ILW.COM - the immigration portal Immigration Daily

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Adopted Children and the Child Citizenship Act of 2000
by Everett P. Anderson and Dan H. Berger

On October 30, 2000, President Clinton signed H.R. 2883, the "Child Citizenship Act of 2000" (CCA). Effective February 27, 2001, the CCA

  • Repeals INA 321;
  • Amends and re-titles INA 320 and 322;
  • Ends expeditious naturalization of foreign-born children adopted inside this country;
  • Confers automatic citizenship on orphans and other children under age 18 who are born to or adopted by qualifying U.S. citizens abroad (new INA 320);
  • Protects children of USC's permanently in the U.S. before age 16 from IIIRA's false-citizenship-claim penalties;
  • Opens expeditious naturalization to non-LPR children residing abroad who are lawfully admitted into the U.S. (new INA 322).
This advisory explains these changes as they affect foreign children adopted both domestically (Part I) and abroad (Part II).

I. Foreign Children Adopted in the U.S.

One-Step Citizenship Under 322 To End; Advocacy

Far fewer foreign children are adopted inside the U.S. than abroad. For this minority, a 1994 amendment to INA 322 permitted one-step naturalization by changing the former requirement for an immigrant admission to a simple lawful admission. See current INA 322(a)(3). This window of opportunity will close with the CCA's February 27 effective date. If your client meets the profile in the following paragraph, press your local INS office to schedule a final N-643 interview before that critical deadline.

For a few weeks, one-step expeditious naturalization will remain available for children who (1) entered the U.S. lawfully, typically in nonimmigrant visitor or student status; (2) were legally adopted before age 16 by a qualifying USC; (3) have lived in the physical and legal custody of that USC for two years, thereby qualifying as a "child" under INA 101(b)(1)(E); (4) have well-documented N-643 applications pending before local INS offices; and (5) can be naturalized before their 18th birthdays or February 27, 2001, whichever is earlier. See current INA 322 and CCA Section 104. These lucky children will bypass LPR status altogether.

On February 27, 2001, the CCA ends this benefit. It does so by confining new INA 322 to foreign-born children, including adopted children, who (1) reside outside the U.S. in the legal and physical custody of the citizen parent; (2) are temporarily present in the U.S. pursuant to a lawful admission; and (3) are maintaining such lawful status. See new INA 322(a)(4),(b) and CCA Section 102.

INS Resistance

Despite this imminent statutory deadline, expect resistance from your local INS office. Among other problems, there are no governing INS regulations; the instructions on the N-643 forms still state that LPR status is necessary to naturalize; and many INS offices routinely reject N643s filed on behalf of children who entered as nonimmigrants. To help them understand this legal error, consult Practice Advisory, "Expeditious Naturalization in Adoption," Immigration Law Today (February, 2000).

Yet another basis for Service resistance is its huge backlog of N-600s and N-643s, which are considered low priority. In Boston, for example, N-643s are currently taking about two years to adjudicate - this despite a stated 60-day processing goal in INS Cable, December 22, 1995, V-3-A. The INS could reduce this glut by reviewing pending cases. Many, especially orphans adopted abroad, will no longer require N-643s after the CCA, while others (such as children adopted in the U.S. who have aged out) are no longer eligible for expeditious naturalization.

Why Congress Closed the One-Step Naturalization Loophole

While the legislative history of the CCA is sparse, the demise of one-step naturalization for nonimmigrant children adopted in the U.S. appears purposeful. Congress may rightly have seen these children as bypassing both the I-600 orphan adoption system and the family-based immigrant preference categories - a strategy facilitated by the general Service policy of waiving misrepresentation on entry for immediate relatives and by the legal inapplicability of overstays for children under age 18. See INA 212(a)(9)(B)(iii)(I). Apart from delays and resistance at local INS offices, nothing prevented these children from securing one-step expeditious naturalization despite an immigrant intent at entry. The CCA soon closes this loophole.

