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Int[ernational] Adoption
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DEC-14-1999 09:48
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U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, DC 20030
November 22, 1999
The Honorable Lamar S. Smith
Chairman
Subcommittee on Immigration and Claims
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This letter presents the views of the Justice Department on
S. 1485, the "Adopted Orphans Citizenship Act." The Department
supports measures to streamline the acquisition of United States
citizenship by adopted children of United States citizen parents.
However, we have serious concerns about S. 1485, as currently
drafted, because it is inconsistent with long-standing,
fundamental principles of United States nationality law and it
would inject confusion and uncertainty into the law. The
Department, in close consultation with the Department of State,
however, has prepared alternate legislation for consideration,
which we believe not only will eliminate the current inequities
in the acquisition of citizenship by biological and adopted
children but will also streamline the citizenship documentation
process. The legislation provides for automatic acquisition of
citizenship for those children who have been admitted for lawful
permanent residence.
S. 1485 would make an alien child under the age of 18 years
adopted by a United States citizen parent meeting certain
physical presence requirements a national and citizen of the
United States at birth if the child was physically present in the
United States with the citizen parent, was lawfully admitted for
permanent residence, and sought documentation as a United States
citizen while under the age of 18. By placing this provision in
section 301 of the Immigration and Nationality Act ("INA"),
S. 1485 attempts to make individuals retroactively citizens "at
birth" based entirely on events and conditions occurring after
birth. In so doing, S. 1485 confuses the fundamental distinction
between the acquisition of citizenship at birth and the
acquisition of citizenship through conferral after birth, or
"naturalization." Section 101 (a) (23) of the INA defines
DEC-14-1999 09:49
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naturalization as "the conferring of nationality of a state upon
a person after birth, by any means whatsoever."
A nation may legitimately claim the allegiance of an
individual in one of three ways: 1) birth on its soil (jus soli)
2) birth to a citizen parent (jus sanguinis); or 3) a voluntary
choice after birth by a qualifying individual (naturalization)
Citizenship by birth is conferred automatically and is not a
matter of voluntary choice. S. 1485 attempts to confer
citisenship by birth based on later, voluntary actions by the
alien or his adoptive parent. In addition to contradicting the
statutory definition of naturalization, this would create a legal
fiction in which the alien WAS deemed always to have been a
United States citizen. However, this 10 not DO. Neither at the
time of the child's birth abroad to alien parents nor at any
other time prior to the child's adoption by a United States
citizen, did the United States have a legitimate or supportable
claim to the allegiance of the child under the customary law of
nations.
To claim by later decree that a child who undeniably was not
in fact a citizen of the United States was a U.S. citizen from
birth could have unintended harmful international consequences,
particularly with respect to the child's country of origin. The
foreign state involved might be offended by this treatment. with
unpredictable results. The foreign state might conclude that its
rights were being interfered with (e.g., because the conferral of
U.S. citizenship might be used to defeat efforts by the foreign
state to take actions with respect to the child). In the case of
a state whose domestic law provides for loss of that state's
nationality upon acquisition of a foreign nationality, such as
that of the United States, acquisition of U.S. nationality
retroactively could create confusion about the child's status
vis-a-vis the other country during the period prior to adoption.
Confusion might also result if the foreign state's domestic law
treated residents who held foreign nationality differently for
the purposes of educational, health, or other benefit programs.
Issues, such as the ability of the foreign state and/or the
United States to espouse claims on behalf of the child, could
become confused. Foreign states presumably would not recognize
the right of the United States to espouse claims on behalf of the
child that arose prior to the adoption, regardless of the
retroactive conferral of U.S. citizenship. Indeed, some states
might decide not to permit adoptions to the United States in
order to prevent issues such as these from arising in the first
instance.
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The confusion S. 1485 would cngender is not justified by any
meaningful advantage to foreign-born, adopted children who
otherwise would be naturalized upon fulfillment of the necessary
conditions. Naturalized citizens of the United States stand upon
an equal footing, in terms of their rights and privileges, with
native-born citizens. E.g., Schneider Y. Rusk, 377 U.S. 163, 165
(1964). The only exception to this principle is the limitation
of eligibility for the office of President of the United States
to "natural born" citizens in Article II of the Constitution.
