It is now easier for fathers to transmit citizenship to their out of wedlock children

It is now easier for fathers to transmit citizenship to their out of wedlock children

U.S. immigration law allows citizen parents to “transmit” or pass on U.S. citizenship to their children born abroad, provided certain requirements are met. One requirement for U.S. citizen fathers to transmit citizenship to their out of wedlock (illegitimate) children is that the child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child’s 18th birthday.

In many cases, the government had insisted this statement of support be on a specific form, DS-5507, Affidavit of Parentage, Physical Presence, and Support. A court order or local law requiring the father to pay child support would be insufficient, the father must “agree in writing.

On April 18, 2018, the USCIS updated its Policy Manual to clarify “what may qualify as a father’s written agreement of financial support for purposes of certain acquisition of citizenship cases.” According to USCIS policy:

  • The phrase “has agreed in writing to provide financial support” means that there “must be documentary evidence that supports a finding that the father accepted the legal obligation to support the child until the age of 18.” The written agreement of financial support may be dated at any time before the child’s 18th
  • If the child is still under 18 at the time of applying for a U.S. passport or Certificate of Citizenship, the father may provide the written agreement of financial support as part of the application for U.S. citizenship or passport.
  • If the child is already over the age of 18, the child can submit evidence of the father’s agreement to support the child that existed before the child’s 18th birthday. In other words, if the child is already over 18, it’s too late for the father to agree in writing to support the child.
  • The agreement must be in writing and acknowledged by the father; must indicate the father’s agreement to provide financial support for the child until the child’s 18th birthday; and must be dated before the child’s 18th
  • If there is no written agreement to support the child, other documents could be acceptable and satisfy that requirement, such as:
    • A previously submitted affidavit of support
    • Military Defense Eligibility Reporting System (DEERS) enrollment;
    • Documentation establishing paternity by a court, if the father initiated the paternity proceedings and the law required the father to provide financial support; or
    • A petition by the father seeking child custody or visitation, and the local law requires the father to provide financial support.

This clarification could enable previously ineligible out of wedlock children to now claim their U.S. citizen birthright. In fact, I remember one case where the U.S. Embassy refused to issue a U.S. passport to an out of wedlock child, even though the father was under court order to pay child support, and had been paying the child support. That is because they insisted that the agreement to support be on a specific form and in a specific format. USCIS clarifies that other types of documentation can satisfy this “agreement in writing to provide financial support.”

If your out of wedlock child’s citizenship was denied because of this issue, you may want to consult with an immigration attorney, to see if this change in policy could change the result on your case, by having your child recognized as an “instant U.S. citizen.”

Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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