Saturday, June 9, 2012

My Son’s Citizenship


I have spent the last four months spending all of my free time on my son. Since I went back to work two months ago, I have had my hands full with work and my family-related chores. Inspite of all the things that have kept me busy, at the back of my mind I am mentally checking-off all the requirements needed for my son’s Certificate of Recognition of Birth Abroad (CRBA). The only thing missing now is a copy of my husband’s Divorce Decree in the U.S. (to his U.S. Citizen spouse). I am just deciding now whether to request for it on-line among the many websites who does that for a fee, or ask someone over there (a friend or relative of his) to secure it for us and send it. But certainly, while I have not fully thought of the advantages of being a U.S. Citizen (for my son), I also think of some of the advantages of retaining his Filipino citizenship. As most of you very well know, I have never acquired U.S. Citizenship. Consequently, because I have retained my Filipino citizenship, my child acquires my citizenship jus sanguinis (by blood).

The following are things that I do want to ask as a lawyer: What exactly are the legal effects of a Certificate Recognition of Birth Abroad? Does that automatically vest on the child U.S. Citizenship? Does the same apply to all children (even the adopted ones) of the U.S. citizen? How about those children who are not legitimated (U.S. citizen and Filipino/Filipina are not married)? How about children that are not recognized by the U.S. citizen parent?

I will endeavor to answer some of these questions in the months to come (whenever I am free). But let us start with my circumstance. My particular circumstance is 1) we (U.S. citizen and Filipina) are legally married in the Philippines (He has no prior marriage here to a Filipina and I have never been married to anyone before, here or abroad); 2) He was divorced to his former spouse (U.S. Citizen) before we were legally married in the Philippines (consequently this means that our son is legitimate); and 3) Our son is born to us naturally (he was not adopted).

Based on the web site of the U.S. Embassy in Manila:

A Consular Report of Birth Abroad (CRBA) is an official record of U.S. citizenship issued to a person under age 18 who was born abroad to United States citizen parent(s) and acquired citizenship at birth. Schools, the Social Security Agency, and other institutions throughout the United States accept it and give it the same credence they give to birth certificates issued by state authorities in the United States.

Based on the above, it is clear that my child is considered a U.S. citizen BY BIRTH, if he is able to prove the following (again taken from the U.S. Embassy website):

  • Transmission - This is the ability of a U.S. citizen parent to transmit citizenship to their child.  The U.S. citizen parent(s) must have been a U.S. citizen at the time of the child's birth and must have accrued sufficient physical presence in the U.S. to transmit citizenship.  The transmission requirements depend on the date of birth of the child and the legal relationship between the parents at the time of the birth of the child.  For a child born to a U.S. citizen father and a non-U.S. citizen mother (whether married to each other or not) on or after November 14, 1986, the child may be entitled to citizenship provided the U.S. citizen parent, before the birth of the child, had been physically present in the United States or one of its outlying possessions for five (5) years, at least two years of which were after the U.S. citizen parent reached the age of fourteen. 
  • Legitimation - The child/applicant must meet the legal requirements pertaining to legitimation.  A child born to a female U.S. citizen (and a non-U.S. citizen father) is automatically legitimated.  Proof of legitimation is required for a child born to a male U.S. citizen.  Persons born to an in-wedlock U.S. citizen father and non-U.S. citizen mother are legitimated by virtue of the marriage.  Persons born to an out-of-wedlock U.S. citizen father and non-U.S. citizen mother, and not legitimated by the natural parents' subsequent marriage can be legitimated under the Immigration and Nationality Act by one of two methods. 
  • Filiation - A biological and legal relationship with the child/applicant and the claimed U.S. citizen parent must be established. The burden of proving a claim to U.S. citizenship, including blood relationship, is on the person making such claim.  When no substantive form of credible evidence is available in conjunction with a CRBA or Passport application, a parent may find genetic testing to be a useful tool for confirming a stated biological relationship.  Note: Do not initiate a DNA test unless it was recommended by the Embassy for your pending CRBA or Passport application.  A DNA Test that was done independently and not according to Department of State procedures will not be accepted to support a CRBA or Passport application.

  
For us, all of these requirements are easily met. My husband has lived in the U.S. since birth until he left the U.S. to come live with me in 2010. We are married consequently our child is legitimate by reason of our marriage. Filiation can be proven by the fact that we resided together a YEAR before he was conceived as proven by our approved application for temporary /permanent residence visa in the Philippines.

Let me back track on some of my questions:

Does the CRBA automatically vest on the child U.S. Citizenship? YES

Does the same apply to all children (even the adopted ones) of the U.S. citizen? NO . They may be able to apply Derivative Citizenship

How about those children who are not legitimated (U.S. citizen and Filipino/Filipina are not married)? They may acquire citizenship under certain conditions.

How about children that are not recognized by the U.S. citizen parent? I think this is difficult because it is the U.S. Citizen who will be the applicant. Consequently, a U.S. Citizen who does not even recognize the child will have difficulty in applying for a CRBA.















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