This clause has never been definitively interpreted by the
Supreme Court, and S. 1485 does not and cannot resolve questions
as to its meaning, either.
In addition, 5. 1485 favors adopted over certain biological
children of United States citizens, in that certain adopted
children will receive the benefit of citizenship at birth, while
biological children, potentially of the name United States
citizen parents, would not. For example, if two United States
citizen parents, neither of whom has resided in the United
States, bore 3 biological child abroad, under current law that
child would not be a United States citizen at birth. The parents
would have to immigrate with the child to the United States and
apply for naturalization before the child could become is united
States citizen. Suppose that this same couple, after the birth
of the biological child, took up residence in the United States
for five ycars and then adopted an alien child. Under S. 1485,
the adopted child would become A United States citizen at birth
upon attaining lawful permanent residence while under 18 years of
age, while the biological child could never be a citizen at
birth.
This retroactive conferral of citizenship on a class of
adopted children would also create unacceptable differences
between adopted children and other persons who acquire United
States citizenship through naturalization. In fact, the proposed
legislation would bestow greater benefits upon children with no
nexus to the United States at birth than those currently enuring
to children born abroad who, while having a United States citizen
parent at birth, do not acquire United States citizenship
pursuant to the principle of jus sanguinis. For example, a
child born overseas to a United States citizen parent who is
unable to transmit citizenship at birth in accordance either with
subsections (c). (d), (e), and (g) of section 301 or with
subsections (a) and (c) of section 309 of the INA, can apply for
a certificate of citizenship under section 322 of the INA. Such
citizenship does not relate back to the child's birth and is
decmed to have been obtained through naturalization.
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Similarly, a child born outside of the United States to an
alien parent and United States citizen parent who is not capable
of transmitting citizenship also conceivably can naturalize as a
United States citizen in accordance with section 320 of the INA.
Again, the individual acquires citizenship via the naturalization
process ab set forth in chapter 2 of title III of the INA. Such
citizenship only becomes effective at the time of the alien
parent's naturalization. We note that adopted children
currently are able to take advantage of the provisions of
sections 320 and 322.
In conclusion, the Department reiterates ito support for
efforts to streamline the acquisition of United States
citizenship by adopted children of United States citizen parents.
However, S. 1485 would inject confusion and uncertainty into the
law. We would be glad to work with Congress on alternative ways
of achieving this goal. Enclosed is draft legislation which we
believe untangles the complex and duplicative provisions of the
Immigration and Nationality Act relating to citizenship of
children. This legislation eliminates inequities in the current
law by creating a standard set of conditions for foreign-born
children of United States citizens to acquire citizenship. This
legislation also eliminates in most instances the necessity for
the Immigration and Naturalization Service to adjudicate
applications for children adopted by U.S. citizen parents to
become citizens of the United States after having been admitted
as lawful permanent residents. This legislation provides for
fair treatment of all biological and adopted children in terms of
acquisition of United States citizenship.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of further
assistance. The office of Management and Budget has advised us
that, from the standpoint of the Adminietration's program, there
is no objection to the submission of this letter.
Sincerely,
Robert Raben
Assistant Attorney General
Enclosure
IDENTICAL LETTER SENT TO THE RANKING MINORITY
MEMBER OF THE SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
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SECTION 1. SHORT TITLE
This Act may be cited as the "Child Citizenship Act of 1999".
SEC 2. CHILDREN BORN OUTSIDE UNITED STATES- AUTOMATIC
CITIZENSHIP
Section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read
as follows:
"320 CHILDREN BORN OUTSIDE OF UNITED STATES;
CONDITIONS UNDER WHICH CITIZENSIIIP AUTOMATICALLY ACQUIRED
"Sec. 320.
(a)
A child born outside of the United States automatically becomes 4 citizen of the
United States on the date when, irrespective of the order of fulfillment, all of the
following conditions are fulfilled-
(1)
at least one parent is a citizen of the United States, whether by birth or
naturalization;
(2)
the United States citizen parent-
(A) has been physically present in the United States or its outlying
possessions for a period or periods totaling not less than five years,
at least two of which were after attaining the age of fourteen years:
or
(B)
has a citizen parent who has been physically present in the United
States or its outlying possessions for a period or periods totaling
not less than five years, at least two of which were after attaining
the age of fourteen years;
(3)
the child is under the age of eighteen years; and
(4)
the child is residing in the United States in the legal and physical custody
of the citizen parent pursuant to a lawful admission for permanent
residence.
