IR-2 Passport due to Child Citizenship Act of 2000

[acidrain 325]

I wanted to share our experience in case anyone was interested. My spouse was born an American citizen but never spent the 2 years over the age of 14 in order for my son to qualify for Consular Report of Birth Abroad (CRBA).

 

We went through the IR-2 process without any hassle. In fact in contrast to my own IR-1 application it was a breeze. We were given a letter by the Montreal Consulate to apply for a US passport to prove citizenship.

 

I made an appointment with the local post office as they process passport applications. The woman was not familiar with IR-2's and warned me I may be required to send more information. I sent my son's original birth certificate along with notarized copies of what was required. This included my spouse's birth certificate, spouse's US passport, my Canadian birth certificate, my US green card and son's IR-2 entry stamp.

 

I got a letter back from the Department of State asking for certified copies or originals including our marriage certificate. I sent more certified copies as my Canadian passport was lost for over a week after the Montreal consulate sent it back. I waited over 2 months for a response. I continued to get the same letter and then wrote a letter back asking what the status was. You only have a certain amount of time to get a US passport application completed.

 

A nice fellow from the Department of State called to clarify what happened. He said he wanted ALL documentation to be original. That means I have to send my son's Canadian passport with the IR-2 stamp and original marriage certificate. I had a certified copy from LA county for my spouse's birth certificate. However, the official said this would not be good enough (despite this being good enough for the green card process). So I had to order another official copy of my spouse's birth certificate. He told me they are apprehensive of any type of identity fraud and want to know for an absolute fact the birth certificate is legit.

 

I asked whether my son IS a US citizen upon the IR-2 stamp. The US Department of State official said this was a common misconception. My son is NOT a US citizen with a IR-2 stamp, he is only a Permanent Resident. He stated only someone from the Department of State or if we had applied for a Certificate of Citizenship, those who process those can make that determination. There is a process in which they review information and make sure the person is eligible. I wanted to clarify this as it is repeated on VJ that a child under the citizenship Act of 2000 is a citizen once they enter on a IR-2. Apparently that is totally false. You have to finalize the process by either applying for a passport or certificate of citizenship.

 

I have to wait for this certified birth certificate to come and courier all originals back to the Department of State. He gave us a 90 day extension to sort all of it out. Upon inspection of the documents it is then determined whether my son becomes a US citizen. The official said once the process is complete you don't have to go through the process again.

Edited July 27, 2018 by acidrain

[Hypnos 6,576]

The Child Citizenship Act is quite clear. USCIS (for a CoC) or DoS (for a US passport) can put whatever rules they want in place before they will issue the appropriate evidence of US citizenship, but federal law is very clear on a minor child automatically becoming a US citizen once the provisions are met. 

[acidrain 325]

I'm looking at the letter that the Montreal consulate gave me and interesting choice of words when it reads:

 

This law effective on February 27, 2001, facilitates the acquisition of United States citizenship for the foreign-born children of United States citizen parents when those children do not acquire United States citizenship at birth.

 

Although US citizenship is conferred automatically with respect to those who qualify, you nonetheless may want to obtain documentary proof of your child's status as a US citizen. This will make his or her acquisition of US citizenship a matter of record.

 

If I take it at face value it sounds like you become a US citizen but cannot prove it until you apply for a passport or certificate of citizenship. In other words the IR-2 stamp is rendered useless because it does not actually prove your a citizen even though you are supposed to be. Go figure.

[TM92 527]

16 minutes ago, acidrain said:

In other words the IR-2 stamp is rendered useless because it does not actually prove your a citizen even though you are supposed to be.

Entry with IR-2 visa in and of itself can never be evidence of citizenship. For example if the child enters at age 18+ or if the child never becomes under the legal AND physical custody of the citizen after entering the US; https://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH-Chapter4.html:

Quote

A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001:

• The child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or through naturalization;
• The child is under 18 years of age;
• The child is a lawful permanent resident (LPR); and
• The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.

It seems in the case of your son he immediately became a citizen upon POE as a green card holder based on the legal and physical custody of the citizen parent, according to U.S. law. After POE your son was just missing evidence of his citizenship. He was immediately eligible to apply for evidence of his citizenship (either a Certificate of Citizenship or a U.S. passport).

[HiFi21 5]

How long did it take you to get your son's passport? And did you have to provide any proof he was residing with your husband in the US?

[TM92 527]

2 hours ago, HiFi21 said:

And did you have to provide any proof he was residing with your husband in the US?

https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Child-Citizenship-2000-Sections-320-322-INA.html and select the heading "How does the child get a passport..."

Quote

If the child has not been issued a Certificate of Citizenship by USCIS, the passport application must include the following proof of acquisition of citizenship under the INA Section 320:

1. Proof of the child's relationship to the U.S. citizen parent. For the biological child of the U.S. citizen this will usually be a certified copy of the foreign birth certificate (and translation if not in English). In circumstances where it is not clear that the birth certificate is adequate proof of a biological relationship between the child and the U.S. citizen parent, other types of evidence, including medical and/or DNA tests, may be requested. For an adopted child, it is a certified copy of the final adoption decree (and translation if not in English);
2. Proof that the child is residing or has resided in the United States in the legal and physical custody of the U.S. citizen parent(s) pursuant to a lawful admission for permanent residence. The I-551 stamp endorsed in the child's foreign passport or the child's permanent resident or “green” card will establish lawful admission for permanent residence, but not the fact that the child is residing in or has resided in the United States as required by INA 320(a)(3). Separate evidence establishing that the child has resided in the United States in the legal and physical custody of the U.S. citizen parent(s) may be requested;
3. Proof that the child is or was under the age of 18 when all conditions are met.

As per bullet point #2, it is one of the requirements for the first US passport if the child does not have a CoC issued by USCIS.

Edited September 28, 2018 by TM92

[acidrain 325]

On 9/27/2018 at 8:36 PM, HiFi21 said:

How long did it take you to get your son's passport? And did you have to provide any proof he was residing with your husband in the US?

Sorry for such a delayed response. I am not on here as often as I was before.

 

It took more than 4 months to sort everything out. There was a person assigned to my case from the Department of State. At least I was able to call him directly unlike my experience with USCIS.

 

There was a question as to whether my husband had custody of my son while we were living in Canada. He said something to the effect my son had to be in the citizens physical custody for the last 2 years. I explained what happened when we were detained by customs and told to complete the immigration process abroad. It became a bit of a grey issue because by legal terms we were separated even though we weren't broken up. I told him it was illegal to cross the border with the intent to immigrate therefore I had to stay in Canada to wait for my green card. In any case the agent said he'd go back to his supervisor and ask what to do. My son's passport was approved and sent out the same day and we got it about 2 days after that.