Hey guys,

I'm making this post on behalf of a guatemalan friend who is also a VJ member and asked me to post this in english. (She posted it in spanish but did not get many responses on the regional forum).

Here are the facts of her case:
1. She nd her fiance have a 5 month old baby. The baby has a guatemalan birth certificate in which my friends fiance acknowledges that the baby is his son.
2. Her fiance is applying for the U.S. Citizenship and will have his interview next week.
3. After he becomes a U.S. Citizen, they will start the K-1 process to bring her to the States.

Her questions are:

• Will the baby be a U.S. Citizen automatically once the father becomes a U.S. Citizen? Can they register the baby's birth at the U.S. Consulate so the baby can have an american passport?
• Or will they have to go through what is called Application for Citizenship and Issuance of Certificate Under Section 322?(Stipulated on the Child Citizenship Act).
  

From what I've read these are their 2 options:

1. Registering an American Citizen’s Birth in Guatemala, in the case the baby is considered a U.S. citizen. (She has been adviced to do this, on the other forum.. but I've told her that this may not apply to her case).

2. Applying for citizenship for your child by filing form N-600K (Application for Citizenship and Issuance of Certificate Under Section 322) : in the case the Child does not qualify for automatic citizenship under the CCA (Child Citizenship Act). NOTE: Only children that are LPR qualify for automatic citizenship and have at least one parent who is USC.

Read this info. too: U.S. Citizenship by birth of through parents - Naturalization of parents: Derived Citizenship

My opinion is, that they can NOT register the baby's birth at the CO (acquire citizenship automatically), because the baby was born before the father became a U.S. Citizen. I think that the right option, is option number 2. The application for citizenship and issuance of certificate under section 322, is for biological or legitimated children who live permanently abroad and have at least one parent who is a U.S. Citizen.

My friend needs to get as much feed back as possible as they are not sure, which way they should go.

Has any of you gone through this before? or Has some experience on this matter, she'd appreciate your input a lot!

Thank you for taking the time to read this and for your help

The only way the child will become a U.S. citizen is by first becoming an LPR, but as soon as he enters the U.S. the child automatically becomes a U.S. citizen. In order for the child to have derived citizenship from his naturilized parent, the child needed to be present in the U.S. and in legal and physical custody of that parent who naturalized, also the child must have had a green card at the time and it must happen before the childs 18th birthday. This is one of the few cases where you wont be required to fill out an I-864 Affidavit of support because the child will be a citizen as soon as he enters the U.S.

Thank you for your response! I read on the USCIS web site that according to the CCA children who live permanently abroad can become U.S. Citizens as well, but I supouse that in that case they still have to be in physical custody of the parent who is the U.S. Citizen. Is that right?

Do they intend to bring the child to the US?

If they do, perhaps the easiest thing is to bring the child to the US on a K-2 accompanying the mother's K-1, then adjust status. When the child becomes an LPR living in the US with the US Citizen parent, the child will automatically and immediately become a citizen.

There may be other ways to do it.

You're correct that the child was not a US Citizen at birth, because the father was not yet a US citizen at that time. So the consular report of birth abroad won't work.

lucyrich, thank you for your response.

Yes, they want to bring the baby to the U.S. I think that K-2 would be the best option. But I was not sure if the baby was eligible to be a K-2 holder given that he is the child of the petitioner, I was under the impression that K-2 holders have to be child of the K-1 holder but are not family related to the petitioner.


What do you guys think? A K-2 beneficiary can be the child of the U.S. Citizen?

Yes, a K-2 beneficiary can be the child of the US Citizen petitioner.

That's not a common situation, because most children of US citizens are already US citizens at birth. It's far more common to have a K-2 beneficiary be a (future) stepchild of the petitioner. But the law doesn't have any such restriction.

This USCIS policy memo sort of indirectly addresses that issue, by explictly saying that a K-2 beneficiary doesn't have to demonstrate a step-parent/step-child relationship with the petitioner. But I suspect the memo is really more concerned with the case where the K-2 beneficiary is neither the child nor the stepchild of the petitioner.

At any rate, the only thing the law says is that the K-2 beneficiary must be the minor child of the K-1 beneficiary. The law doesn't address any relationship that may or may not exist between the K-2 beneficiary and the petitioner.

Thank you for explaining that
K-2 is definitely the best option for them. I agree with you this is a not so common case. But it does sound very logical that children of U.S. Citizens who are not U.S. citizens themselves can apply for K-2. I was confused because I thought (but could never found the exact right info.) that only step children could benefit from K-2. But now I have cleared my doubts.

Thanks again! I'll make sure to pass all this useful info. to my friend.