(e)
Subsection (a) of this section shall apply to an adopted child only if the child
satisfies the requirements for being a child under subparagraph (E) or (F) of
section 101(b)(1) of this Act or any other provision subsequently enacted relating
to adopted children under section 101(b)(1) of this Act."
SEC. 3 CHILDREN BORN OUTSIDE OF UNITED STATES- NATURALIZATION
Section 322 of the Immigration and Nationality Act (8 U.S.C. 1433) is amended to read
as follows:
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"322 CHILD BORN AND RESIDING OUTSIDE OF UNITED STATES;
CONDITIONS FOR ACQUIRING CERTIFICATE OF NATURALIZATION
"Scc. 322.
(a)
A parent who IS a citizen of the United States may apply for naturalization on
behalf of il child bon outside of the United States. The Attorney General shall
issue a certificate of naturalization to such parent upon proof, to the satisfaction
of the Attorney General, that the following conditions have been fulfilled-
(1)
at least one parent is 2 citizen of the United States, whether by birth
or naturalization;
(2)
the United States citizen parent-
(A)
has been physically present in the United States or its
outlying possessions for a period or periods totaling not less
than five years, at lcast two of which were after attaining
the age of fourteen years; or
(B)
has a citizen parent who has been physically present in the
United States or its outlying possessions for a period or
periods totaling not less than five years, at least two of
which were after attaining the age of fourteen years;
(C)
the child is under the age of eighteen years; and
(D)
the child is residing outside of the United States in the legal
and physical custody of the citizen parent, and is
temporarily present in the United States pursuant to a
lawful admission and is maintaining such lawful status.
(e)
Upon approval of such application (which may be filed from abroad) and, except
as provided in the last sentence of section 377(a), upon taking and subscribing
before an officer of the Service within the United States to the oath of allegiance
required by this Act of an applicant for naturalization, the child shall become a
citizen of the United States and shall be furnished by the Attorney General with
a certificate of naturalization.
(f)
Subscotions (a) and (b) of this section shall apply to an adopted child only if the
child satisfics the requirements for being a child under subparagraph (E) or (F)
of section 101(b)(1) of this Act or any other provision subsequently enacted
relating to adopted children under section 101(b)(1) of this ACL."
SEC. 4 CONFORMING AMENDMENTS
Section 321 of the Immigration and Nationality Act (8 U.S.C. 1432) is repealed and
reserved.
2
207
shall 900
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6015
SEC. 5 EFFECTIVE DATE
(a)
IN GENERAL-The amendments made by this Act shall take effect 120 days
after construent of this Act.
(e)
RETROACTIVE APPLICATION.-U, upon the effective date of this Act, 3
person has attained the age of eighteen, and, while under the age of eighteen
otherwise met the requirements of section 320 as amended by this Act prior to
the effective date, such person may apply to the Attorney General for a
certificate of naturalization. Upon taking and subscribing before an officer of
the Service within the United States to the oath of allegiance required by the
Immigration and Nationality Act, the person shall become a citizen of the United
States and shall be furnished by the Attorney General with a certificate of
naturalization.
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Explanation of Changes
Under current sections 320, 321, and 322, there are two methods for foreign-born
children to obtain United States citizenship from their citizen parents. Under sections 320 and
321, children admitted for lawful permanent residence generally derive citizenship when the
alien parent(s) naturalizes before the child attains 18 years of age. No application Is required for
children to obtain citizenship under these provisions. Alternatively, under current section 322, a
United States citizen parent may file an application to naturalize a child who has not attained 18
years of age if the parent (or the parent's citizen parent) has lived in the United States for a total
of S years, at least 2 of those years after the age of 14. Under this provision, children need not in
all instances bc admitted for lawful permanent residence in order to obtain citizenship through
naturalization.
This current dual scheme for foreign-born children of United States citizens is further
complicated in the case of children adopted by two United States citizens. In these cases, the
adoptive parents do not have the convenience of automatically transferring citizenship to their
child because neither is eligible to naturalize. This is true even though, in most cases, the parents
would have transferred their citizenship to their children if they had given birth abroad. These
parents must all file an application to naturalize their children under section 322.
