Usc claim by an adopted stepchild who entered as conditional resident may 14 2011

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The citizenship claim of an adopted stepchild who entered as a CR-2.

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Usc claim by an adopted stepchild who entered as conditional resident may 14 2011

  1. 1. USC Claim by an adopted stepchild who entered as conditional resident.The I-130 as an IR-2 was not an option because the child was adopted while under the ageof 16 years but the USC parent did not live with the child for two full years yet. Therelationship did not meet the statutory definitions at that time. Therefore, the childimmigrated as stepchild (CR-2) accompanying his mother (CR-1) in conditional status. Hegot a conditional green card.Date of marriage = date the step-relationship began.This is likely the crucial date to begin counting as “legal custody” if you began (or alreadywere) residing together as a family unit. Other scenarios are possible... The child couldhave been living with the other parent and only came to reside with the “adoptive parent”upon immigrating. These are the likely polar opposite scenarios.Through the passage of time, the child met the legal requirements applicable to an adoptedchild under Title III of the INA in § 101(c) and automatically acquired US Citizenshipunder INA § 320 prior to the need to file an I-751. His time as a conditional resident countsfor Title III purposes as stated in INA § 216(e).His present status should be United States Citizen as of the date that the two-years of jointresidence while in legal custody was fulfilled. Address this question with your evidence.However, the burden of proof is on an applicant for him to obtain proof of citizenship. Thistype of case is simply too complex to skip the N-600 and try for a passport. The PassportAgency would likely reject the case and make you go through the N-600 process first.File the N-600 and explain the situation and support the application with the requiredevidence of having fulfilled the required two years of legal custody and residence togetherin a parent-child relationship under INA § 101(b)(1)(E) as cross-referenced in INA §101(c). As this is a complex case, it is incumbent upon you to explain it or else it will beextremely delayed processing, possibly denied and force an expensive and time consumingappeal.This case would be a good one for USCIS to certify to the AAO under 8 CFR 103.4(a)(5) asqualified under (a)(1) as a case that involves an unusually complex or novel issue of law orfact.8 CFR § 204.2 Petitions for relatives, widows and widowers, and abused spouses andchildren.(d) Petition for a child or son or daughter —(1) Eligibility. A United States citizen may file apetition on behalf of an unmarried child under twenty-one years of age for immediate relativeclassification under section 201(b) of the Act. A United States citizen may file a petition onbehalf of an unmarried son or daughter over twenty-one years of age under section 203(a)(1) orfor a married son or daughter for preference classification under section 203(a)(3) of the Act. AnAdopted Stepchild Entered As CR-2 But Automatically Acquired USC Before Need For I-751 Page 1
  2. 2. alien lawfully admitted for permanent residence may file a petition on behalf of a child or anunmarried son or daughter for preference classification under section 203(a)(2) of the Act.*****(2) Evidence to support petition for child or son or daughter. In addition to evidence of UnitedStates citizenship or lawful permanent resident, the petitioner must also provide evidence of theclaimed relationship.*****(vii) Primary evidence for an adopted child or son or daughter. A petition may be submitted onbehalf of an adopted child or son or daughter by a United States citizen or lawful permanentresident if the adoption took place before the beneficiarys sixteenth birthday, and if the child hasbeen in the legal custody of the adopting parent or parents and has resided with the adoptingparent or parents for at least two years. A copy of the adoption decree, issued by the civilauthorities, must accompany the petition.(A) Legal custody means the assumption of responsibility for a minor by an adult under the lawsof the state and under the order or approval of a court of law or other appropriate governmententity. This provision requires that a legal process involving the courts or other recognizedgovernment entity take place. If the adopting parent was granted legal custody by the court orrecognized governmental entity prior to the adoption, that period may be counted towardfulfillment of the two-year legal custody requirement. However, if custody was not grantedprior to the adoption, the adoption decree shall be deemed to mark the commencement of legalcustody. An informal custodial or guardianship document, such as a sworn affidavit signedbefore a notary public, is insufficient for this purpose.(B) Evidence must also be submitted to show that the beneficiary resided with the petitioner forat least two years. Generally, such documentation must establish that the petitioner and thebeneficiary resided together in a familial relationship. Evidence of parental control may include,but is not limited to, evidence that the adoptive parent owns or maintains the property where thechild resides and provides financial support and day-to-day supervision. The evidence mustclearly indicate the physical living arrangements of the adopted child, the adoptive parent(s),and the natural parent(s) for the period of time during which the adoptive parent claims to havemet the residence requirement. When the adopted child continued to reside in the samehousehold as a natural parent(s) during the period in which the adoptive parent petitioner seeksto establish his or her compliance with this requirement, the petitioner has the burden ofestablishing that he or she exercised primary parental control during that period of residence.