Counseling Families of U.S. Adoptees After the CCA

Of course, foreign parents bent on settling their children permanently in the U.S. will continue to do so after the CCA. For these and other foreign-born children adopted in the U.S., the careful practitioner will counsel the adoptive USC parents regarding: (1) the desirability of maintaining valid NIV status even though unlawful presence does not accrue against minors under age 18; (2) the one-year limit on public secondary school attendance and the payback requirement for that year; (3) the consequent desirability of stable private-school enrollment; (4) the need for early adjustment to secure SSN's, EAD's, higher-education scholarships, and in-state tuition benefits; and (5) the bars at ages 16, 18 and 21 for adoption, automatic citizenship and immediate-relative-based adjustment, respectively.

Adjustment Before Age 18 Results In Automatic Citizenship Under New INA 320; Pitfalls

After February 27, 2001, the CCA will require children adopted in the U.S. who entered on NIV's to undergo adjustment of status as a precondition for citizenship. This also applies to children adopted and residing abroad who entered the U.S. in NIV status that has lapsed. The good news is that, once these children secure LPR status, they thereby become citizens automatically under new INA 320, with no requirements respecting either foreign residency or time spent in LPR status -- but subject to the same age 18 adjustment deadline. See especially new INA 320(a)(3) and INA 101(a)(20).

Miss that age 18 adjustment deadline, and the child will qualify for neither automatic nor expeditious citizenship. Instead, he or she will have to undergo lengthy N-400 naturalization under INA 316. Miss the age 21 immediate-relative adjustment deadline, and the child will have to undergo both first-preference adjustment (with a 212(a)(9)(B) waiver of any NIV overstay after age 18) and N-400 naturalization.

II. Orphans and Children Adopted Abroad: Beneficial Changes In the New Act

Orphans Adopted Abroad and Now in the U.S.: Automatic Citizenship Procedures

The largest group who will benefit from new INA 320 is the 10,000-plus families per year who adopt orphans abroad. Their children enter as LPRs after extensive paperwork and delays in their state's home study, the foreign country's legal adoption, and the U.S. consulate's I-600 processing. After their new children are admitted to the U.S., most families re-adopt them in state court. Under the CCA, these children will become citizens automatically without filing N-643 forms.

Although the precise procedures must await INS rulemaking, it appears that, after February 27, 2001, these adopted orphans can document their automatic citizenship status by filing an N-600 for a Certificate of Citizenship with the INS or applying for a U.S. passport. The latter is certainly faster and easier, although there may be some delay in the State Department notifying passport agents of this change. Submit the text of the CCA to your local passport agency pending issuance of INS regulations.

Orphans: Protection From Penalties For False Citizenship Claims

The CCA also helps those orphans adopted previously who may have mistakenly thought they were USCs. They are now protected from the penalties for falsely claiming U.S. citizenship. Making such a false claim is one of the few nonwaivable grounds of inadmissibility, precludes a finding of good moral character for naturalization purposes, and is a felony if the alien votes in a federal election without being a citizen. Section 201 of the CCA amends INA 101(f) (good moral character), 212(a)(1)(D) (inadmissibility), 237(a)(6) (grounds of deportability), and 18 U.S.C. 611 (unlawful voting in federal election) to exempt adopted orphans if they had a "reasonable belief" that they were citizens at the time of the false claim. Most of these new provisions take effect retroactively

Children Living Abroad and Lawfully Admitted Into the U.S.: Expeditious Naturalization Procedures

The second large group of families who fare well under the CCA is those USCs still living abroad (primarily military personnel) who adopt a child. Under new 322, those families can file an N-643 from abroad at the INS office near their U.S. home of record, await an interview date, and then obtain a B-2 visa for the child to attend the citizenship interview in the U.S. While 322 has been dramatically limited, those families are still eligible for the N-643 path without first obtaining LPR status for their children.

* Note that most of the children who received automatic citizenship under 321, which is repealed by the new Act, are still covered by the new 320. The most common group is children born abroad of alien parents, where the parents subsequently naturalize.

III. Conclusion

The Child Citizenship Act of 2000 confers automatic citizenship on qualifying orphans adopted abroad. It opens expeditious naturalization to children of USC's still residing abroad, closes it for children adopted domestically, but replaces it with automatic citizenship for those adjusting status before age 18. It remains for the Service to implement these worthy goals in rulemaking.

About The Authors

Everett P. Anderson and Dan H. Berger are AILA members practicing respectively in Tallahassee, Florida and Northampton, Massachusetts