Anna, a widow of a U.S. citizen, e-mailed me about his deceased spouse’s child and requested my assistance. She writes, “My husband has a child from his prior marriage. This child was secretly kept from my husband. I was told that the child was born after my husband was already separated and divorced from the mother. Thereafter, the child was abandoned and left to the care of a grandmother. My husband died when the child was eight years old. The grandmother has since written to me about the child and his history and asked for my help on the child’s behalf. I did. I supported this child’s education until he got his high school diploma. I want to know if this child is an automatic U.S. citizen since his father was a U.S. citizen. If he is not eligible to derive a U.S. citizenship, can I petition this child instead?”
Derivative Citizenship
While most children of U.S. citizens are successful in obtaining citizenship, there are those who do not meet the specific requirements of the law. Hence, not all children of U.S. citizens may derive automatic citizenship.
A child born outside the United States where one or both parents are U.S. citizens may acquire U.S. citizenship at birth as long as certain eligibility requirements are met. One of the important factors to prove is the residence of the U.S. citizen parent prior to the birth of the child. For those who were born after November 14, 1986, the U.S. citizen parent citizen must prove that he has been physically present in the United States for a total of at least five years.
Assuming that the father resided in the United States for five years before the birth of the child, Anna may claim that the child is automatically a U.S. citizen.
Stepmother Petition
If prior to the birth of the child, the deceased father did not have five years of physical residence in the United States, the child will not be considered a U.S. citizen at birth. Generally, in these cases, the U.S. citizen parent must file a petition for the child. As soon as the child enters the United States as a lawful permanent resident, the latter may apply for citizenship pursuant to the Child Citizenship Act. Under this law a child is a citizen by birth if (1) one parent is a citizen by birth or naturalization; (2) the child is under 18; (3) the child is a green card holder; and the child is residing in the US in the legal and physical custody of the citizen parent.
In the case of Anna, since the U.S. citizen parent is deceased, Anna as the stepmother may file a petition for immigrant visa on behalf of her stepchild. There is no requirement that the stepmother show an active parental interest in the child. What is important to prove is that the stepmother-stepchild relationship was established when the child was below eighteen years old. The required “relationship” here is simply the legal tie that connects the stepmother and the stepchild, i.e. establishing the fact that the stepparent and the biological parent entered into a valid marriage before the child turned 18 years old.
For the stepmother petition to be approved, supporting documentation regarding the marriage between the biological parent and the stepmother must be submitted. This marriage certificate and other proof of marriage must indicate that the marriage was a viable marriage entered into in good faith. If the stepchild’s biological parents were married, proof of annulment or divorce must support the petition to be filed. This divorce decree is a crucial element here since the creation of the stepparent-stepchild relationship depends on the validity of a subsequent marriage between the petitioner and the deceased/biological parent of the stepchild.
Interestingly, the petition may be filed even after the stepchild turns 21 years old. It may also be filed despite the divorce or death of the natural parent. In the case of Anna, the biological parent died resulting in termination of the marriage of the stepmother and the biological parent. Anna could nevertheless file the stepchild petition because the relationship of stepparent and stepchild was deemed to have been established at the time of Anna’s marriage to her stepchild’s biological father. Hence, despite the subsequent dissolution of the marriage through death of the biological parent, Anna may still effectively file the petition of the child.
Stepchild’s Future
I was not sure if it was wise of the grandmother to contact Anna and ask someone she hardly knows to be involved in the life of this child. In any event, the child certainly lucked out. Anna turned out to be caring, unselfish and supportive even though her husband, the child’s father, had long since passed away. Hopefully, Anna’s stepchild is granted derivative citizenship, but even if for some reason he is not, he will certainly have a brighter future in the custody of Anna after he is petitioned and granted an immigrant visa. Maybe I should not comment on the wisdom of the grandmother’s decision. Maybe not all stepparents are like Cinderella’s stepmother.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