The Child Citizenship Act (the Act) attempts to untangle the complex and duplicative
provisions of the INA relating to the citizenship of children. The Act creates a standard set of
conditions for foreign-burn children of United States citizens to become citizens of the United
States. Under the standard, children under 18 years of age may become citizens of the United
States if they have at least Due citizen parent and they live in the legal and physical custody of the
citizen parent. In order for these children to bccome citizens, their citizen parent must have
physically resided in the United States for at least 5 years, 2 of which must have been after
attaining 14 years of age.
The Act provides for automatic acquisition of citizenship for children who have been
admitted for lawful permanent residence and who fulfill the conditions before attaining 18 years
of age. The parents of these children are not required to file an application with INS in order to
become citizens. However, parents have the option of applying to the Immigration and
Naturalization Service for a certificate of citizenship or the United States Passport Agency for a
passport on behalf of their children in order to document citizenship. Children who have bccn
admitted for lawful permanent residence but who are unable to fulfill the conditions before
attaining 18 years of age are still able to apply for naturalization on their own behalf under the
normal requirements
The same requirements apply to children who reside abroad: children under the age of
eighteen may become citizens of the United States If they have at least one United States citizen
parent and they reside in the legal and physical castody of the citizen parent. However. if those
children come to the United States as nonimmigrants they are required to file an application to
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202
obtain citizenship, while children admitted for lawful permanent residence automatically derive
citizenship without any documentation requirements.
The parents of children who reside abroad and who fulfill the conditions must apply to
INS for naturalization In order to be naturalized, children residing abroad must complete the
naturalization process before attaining 18 years of age. The Immigration and Naturalization
Service will issue these children a certificate of naturalization. If parents fail to apply for
naturalization of these children before the children attain 18 years of age, they will no longer be
eligible for naturalization based on the United States citizenship of the parent or grandparent.
However, after the child attains 18 years of age, parents may still petition for the child to become
an alien lawfully admitted for permanent residence, and then the children may apply for
naturalization on their own behalf under the normal requirements.
This Act eliminates inequities among current provisions of the Immigration and
Nationality Act relating to acquisition and derivation of citizenship by children. It also
eliminates necessity for the Immigration and Naturalization Service to adjudicate applications for
naturalization for children to become citizens of the United States after being admitted for lawful
permanent residence.
This Act provides for fair treatment of biological children and adopted children in
becoming United States citizens. Adopted children must satisfy the requirements for being an
"orphan" or an" adopted child" under sections 101(b)(1)(E) or (F) of the Immigration and
Nationality Act to qualify for citizenship under these provisions.
S
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FROM: 465 L MACECEVIC
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U.S. Department of Justice
Office of Legislative Affairs
Office of the Assistant Attorney General
Washington, D.C. 20530
The Honorable Lamar S. Smith
Chairman
Subcommittee on Immigration and Claims
Committee on the Judiciary
U.S. House of Representatives
Washington, D.C. 20515
Dear Mr. Chairman:
This letter presents the views of the Justice Department on
S. 1485, the "Adopted Orphans Citizenship Act." The Department
supports
favors measures to streamline the acquisition of United States
citizenship by adopted children of United States citizen parents.
However, we Strongly oppose S. 1485 as currently drafted because
have very
it is inconsistent with long-standing, fundamental principles of
seriove
United States nationality law and it would inject confusion and
concerns
uncertainty into the law. The Department, however, has prepared
alternate legislation for consideration which we believe not only
with
will eliminate the current inequities in the acquisition of
citizenship by biological and adopted children but also
streamline the citizenship documentation process. The
legislation provides for automatic acquisition of citizenship for
those children who have been admitted for lawful permanent
residence.
S. 1485 would make an alien child under the age of 18 years
adopted by a United States citizen parent meeting certain
physical presence requirements a national and citizen of the
United States at birth if the child was physically present in the
United States with the citizen parent, was lawfully admitted for
permanent residence, and sought documentation as a United States
citizen while under the age of 18. By placing this provision in
section 301 of the Immigration and Nationality Act ("INA"), S.
word
1485 attempts to make individuals retroactively citizens "at
six
birth" based entirely on events and conditions occurring after
birth. In so doing, S. 1485 confuses the fundamental distinction
between the acquisition of citizenship at birth and the
acquisition of citizenship through conferral after birth, or
"naturalization." Section 101 (a) (23) of the INA defines
NOV-05-1999 17:51 TO:410 BUENO
FROM:465 L MACECEVIC
P.5/11
naturalization as "the conferring of nationality of a state upon
a person after birth, by any means whatsoever."