(C) Legal custody and residence occurring prior to or after the adoption will satisfy bothrequirements. Legal custody, like residence, is accounted for in the aggregate. Therefore, abreak in legal custody or residence will not affect the time already fulfilled. To meet thedefinition of child contained in sections 101(b)(1)(E) and 101(b)(2) of the Act, the childmust have been under 16 years of age when the adoption is finalized.(D) On or after the Convention effective date, as defined in 8 CFR part 204.301, a United Statescitizen who is habitually resident in the United States, as determined under 8 CFR 204.303, maynot file a Form I–130 under this section on behalf of child who was habitually resident in aAdopted Stepchild Entered As CR-2 But Automatically Acquired USC Before Need For I-751 Page 2
  3. 3. Convention country, as determined under 8 CFR 204.303, unless the adoption was completedbefore the Convention effective date. In the case of any adoption occurring on or after theConvention effective date, a Form I–130 may be filed and approved only if the United Statescitizen petitioner was not habitually resident in the United States at the time of the adoption.(E) For purposes of paragraph (d)(2)(vii)(D) of this section, USCIS will deem a United Statescitizen, 8 CFR 204.303 notwithstanding, to have been habitually resident outside the UnitedStates, if the citizen satisfies the 2-year joint residence and custody requirements by residingwith the child outside the United States.*****The CR-2 was the only viable option at the time for the stepchild who was adopted BUT didnot yet qualify as an “adopted” child for I-130 purposes. In that he was only considered astepchild who was dependent on his mother who was a conditional resident, he was also aconditional resident. However, he has skipped over the I-751 removal of conditionsrequirement by an action of law that takes precedence over it. He now falls under INA §320 and “automatic acquisition” of citizenship as a qualifying lawfully adopted child whomeets the statutory definition at INA 101(b)(1)(E).*****INA § 216 [8 U.S.C. § 1186a] - CONDITIONAL PERMANENT RESIDENT STATUSFOR CERTAIN ALIEN SPOUSES AND SONS AND DAUGHTERS(a) In general.-(1) Conditional basis for status.-Notwithstanding any other provision of this Act, an alien spouse(as defined in subsection (g)(1)) and an alien son or daughter (as defined in subsection (g)(2))shall be considered, at the time of obtaining the status of an alien lawfully admitted forpermanent residence, to have obtained such status on a conditional basis subject to theprovisions of this section.*****(e) Treatment of Period for Purposes of Naturalization.-For purposes of title III, in the case ofan alien who is in the United States as a lawful permanent resident on a conditional basis underthis section, the alien shall be considered to have been admitted as an alien lawfully admitted forpermanent residence and to be in the United States as an alien lawfully admitted to the UnitedStates for permanent residence.*****INA § 101(c) As used in title III-(1) The term "child" means an unmarried person under twenty-one years of age and includes achild legitimated under the law of the childs residence or domicile, or under the law of theAdopted Stepchild Entered As CR-2 But Automatically Acquired USC Before Need For I-751 Page 3
  4. 4. fathers residence or domicile, whether in the United States or elsewhere, and, except asotherwise provided in sections 320, and 321 of title III, a child adopted in the United States,if such legitimation or adoption takes place before the child reaches the age of 16 years(except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) ofsubsection (b)(1)), and the child is in the legal custody of the legitimating or adopting parentor parents at the time of such legitimation or adoption.*****8 CFR § 216.4 Joint petition to remove conditional basis of lawful permanent residentstatus for alien spouse.(a) Filing the petition —*****(2) Dependent children. Dependent children of a conditional permanent resident who acquiredconditional permanent resident status concurrently with the parent may be included in the jointpetition filed by the parent and the parents petitioning spouse. A child shall be deemed to haveacquired conditional residence status concurrently with the parent if the childs residence wasacquired on the same date or within 90 days thereafter. Children who cannot be included in ajoint petition filed by the parent and parents petitioning spouse due to the childs not havingacquired conditional resident status concurrently with the parent, the death of the parent, or otherreasons may file a separate Petition to Remove the Conditions on Residence (Form I–751).*****8 CFR § 320.2 Who is eligible for citizenship?