This information was provided by Ethica with the help of Michael Wilson and C.J. Lyford, Esq. (www.lyfordlaw.com) who assisted in the development of this Guide.
Adult adopted persons have faced grave immigration consequences when it was discovered that U.S. citizenship was never obtained on their behalf. Some adult adopted persons have been deported or have encountered considerable difficulty in naturalizing after reaching adulthood. Some estimate that the number of adult adopted persons without U.S. citizenship could number in the thousands. Most adopted persons in this category are completely unaware that they are not U.S. citizens.
The purpose of this Guide is to highlight awareness of the need for adopted persons to confirm U.S. citizenship status. The information contained in this Guide is not meant to provide legal advice, but to provide information about how to confirm U.S. citizenship status, how to acquire U.S. citizenship and how to obtain proof of U.S. citizenship.
Importance of Confirming Your Citizenship Status
If you were under 18 on or after February 27, 2001 and your adoption by a U.S. citizen parent was finalized before your 18th birthday, you may have acquired U.S. citizenship automatically, under the Child Citizenship Act (CCA). But if you are a foreign born adoptee who turned 18 before February 27, 2001, it is possible that you have not acquired U.S. citizenship even if your adoption by a U.S. citizen parent was finalized. If you are a foreign born adoptee who was under age 18 on or after February 27, 2001, it is possible that you have not acquired U.S. citizenship if your adoption was never finalized by a U.S. citizen parent.
In all cases, it is extremely important that you confirm and obtain proof of your citizenship status before engaging in activities that only U.S. citizens are permitted to do, such as voting in Federal (and some State and local) elections, performing jury duty, or claiming citizenship at any U.S. border or port of entry. Establishing your citizenship may also be important if you are charged with any criminal activity or are questioned by any U.S. Immigration and Customs Enforcement officials or other government entity.
You Face a Significant Risk of Removal (Deportation) If You Are Not a Citizen
All non-citizens of the United States (even Lawful Permanent Residents) face the risk of deportation if they commit certain criminal or fraudulent offenses. Adopted persons who are not U.S. citizens, even if they legally entered the country as infants or children, are not immune from most of these immigration penalties.
Aside from the possibility that an offense can lead to deportation, certain conduct can lead to the denial of an application for naturalization to gain U.S. citizenship based on lack of ―good moral character. In addition to these risks, a non-citizen who leaves the United States faces the risk of not being allowed to return. Please take careful steps to determine and protect your immigration/citizenship status before travelling abroad.
Some of the most common situations that may lead to deportation are described below:
Criminal Offenses: The conviction or admission of an ―aggravated felony‖ or a ―crime involving moral turpitude‖ may be subject to deportation. The term ―a crime involving moral turpitude‖ is not clearly defined under the law. Similarly, the definition of what constitutes an aggravated felony or even a conviction can be difficult to determine under the INA. If you have ever been arrested or charged with any criminal conduct, it is extremely important that you consult with an immigration attorney or an accredited representative to evaluate your situation.
Other Offenses: Any non-citizen who has falsely represented himself or herself to be a citizen of the United States for any purpose not only under the immigration laws but also under any other Federal or State may be subject to deportation. This includes representing oneself as a citizen when attempting to enter the United States at any border or port of entry or even when applying for any public benefits. Additionally, any non-citizen who votes in an election in violation of Federal, State, or local constitutional laws may be subject to deportation.
Although exceptions may be available to adoptees in these two circumstances, it is extremely important that you do not unlawfully claim to be a U.S. citizen under any circumstances, and that you refrain from voting in elections (especially Federal elections) unless you are certain that you are a citizen or permitted to vote in a local or State election.
If you have ever falsely claimed citizenship or voted in an election, whether or not you did so with the knowledge that you are not a citizen, it is very important that you consult with an immigration attorney or an accredited representative.
Confirming Your Citizenship Status
In some cases, the easiest way to verify your citizenship status is to check with your adoptive parents to determine if they have a Certificate of Citizenship (COC), a Certificate of Naturalization (CON) for you, or determine if they completed the naturalization process for you. If they have (or have had) one of these documents in their possession or have taken you through the naturalization process, then you are a citizen. When contacting your adoptive parents, it is strongly recommended that you obtain all information and documents that they may have available concerning your adoption and immigration status.
If you are uncertain about the citizenship status of your adoptive parents, or are otherwise unable to determine your own citizenship or immigration status, you may be able to determine your parent’s or you own status by filing a request for information under the Freedom of Information Act (FOIA). A convenient form (Freedom of Information Act/Privacy Act Request, G-369) is available from the USCIS to assist you in this request. To best determine your (or your parent’s) status, check the ―all of my records‖ box under item number 3 on the form. For more information concerning a FOIA request, please visit http://www.uscis.gov/foia or call the NCSC at 1-800-375-5283.
