Son in US on immigrant visa, US passport denied, apply for 322 instead?

[immi378 0]

Hello to all,

I am a born German citizen with naturalized US citizenship since 2013, having lived in the US for 15 years, now living in Germany for the past 2 years.

We just entered the US on 08/01 and are still in the US right now for another week.

My son, 7, was born in Germany when I was not a US citizen yet. He now entered with me and my other 1 year old son (born in German, US citizen, US passport) on an immigrant visa and received the I 551 stamp valid until 6/2016. We were planning on moving back to the US but things might have changed now. The father of both kids lives in the US and will remain living here. Both kids were born out of Wedlock and their father is only a green card holder.

When applying for a US passport for my 7 year old, they denied it based on not enough evidence that he was residing here with me in the US although we provided a school registration for him and doctors documents. They said we would need to show proof that he lived here for at least 6 months to a year, then he will be issued his US passport.

My son will soon receive his green card in the mail here at my home in the US. We will go back to Germany in one week though. I know my son can reenter with his green card or stamp with no problem but since we have decided to maybe stay in Germany we cannot prove his US presence anymore.

We have to get his US passport also since his Dad is living in the US and we have a court family plan agreement for me to live in the US for 6 months and 6 months in Germany and the kids want to see their Dad regularly. If he only kept his green card, we would have to travel here every 6 months and then my son would have to live in the US for 5 years to be eligible again for the citizenship.

Should I come to live here with the kids next year so I can get his US passport showing 6-12 months presence or could I stay living in Germany with them and apply for a N 600 under the 322 child citzenship act provision? Do I qualify for that if I lived in Germany from 2007-2009 and 2013-2015 to accumulate the 5 year residence requirement or do the 5 years count back from the date of application?

I do have a lot of questions and am considering consulting an attorney now while still in the US.

What do You advise please?

Thank You very much for Your replies.

[Boiler 43,628]

Sounds like your Family Law agreement was drawn up without consideration to the immigration issues.

I can see several issues and agree that you needed a lawyer versed in both aspects.

[immi378 0]

Thank You for Your fast response, Boiler. Is there anything else that You could tell me with regards to my situation?

[newacct 688]

I haven't heard of "They said we would need to show proof that he lived here for at least 6 months to a year, then he will be issued his US passport." Who told you this? Can you try to apply at a different location?

This issue is whether your son is already a US citizen or not. If you believe he is already a US citizen (due to residing in the US with you), then he should get a US passport and/or a Certificate of Citizenship with N-600. The INA 322 process (applied for with N-600K), is only for people who are not already US citizens, so you would only do it if you believe your son was not already a US citizen. Plus the INA 322 process requires that the child reside abroad, which is contradicted by his green card.