Should I Wait for Congress? Or Should I Naturalize Now?

If enacted, the Adoptee Citizenship Act would eliminate a loophole that currently denies US citizenship to thousands of adult intercountry adoptees. As yet another session winds down with less and less hope that the bill will pass, I typically explore two key questions with intercountry adoptee clients: should I wait to see if Congress fixes things or should I move ahead now and naturalize? Here are some of the important things to think about when considering that choice.

Note: This is for general informational purposes only. Multiple factors go into legal decisions related to immigration or US citizenship applications. Because every situation is different, this general information is not intended as legal advice to cover any specific situation. Questions about what options you have and the best options to consider given your own circumstances should be guided by legal representation or direct consultation with an attorney.

First, Where We Stand

Importantly, with some exceptions and limitations, under various versions of the Adoptee Citizenship Act all of the following events must occur before age 18 to acquire US citizenship, no matter your date of birth:

1. You are a legal permanent resident (i.e., you received a green card). This typically, but not always, occurs upon entry to the US after adoption or guardianship proceedings in your country of birth or origin;
2. You were fully and finally adopted, either in the country of origin or in the United States, prior to age 16;
3. You were physically present in the US in the custody of your adoptive parents for at least two years.

Eliminating a birth date limitation. Current law, known as the Child Citizenship Act, requires that you must have been under 18 years of age as of February 27, 2001. This is the discriminatory provision in the law that is being addressed by pending bills. That is, if the pending bill passes as currently drafted, intercountry adoptees would acquire US citizenship so long as they met the three above requirements, no matter the adoptee’s date of birth.

If the Adoptee Citizenship Act Passes: Securing Proof of Citizenship

Let’s assume some form of the Adoptee Citizenship Act passes. In that case, most (but not all) intercountry adoptees in the United States will acquire US citizenship automatically. The issue then becomes logistical; that is, what’s the best way to secure proof of that citizenship? That process should be straightforward in most cases, though the one far more complicated issue relates to intercountry adoptees who have been previously deported and are no longer present in the United States.

For most adoptees who qualify, you could either apply for a Certificate of Citizenship, which I usually recommend to my clients, or for a US passport, which is far less expensive and speedier but a more limited proof of citizenship, as a passport can be revoked or denied for a number of reasons—even if you are already a citizen. Applying for a Certificate of Citizenship is not hard, but it is more expensive and not intuitively easy. You still must provide proof of each of the three requirements of the Child Citizenship Act: legal permanent residence; full and final adoption; and physical presence for two years in the physical and legal custody of your adoptive parents in the United States. That proof is typically fairly straightforward to secure but it may involve significant time in doing so. Generally, the most difficult documents to obtain are a copy of your full and final adoption decree and proof that you entered the country as a legal permanent resident (i.e., entered on an immigrant visa and received a green card). Luckily, these records may already exist in the files of USCIS, which I discuss in more detail below.

Naturalizing Now

If I were to advise a hypothetical client who is asking whether to 1) wait for Congress to act and then get a certificate of citizenship or passport; or 2) apply for naturalization now, I generally would recommend preparing for naturalization now.

If naturalizing is the only option or it is one that a client wants to move ahead with now, important legal caveats must be investigated and discussed first. For instance, because of the more extensive vetting process for naturalization, a number of issues could pop up and create hiccups, problems, or worse: referral to immigration enforcement. That is, while the issues I outline below do not necessarily disqualify intercountry adoptees from naturalizing today (and I’ve successfully represented clients who have had one or more of these issues when they naturalize), they are typically the most common problems that come up in the naturalization process for adopted people. These issues need to be vetted and discussed with an attorney thoroughly before applying, preferably by an attorney who is knowledgeable with intercountry adoption and, importantly, has experience representing adult adoptees seeking US citizenship. Those issues include:

