K1/K2 Visa Approved + US Citizenship Through Birth

[abcassell 0]

Hello All,

I am a US citizen by birth. My fiancee and I had our child out of wedlock 3 years ago abroad in the Caribbean. We never filed for CRBA.

Fast forward to today...my spouse (as we're recently married) and our son came to the USA on K1/K2 visas respectively. I am going to file for her AOS immediately.

My question is instead of applying for a green card for our son, can't I just apply for a US passport for him? By providing his birth certificate and our marriage certificate - as he attains US citizenship through me...? Any light on this matter would be GREATLY appreciated.

Thank You.

[jan22 2,898]

Are you sure you met the requirements to transmit citizenship? Knowing you were a US citizen, the consular section should have evaluated the possibility your son was a US citizen before they issued him a K2 visa. The issued visa is prima facia evidence the he is not, in fact, a US citizen, so you would have to prove otherwise before applying for a US passport for him. Might prove difficult.

However -- the good news is that, once you adjust his status from the K2 to legal permanent residence, as the biological son of a US citizen who has been admitted into the US as a permanent resident, he meets all of the requirements for acquiring US citizenship under the Child Citizenship Act and you can apply directly for a US passport at that time.

[Pinkrlion 2,607]

Why didnt you file CRBA before you left.

[abcassell 0]

Not filing the CRBA was a mistake/blessing on my part to some degree as I needed my wife and son to arrive to the US before a certain date, in order to ensure that I could add them to my work health plan before the enrollment period was over.

As much as the mistake served us well by providing faster entry to the states as the CRBA would of been another lengthy process - I'm somewhat financially disappointed that I'll potentially have to pay for two AOS - when I acquired us citizenship at birth.

I did meet the requirements and I think our k1/k2 case went under the radar because my wife applied for a Jamaican passport for our son prior to me filing for them.

What proof could I provide to prove otherwise that he is a us citizen before applying for his passport? Or is simply applying for his AOS the best route to take?

Thanks again in advance!

[newacct 688]

It's a little complicated because your child was born out of wedlock and you are the father. To transmit US citizenship to a child born abroad out of wedlock to a US citizen father, the conditions is that, not only do you have to have been physically present in the US before the child's birth for a total of 5 years, including 2 years after you turned 14, but also, the following conditions must be met before the child is 18:

• The child's paternity is acknowledged by you or determined by a competent court, and
• You make a written promise under oath to support the child until the child is 18

Usually, when you do a CRBA, the conditions above are satisfied, as they will make you (the US citizen father) sign a document under oath that satisfies those conditions at the same time. But if you try to claim the child's citizenship without getting a CRBA, then you will have to satisfy the conditions in some other way first.

[jan22 2,898]

The CRBA would have noramlly been a week or two process -- certainly not worth having created this complication. Also, the consulate would have know that you were a US citizen even though the child had a Jamaican passport, since you have to be a US citizen to file the K-1 petition. They should have asked about it. Are you listed on your son's birth certificate?

Edited May 19, 2016 by jan22

[TBoneTX 43,048]

A hijack post has been split from this thread, moved to the Caribbean regional forum, and given the topic title "(Jamaica) What's Next after Completing DS-160? [split topic]." In addition, similar hijack posts have been removed from other threads.

VJ Moderation

[abcassell 0]

Yes, I am listed on my son's birth certificate.

[Ontarkie 13,915]

~~Moved to Passports, etc. - What to do now that you are a US citizen, from K1 P&P - as the OP's family is now in the US, CRBA was not done and the next step is how to prove and USC to obtain a US passport. ~~

[jan22 2,898]

Once you marry and your then-wife and son adjust status, he will become a US citizen -- it will just not be a recognition that he was a US citizen from birth, which will prohibit him from eve becoming US president. If you're okay with that, the easiest thing is to wait and file for a passport after he becomes a Legal Permanent Resident.