A nation may legitimately claim the allegiance of an
individual in one of three ways: 1) birth on its soil (jus soli)
2) birth to a citizen parent (jus sanguinis) i or 3) a voluntary
choice after birth by a qualifying individual (naturalization)
Citizenship by birth is conferred automatically and is not a
matter of voluntary choice. S. 1485 attempts to confer
citizenship by birth based on later, voluntary actions by the
alien or his adoptive parent. In addition to contradicting the
statutory definition of naturalization, this would create a legal
fiction in which the alien was deemed always to have been a
United States citizen. However, this is not so. Neither at the
time of the child's birth abroad to alien parents nor at any
other time prior to the child's adoption by a United States
citizen, did the United States have a legitimate or supportable
claim to the allegiance of the child under the customary law of
nations.
To claim by later decree that a child who undeniably was a
Is this
citizen of a foreign state by birth under all applicable fact and
law at that time, in fact was a United States citizen from birth
the
State
could have harmful consequences. Presumably, consistent with
S. 1485 's provision that the citizenship claim of the United
Department
States extends back to the time of the child's birth, the foreign
state could conclude that the child never was its citizen. The
view?
possible implications of this conclusion depending on the
nation could reach issues such as possible claims for
reimbursement of educational, health care, and other benefits
provided to the child before adoption, based upon the mistaken.
impression that the child was a citizen of that state,
particularly if such benefits are not available to that state's
citizens temporarily residing in the United States.
Alternatively, the foreign state could view a retroactive award
of citizenship as an action in derogation of its sovereignty,
which would not be conducive to cooperative relations with that
country in matters of international adoptions. In other words,
the less appealing side of retroactively granting United States
citizenship at birth is retroactively revoking foreign
citizenship at birth an action to which the United States
could not reasonably object in light of S. 1485's provisions.
The confusion S. 1485 would engender is not justified by any
meaningful advantage to foreign-born, adopted children who
otherwise would be naturalized upon fulfillment of the necessary
conditions. Naturalized citizens of the United States stand upon
an equal footing, in terms of their rights and privileges, with
-2-
NOV-05-1999 17:51 TO:410 BUENO
FROM: 465 L MACECEVIC
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SECTION 1. SHORT TITLE
This Act may be cited as the "Child Citizenship Act of 1999".
SEC 2.
Section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as follows:
"320 CHILDREN BORN OUTSIDE OF UNITED STATES;
CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED
"Sec. 320.
(a)
A child born outside of the United States automatically becomes a citizen of the United
States on the date when all of the following conditions are fulfilled--
(1)
at least one parent is a citizen of the United States, whether by birth or
naturalization;
(2)
the United States citizen parent-
(A)
has been physically present in the United States or its outlying
possessions for a period or periods totaling not less than five years, at
least two of which were after attaining the age of fourteen years; or
(B)
has a citizen parent who has been physically present in the United States
or its outlying possessions for a period or periods totaling not less than
five years, at least two of which were after attaining the age of fourteen
years;
(3)
the child is under the age of eighteen years; and
(4)
the child is residing in the United States in the legal and physical custody of the
citizen parent pursuant to a lawful admission for permanent residence.
(e)
Subsection (a) of this section shall apply to an adopted child only if the child satisfies the
requirements for being a child under subparagraph (E) or (F) of section 101(b)(1) of this
Act or any other provision subsequently enacted relating to adopted children under
section 101(b)(1) of this Act."
SEC. 3
Section 322 of the Immigration and Nationality Act (8 U.S.C. 1433) is amended to read as follows:
"322 CHILD BORN AND RESIDINGOUTSIDE OF UNITED STATES;
CONDITIONS FOR ACQUIRING CERTIFICATE OF NATURALIZATION
"Sec. 322.