(a) General. To be eligible for citizenship under section 320 of the Act, a person must establishthat the following conditions have been met after February 26, 2001:(1) The child has at least one United States citizen parent (by birth or naturalization);(2) The child is under 18 years of age; and(3) The child is residing in the United States in the legal and physical custody of the UnitedStates citizen parent, pursuant to a lawful admission for permanent residence.(b) Additional requirements if child is adopted. If adopted, the child must meet all of therequirements in paragraph (a) of this section as well as satisfy the requirements applicableto adopted children under section 101(b)(1) of the Act.*****INA § 101(b)(1)(E) (i) a child adopted while under the age of sixteen years if the child has been in the legalcustody of, and has resided with, the adopting parent or parents for at least two years or ifthe child has been battered or subject to extreme cruelty by the adopting parent or by aAdopted Stepchild Entered As CR-2 But Automatically Acquired USC Before Need For I-751 Page 4
  5. 5. family member of the adopting parent residing in the same household : Provided, That nonatural parent of any such adopted child shall thereafter, by virtue of such parentage, beaccorded any right, privilege, or status under this Act; or(ii) subject to the same proviso as in clause (i), a child who: (I) is a natural sibling of a childdescribed in clause (i) or subparagraph (F)(i); (II) was adopted by the adoptive parent or parentsof the sibling described in such clause or subparagraph; and (III) is otherwise described in clause(i), except that the child was adopted while under the age of 18 years;*****INA § [8 U.S.C. § 1431](a) A child born outside of the United States automatically becomes a citizen of the United Stateswhen 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 ornaturalization.(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 citizenparent pursuant to a lawful admission for permanent residence.(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if thechild satisfies the requirements applicable to adopted children under section 101(b)(1) .*****8 CFR § 320.3 How, where, and what forms and other documents should be filed?(a) Application. Individuals who are applying for certificate of citizenship on their own behalfshould file a Form N–600, Application for Certificate of Citizenship. An application for acertificate of citizenship under this section on behalf of a minor biological child shall besubmitted on Form N–600, Application for Certificate of Citizenship, by the U.S. citizenparent(s) or legal guardian. An application for a certificate of citizenship under this section onbehalf of a minor adopted child shall be submitted on Form N–643, Application for Certificate ofCitizenship in Behalf of An Adopted Child by U.S. citizen adoptive parent(s) or legal guardian.The application must be filed with the filing fee required in §103.7(b)(1) of this chapter.(b) Evidence. (1) An applicant under this section shall establish eligibility under §320.2. Inaddition to the forms and the appropriate fee as required in §103.7(b)(1) of this chapter, anapplicant must submit the following required documents unless such documents are alreadycontained in the Service administrative file(s):(i) The childs birth certificate or record;Adopted Stepchild Entered As CR-2 But Automatically Acquired USC Before Need For I-751 Page 5
  6. 6. (ii) Marriage certificate of childs parents (if applicable);(iii) If the childs parents were married before their marriage to each other, proof of terminationof any previous marriage of each parent (e.g., death certificate or divorce decree);(iv) Evidence of U.S. citizenship of parent, ( i.e. , birth certificate; naturalization certificate; FS–240, Report of Birth Abroad; a valid unexpired U.S. passport; or certificate of citizenship);(v) If the child was born out of wedlock, documents verifying legitimation according to the lawsof the childs residence or domicile or fathers residence or domicile (if applicable);(vi) In case of divorce, legal separation, or adoption, documentation of legal custody;(vii) Copy of Permanent Resident Card/Alien Registration Receipt Card or other evidence oflawful permanent resident status (e.g. I–551 stamp in a valid foreign passport or Service-issuedtravel document);(viii) If adopted, a copy of the full, final adoption decree and, if the adoption was outside ofthe United States and the child immigrated as an IR–4 (orphans coming to the UnitedStates to be adopted by U.S. citizen parent(s)), evidence that the foreign adoption isrecognized by the state where the child is permanently residing; and(ix) Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.(2) If the Service requires any additional documentation to make a decision on the application forcertificate of citizenship, applicants may be asked to provide that documentation under separatecover or at the time of interview. Applicants do not need to submit documents that weresubmitted in connection with: An application for immigrant visa and retained by the AmericanConsulate for inclusion in the immigrant visa package, or an immigrant petition or applicationand included in a Service administrative file. Applicants should indicate that they wish to rely onsuch documents and identify the administrative file(s) by name and alien number. The Servicewill only request the required documentation again if necessary.Adopted Stepchild Entered As CR-2 But Automatically Acquired USC Before Need For I-751 Page 6

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