If you are a U.S. citizen and your child was born outside the U.S., your child may acquire U.S. citizenship at birth. However, simply being born to a U.S. citizen parent is not enough for the child to get the U.S. citizenship and further requirements will have to be satisfied. The analysis will depend on whether the child was born in or out of wedlock and whether the U.S. citizen is the father or mother of the child.
Child was born in a wedlock to a U.S. citizen and a foreign national
In this case, your child may obtain U.S. citizenship if the U.S. citizen parent (the father or the mother of the child) was physically present in the U.S. for at least 5 years, from which at least 2 years were after the age of 14.
What is physical presence? How can I prove it?
Physical presence is the actual time you spent in the U.S. You can satisfy the physical presence requirement by providing for example academic records that show that you were studying in the U.S., employment records that show that you physically worked in the U.S., W-2 forms, rental receipts or lease agreements.
Child was born out of wedlock to a U.S. citizen and a foreign national
a) U.S. citizen father and foreign national mother
If you are a U.S. citizen father and your child is born to you and the foreign national mother abroad, you will have to show that the following requirements are met in order for your child to acquire the U.S. citizenship at birth:
- You will have to prove by a clear and convincing evidence that there is a blood relationship between you and the child;
- You will have to agree in writing to provide financial support for the child until the child reaches 18 years of age; and
- One of the following criteria must be met before the child reaches 18 years of age:
•The child is legitimated under the law of his or her residence or domicile;
•You acknowledge in writing and under oath the paternity of the child; or
•The paternity of the child is established by adjudication of a competent court.
- You must have been physically present in the U.S. for at least 5 years, from which at least 2 years were after the age of 14
b) U.S. citizen mother and foreign national father
If you are a U.S. citizen mother of a child that was born abroad and your child was born after June 12, 2017, you must have been physically present in the U.S. for at least 5 years prior to child’s birth (of which at least 2 years were after the age of 14) for your child to acquire the U.S. citizenship.
What should I do after the child is born?
After your child is born, you should contact the nearest U.S. Consulate or Embassy and apply for a Consular Report of Birth Abroad (“CRBA”) to document that your child is a U.S. citizen. You should do this as soon as possible after the child’s birth.
If you meet the above mentioned requirements and the Consulate determines that your child is a U.S. citizen, a Consular Officer will approve your CBRA application and the Department of State will then issue CRBA that will serve as a proof that your child is a U.S. citizen. You should check the website of the appropriate Consulate to find out what other documents you will have to bring for the CRBA application (e.g. child’s birth certificate).
It is important to keep in mind that CRBA does not serve as a travel document and you should also apply for child’ U.S. passport. You should be able to apply for the CRBA and the passport at the same time, but you should check the website of the appropriate Consulate to find out what is the procedure.
Please note that your child may have a dual citizenship and be both a U.S. citizen and a citizen of the country where it was born. You should research the laws of the country where the child was born for more details.
Please see our blog post blog post that discusses different ways how a foreign national can get a green card through marrying a U.S. citizen.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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