• You registered to vote or have voted in an election in the past;
• You have claimed to be a US citizen in the past, even though you believed at the time you were a US citizen;
• Your adoption was never finalized (your only option in this case is naturalization, as the Child Citizenship Act and the pending bills in Congress do not help you);
• You entered the United States on a visitor/tourist or humanitarian visa and never became a legal permanent resident (i.e., you never received a green card as a child). Current law—as well as the pending bills—do not cover intercountry adoptees who entered the country on non-immigrant visas, unless they later “adjusted status” and received a green card before age 18;
• You have a criminal conviction or record, other than minor infractions (even these would still need to be reviewed). In addition, for many prior serious criminal convictions, particularly those with a prison sentence of more than a year, you may not qualify to naturalize;
• You have other issues that are less common with intercountry adoptees and other immigrants, such as failure to pay child support or spousal maintenance or failure to register with the Selective Service;
• You have been removed from the United States (deported), are under a removal order, or have been in removal proceedings in the past.

If there are issues that may prevent naturalization or even potentially lead to referral to immigration enforcement, it’s far better to wait to see what happens in Congress. I have a number of clients that I have advised to do just that: wait, especially if certain disqualifying circumstances will no longer be relevant if a fix is enacted.

The Differences: Cost, Time, Anxiety

The table below sets out the primary differences between naturalizing now or, if the current bill is enacted, applying for a passport or a certificate of citizenship later. The primary differences are cost and time. But, for naturalization, the process can be significantly more stressful and anxiety-driven on account of the far more intensive review process, which includes a lengthy application, background check, additional documentation, and a final interview with a USCIS field officer. That stress and anxiety should not be discounted, though it is somewhat lessened with an attorney who can help.

Two Steps to Take Now

Whether you are thinking about naturalizing now or you are waiting to see what happens with Congressional action later, you could take two steps now to help the process whatever your decision or whatever the outcome of the bill.

1. Apply for a copy of your “Alien File” with USCIS. This is done through a free and fairly easy to use online FOIA (Freedom of Information Act) portal with USCIS. This is always the first step I take in representing any client. The “A File” usually contains your entire immigration record, including the visa used to enter the country as well as what your legal status was upon entry to the United States. The A File for adoptees may also have birth and adoption records, as well as records related to adoptive parents, such as their birth and marriage records (and often, home studies related to the adoption). Records from the A File are often critical to understanding what records USCIS already possesses and what you may need to obtain separately as part of any citizenship application. No competent attorney handling a naturalization or citizenship case would file that case without first obtaining and reviewing the client’s entire A File.
   
2. Obtain your official school records in the United States. Usually, I obtain my client’s enrollment record in their prior school district as well as a high school transcript, if available. These records are typically the best and most easily accessible records used to demonstrate that, as an intercountry adoptee, you were physically present in the United States and in the custody of your adoptive parents for at least two years. This is one of the requirements of the Child Citizenship Act.

Key to Notes in the Table

*The book form of the passport is $110, but I typically recommend to intercountry adoptee clients that they apply for both the passport book and the passport card, which makes the cost $140, plus any costs for passport photos. The passport card can then be carried more easily as proof of citizenship while the book can be safeguarded and used when necessary for international travel. Even for clients who obtain a Certificate of Citizenship, I still advise obtaining a passport book and a passport card.

**Certain criminal convictions may result in a passport being denied or, in some cases, revoked. The Department of State’s ability to revoke or deny a passport, however, is far more limited than the ability under immigration law to deny a naturalization application.

***If you qualify for citizenship under the Child Citizenship Act (assuming it is amended by the pending bill), you may need to provide certified copies of the final adoption decree, which may be difficult to obtain for adoptions finalized in the country of birth or origin.

****Wait times or overall processing times vary considerably across the country, depending on the field office handling the particular application. Processing times have also increased on account of COVID-19, and a significant processing backlog still exists. Also, in my experience applying for a Certificate of Citizenship for intercountry adoptees has taken longer than the stated national average of 6.3 months.