You may be concerned about contacting USCIS to confirm your U.S. citizenship status in the event that you learn that you are not a U.S. citizen. Unless you have any reason to believe that your adoption was not completed in a proper or legal manner, that you were never given lawful permanent resident status, or that you have engaged in criminal activity, the risk of USCIS taking any legal action against you on the basis of you initiating contact with them should be low. On the other hand, if any of these circumstances do apply or if you have concerns about negative repercussions, you should consult an immigration attorney or accredited representative. For example, even if the adoption was not legal, if a non-citizen is residing in the United States and is a victim of trafficking or other abuses, he or she may be eligible to apply for legal permanent resident status after obtaining a US visa.
Obtaining Proof of Your Citizenship Status
If you have determined that you are a U.S. citizen, it is important that you obtain proof of your citizenship. If you were previously issued a COC or CON which has become lost, mutilated or destroyed, you may file a form N-565, Application for Replacement Naturalization/Citizenship Document, with the U.S. Citizenship and Immigration Services (USCIS). The filing fee for this form currently is $380 (the fee is scheduled to decrease to $345 effective November 23, 2010). USCIS forms are available at http://www.uscis.gov or by calling the USCIS Forms Line (1-800-870-3676).
If you are eligible for a Certificate of Citizenship (your adoption was finalized by a U.S. citizen before your 18thbirthday and on or after February 27, 2001), it is very important that you obtain a Certificate of Citizenship as proof of citizenship. You can obtain a Certificate of Citizenship by filing a form N-600, Application for Certificate of Citizenship, with the USCIS (the instructions to this form provide an excellent checklist for verifying eligibility to obtain the COC). The filing fee to be accompanied with the form currently is $420 for a person adopted by U.S. citizen parents (the fee is scheduled to increase to $600 effective November 23, 2010).
Although U.S. passports are evidence of U.S. citizenship for some purposes, it is important to note that they are issued by the Department of State. Unless a Certificate of Citizenship or Certificate of Naturalization is issued, the USCIS has no record that an adopted person’s status has been adjusted. Moreover, U.S. passports must be renewed periodically.
Applying for Naturalization
If you have determined that you are not a U.S. citizen, you will need to apply for naturalization in order to gain citizenship if you wish to become a U.S. citizen. It is highly recommended that you apply for naturalization as soon as possible in order to avoid any consequences that could potentially lead to deportation or a potential denial of your application for naturalization. However, see the section ―You Face a Significant Risk of Removal (Deportation) If You are Not a Citizen.‖ Although legislation has been proposed to retroactively bestow U.S. citizenship on adult adoptees that turned 18 before the passage of the CCA, no legislation has yet been passed. This means that currently the only available route to citizenship is through naturalization.
If you were adopted by U.S. citizen parents your current immigration status will likely be that of a lawful permanent resident (LPR). However, this might not always be the case, for example, if you arrived in the United States on a medical visa or on humanitarian parole and your status was never adjusted. You will need to verify this status and take additional steps before proceeding with naturalization. If you have a Permanent Resident Card (PRC), also known as a Residency Card or Green Card, then you have LPR status. If you do not have a Permanent Resident Card, you should determine if your adoptive parents have one for you or if they have ever had one.
If this card is expired, or has become lost, stolen or mutilated, you will need to apply for a replacement card before proceeding with your application for naturalization. This can be done by using the I-90, Application to Replace Permanent Resident Card, available on the USCIS website. The filing fee for this form is currently is $290 plus an $80 biometrics fee ($370 total) (the fees are scheduled to increase to $365 and $85 effective November 23, 2010).
Although your PRC may have expired, your LPR status does not expire. However, if you travel and remain outside of the United States for more than six months, you could be at risk of abandoning your LPR status. Once again, please take careful steps to ascertain your immigration status before travelling abroad.
The general requirements for naturalization can be reviewed at the USCIS website. Generally, if you have been continuously present in the United States in LPR status for at least five years, you may be eligible to apply for naturalization. The continuous presence requirement may be less than five years if you are married to a U.S. citizen or have served in the U.S. military. Please consult with an immigration professional in either of these cases.
The Application for Naturalization, or form N-400, is available on the USCIS website or through the USCIS Forms Line (1-800-870-3676). The filing fee to be accompanied with the form currently is $595 plus the $80 biometrics fee ($675 total)(the biometrics fee is scheduled to increase to $85 effective November 23, 2010). You can generally expect to wait a few to several months before being scheduled to attend an interview at your local USCIS office regarding your application. Following the interview, a USCIS officer will make a decision on your application.
Attorneys and Accredited Representatives Who May Be Able to Assist You
Two resources for finding an attorney or accredited representative who may be able to assist you with the issues discussed in this Guide are:
List of Organizations That May Be Able to Assist You
To receive a list of organizations that commonly assist low income immigrants in various immigration matters please see the full version of this article on Ethica.net If you are unable to find or afford an attorney, these organizations may be able to assist you in the process of ascertaining and obtaining proof of your immigration/citizenship status or in applying for naturalization, or they may be able to refer you to another organization or attorney that can assist you. The organizations listed are provided for informational purposes only. Ethica does not endorse, recommend, make representations, warranty or guarantee the accuracy or reliability of the information, advice or services provided by any organization listed.
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