Should Your U.S. Citizen Child Get “Certified”? Or, Why Spend the Money for a Certificate of Citizenship?

As many people know, a child who is in the U.S. as a Lawful Permanent Resident (“LPR,” or colloquially “Green Card”), can automatically become a U.S. Citizen, without any further application or action, under the Child Citizenship Act (codified at Sections 320 and 322 of the Immigration and Nationality Act (“INA”)). For a child to become a U.S. Citizen automatically (“by operation of law”) all of the following factors must be present as of the date of the last qualifying event:

1. The child is under age 18.

2. The child is an LPR (“Green Card” holder).

3. The child has at least one parent, including an adoptive parent (BUT NOT a stepparent) who is a U.S. Citizen, either by birth or by naturalization.

4. The child is residing in the United States in the “legal and physical custody” of the U.S. citizen parent.

So, in the most common case, where an LPR parent naturalizes, his or her child who at the time of the parent’s naturalization is under 18, has a Green Card and is living with and in the “legal” custody of the naturalizing parent, automatically becomes a citizen when that parent naturalizes.

In a slightly less common but still frequently encountered scenario, a child who gets a Green Card and is living with a parent who is already a Citizen becomes a citizen at the same time as he or she gets the Green Card.

What’s the problem? It turns out that the U.S. Immigration and Immigration Services (“USCIS”) doesn’t make any special entry or notation in its database when this occurs. So, as far as the USCIS’s records are concerned, this Naturalization “by operation of law” never happened.

That doesn’t mean the child isn’t a citizen. He or she can (and should) apply for a U.S. passport with documentation supporting this “automatic” Naturalization. In fact, many attorneys (wrongly in my opinion) tell clients just to apply for a passport for the child, and not even to bother with the hassle of filing for a Certificate of Citizenship, which costs hundreds of dollars in filing fees alone.

In most cases, a passport IS sufficient proof of citizenship. Under 22 U.S. Code section 2705, a passport, “during its period of validity (if such period is the maximum period authorized by law)” has the same force and effect for proof of citizenship as a Naturalization Certificate (or a Citizenship Certificate). So, no problem, right?

Well, not necessarily. The passport is not issued by the USCIS, which is an agency of the Department of Homeland Security (“DHS”). It’s issued by the Passport Office, which is an agency of an entirely different department, the Department of State. It may surprise you to know that the two departments’ software doesn’t “speak” to each other, so what one agency “knows” may not be known to the other. Passport information in the Passport Office’s database may (in fact, almost certainly will) never get to the USCIS.

And passports are transitory. Passports can expire. An expired passport is not official proof of citizenship.

A passport issued for less than the “maximum period authorized by law” also is not, in theory, proof of citizenship. Who gets passports issued for less than the allowable maximum period? Children. Children 16 years and older may get “limited validity” passports for less than 10 years; children under 16 may get “limited validity” passports for less than 5 years.

Also, just because a passport has been issued once, doesn’t mean it will be renewed. Just, for example, felons and people who owe child support payments may have passport applications denied.

By contrast, a Certificate of Citizenship does not expire. Once issued, it does not have to be reissued or renewed. It cannot later be revoked if a person falls behind on child support or commits a serious crime.

Of equal importance, the Certificate of Citizenship, issued by USCIS, IS entered into the DHS’s database, so that agents of the various DHS agencies (not just the USCIS, but Immigration and Customs Enforcement (“ICE”), Customs and Border Protection (“CBP”), and the Border Patrol) have easy access to the information when trying to determine if someone is a citizen.

Why does this matter? Tragically, every year hundreds if not thousands of U.S. Citizens are deported, even though they are citizens because government agents who take them into custody for a myriad of reasons don’t do the research – or don’t do enough research – to find out that they are citizens, and classify them as “undocumented.” Uncounted thousands of others are detained, in facilities that nobody would ever confuse with the Ritz Carlton, for periods ranging from a day to several months, while government agents determine whether or not they are citizens. Frequently, their families have to retain lawyers to help them, at a cost many times greater than the cost of a Certificate of Citizenship. Having a Certificate of Citizenship makes proving a person's citizenship to these government officials easier and faster.

You might also be surprised to learn that many government employees at other agencies don’t necessarily know that an unexpired passport is proof of citizenship, and insist on a Certificate of Citizenship. Having one will avoid the hassle of proving them wrong.

The Certificate of Citizenship, while not cost-free, is a lifetime investment and “insurance policy,” in my opinion, well worth the expense.