of U.S. Citizen Parent

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:[5]

  • 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;[6]
  • 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.

C. Acquisition of Citizenship Prior to Child Citizenship Act of 2000

The CCA applies only to those children born on or after February 27, 2001, or those who were under 18 years of age as of that date. Persons who were 18 years of age or older on February 27, 2001, do not qualify for citizenship under INA 320. For such persons, the law in effect at the time the last condition was met before reaching 18 years of age is the relevant law to determine whether they acquired citizenship.[7]

In general, former INA 321 applies to children who were already 18 years of age on February 27, 2001, but who were under 18 years of age in 1952, when the current Immigration and Nationality Act became effective.

In general, a child born outside of the United States to two foreign national parents, or one foreign national parent and one U.S. citizen parent who subsequently lost U.S. citizenship, acquires citizenship under former INA 321 if:

The child’s parent(s) meet one of the following conditions:

  • Both parents naturalize;
  • One surviving parent naturalizes if the other parent is deceased;
  • One parent naturalizes who has legal custody of the child if there is a legal separation of the parents; or
  • The child’s mother naturalizes if the child was born out of wedlock and paternity has not been established by legitimation
  • The child is under 18 years of age when his or her parent(s) naturalize; and
  • The child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.

As originally enacted in 1952, this section did not apply to adopted children of naturalized citizens.[8] Beginning on October 5, 1978, however, INA 321 became generally applicable to an adopted child if the child was residing in the United States at the time the adoptive parent or parents naturalized and the child was in the custody of his or her adoptive parents pursuant to a lawful admission for permanent residence.[9]

D. Application for Certificate of Citizenship (Form N-600)

A person who automatically obtains citizenship is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship.

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s U.S. citizen biological parent, adoptive parent, or legal guardian must submit the application.[10]

USCIS will issue proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so.[11]

E. Documentation and Evidence

The applicant must submit the following required documents unless such documents are already contained in USCIS administrative record or do not apply:[12]

The child’s birth certificate or record.

Marriage certificate of child’s parents, if applicable.

Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed, for example:

Divorce Decree, or

Death Certificate.

Evidence of United States citizenship of parent:

Birth Certificate,

Naturalization Certificate,

FS-240, Consular Report of Birth Abroad,

A valid unexpired United States Passport, or

Certificate of Citizenship.

Documents verifying legitimation according to the laws of the child’s residence or domicile or father’s residence or domicile if the child was born out of wedlock.

Documentation of legal custody in the case of divorce, legal separation, or adoption.

Copy of Permanent Resident Card or Alien Registration Receipt Card or other evidence of lawful permanent resident status, such as an I-551 stamp in a valid foreign passport or travel document issued by USCIS.

Copy of the full, final adoption decree, if applicable:

For an adopted child (not orphans or Hague Convention adoptees), evidence that the adoption took place before the age of 16 (or 18, as appropriate) and that the adoptive parent(s) had custody of, and lived with, the child for at least two years.[13]

For an adopted orphan, a copy of notice of approval of the orphan petition and supporting documentation for such petition (except the home study) or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IR-3 (Orphan adopted abroad by a U.S. citizen) or IR-4 (Orphan to be adopted by a U.S. citizen).[14]

For a Hague Convention adoptee, a copy of the notice of approval of Convention adoptee petition and its supporting documentation, or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IH-3 (Hague Convention Orphan adopted abroad by a U.S. citizen) or IH-4 (Hague Convention Orphan to be adopted by a U.S. citizen).[15]

If the child was admitted as an LPR as an orphan or Hague Convention adoption[16] (this evidence may already be in the child’s A-file).

Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.

An applicant does not need to submit documents that were submitted in connection with:

An immigrant visa application retained by the American Consulate for inclusion in the immigrant visa package; or

An immigrant petition or application and included in a USCIS administrative file.

If necessary, an officer may continue the application to request additional documentation to make a decision on the application.

F. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age.[17] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records or if the required documentation is submitted along with the application.[18]

G. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

If an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.[19]

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[20] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.

Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.

2. Denial of Application

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.[21] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes

1. See INA 320. See Nationality Chart 3.

2. February 27, 2001 is the effective date for these CCA amendments.

3. If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

4. See INA 320. See 8 CFR 320.2.

5. See 8 CFR 320.1.

6. If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

7. See Chapter 3, United States Citizens at Birth (INA 301 and 309).

8. See INA of 1952, Sec. 321(b), 66 Stat. at 245.

9. See Sec. 5 of the Act of October 5, 1978, Pub. L. 95-417. The 1978 amendment limited this benefit to a child adopted while under 16 years of age. This restriction was removed in 1981 by the Act of December 21, 1981 (Pub. L. 97-116) but is also included in the definition of “child” in INA 101(c).

10. See 8 CFR 320.3(a).

11. See Section G, Decision and Oath of Allegiance. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

12. See 8 CFR 320.3(b).

13. See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child.

14. If admitted as an IR-4 because there was no adoption abroad, the parent(s) must have completed the adoption in the United States. If admitted as an IR-4 because the parent(s) obtained the foreign adoption without having seen the child, the parent(s) must establish that they have either “readopted” the child or obtained recognition of the foreign adoption in the State of residence (this requirement can be waived if there is a statute or precedent decision that clearly shows that the foreign adoption is recognized in the State of residence). See 8 CFR 320.1.

15. If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

16. See INA 101(b)(1).

17. See 8 CFR 320.4.

18. See 8 CFR 341.2. See Section E, Documentation and Evidence.

19. See 8 CFR 320.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

20. See INA 337(a). See 8 CFR 341.5(b).

21. See 8 CFR 320.5(b) and 8 CFR 103.3(a).

Resources

Legal Authorities
INA 101(c) – Definition of child for citizenship and naturalization
INA 320, 8 CFR 320 – Children residing permanently in the United States

Posted in Automatic Acquisition of Citizenship after Birth (INA 320), Certificate of Citizenship, Citizenship and Naturalization policies and procedures, Citizenship for Children, United States Citizens at Birth | Leave a comment