(a)
A parent who is a citizen of the United States may apply for naturalization on
behalf of a child born outside of the United States. The Attorney General shall
issue a certificate of naturalization to such parent upon proof, to the satisfaction
of the Attorney General, that the following conditions have been fulfilled--
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LRM ID: LJM55 SUBJECT: REVISED JUSTICE Report on S1485 Adopted Orphans Citizenship Act
RESPONSE TO
LEGISLATIVE REFERRAL
MEMORANDUM
If your response to this request for views is short (e.g., concur/no comment), we prefer that you respond by
e-mail or by faxing us this response sheet. If the response Is short and you prefer to call, please call the
branch-wide line shown below (NOT the analyst's line) to leave a message with a legislative assistant.
You may also respond by:
(1) calling the analyst/attorney's direct line (you will be connected to voice mall if the analyst does
not answer); or
(2) sending us a memo or letter
Please Include the LRM number shown above, and the subject shown below.
TO:
Lisa J. Macecevic Phone: 395-1092 Fax: 395-3109
Office of Management and Budget
Branch-Wide Line (to reach legislative assistant): 395-3454
FROM:
11/14/99
(Date)
IRENE BUEND
(Name)
DPC
(Agency)
6.6558
(Telephone)
The following is the response of our agency to your request for views on the above-captioned subject:
Concur
No Objection
No Comment
See proposed edits on pages
Other:
FAX RETURN of
pages. attached to this response sheet
NOV-05-1999 17:51 TO:410 BUENO
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Total Pages:
LRM ID: LJM55
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
Washington, D.C. 20503-0001
Friday, November 5, 1999
LEGISLATIVE REFERRAL MEMORANDUM
TO:
Legislative Liaison Officer See Distribution below
FROM:
Grichar Richard E E. yum Green
(for) Assistant Director for Legislative Reference
OMB CONTACT:
Lisa J. Macecevic
E-Mail: [email protected]
PHONE: (202)395-1092 FAX: (202)395-3109
SUBJECT:
REVISED JUSTICE Report on S1485 Adopted Orphans Citizenship Act
DEADLINE:
4:00 PM Tuesday, November 9, 1999
In accordance with OMB Circular A-19, OMB requests the views of your agency on the above subject
before advising on its relationship to the program of the President. Please advise us if this item will
affect direct spending or receipts for purposes of the "Pay-As-You-Go" provisions of Title XIII of
the Omnibus Budget Reconciliation Act of 1990.
COMMENTS: Attached is a revised letter on S. 1485, first circulated under LJM48.
Please return any comments by 4:00 PM Tuesday November 9th.
Thank you.
DISTRIBUTION LIST
AGENCIES:
62-LABOR - Robert A. Shapiro - (202) 219-8201
83-National Security Council - Glyn T. Davies - (202) 456-9221
114-STATE Julia C. Norton - (202) 647-4463
EOP:
Steven M. Mertens
Debra J. Bond
Irene Bueno
Stuart Shapiro
Michelle Peterson
Christine J. Lindsey
Joseph G. Pipan
Steven D. Aitken
Leanne A. Shimabukuro
Scott Busby
Elizabeth Gore
Broderick Johnson
Lauren K. Gillespie
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Mary Jo Siclari
Gregory G. Henry
Suzanne L. White
Brian V. Kennedy
Sandra Yamin
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FROM: 465 L MACECEVIC
IT/9 °/
native-born citizens. E.g., Schneider V. Rusk, 377 U.S. 163, 165
(1964). The only exception to this principle is the limitation
of eligibility for the office of President of the United States
to "natural born" citizens in Article II of the Constitution.
This clause has never been definitively interpreted by the
Supreme Court and S. 1485 does not and cannot resolve questions
as to its meaning either.
In addition, S. 1485 favors adopted over certain biological
children of United States citizens, in that certain adopted
children will receive the benefit of citizenship at birth, while
biological children, potentially of the same United States
citizen parents, would not. For example, if two United States
citizen parents, neither of whom has resided in the United
States, bore a biological child abroad, under current law that
child would not be a United States citizen at birth. The parents
would have to immigrate the child to the United States and apply
for naturalization before the child could become a United States
citizen. Suppose that this same couple, after the birth of the
biological child, took up residence in the United States for five
years and then adopted an alien child. Under S. 1485, the
adopted child would become a United States citizen at birth upon
attaining lawful permanent residence while under 18 years of age,
while the biological child could never be a citizen at birth.
This retroactive conferral of citizenship on a class of
adopted children would also create unacceptable differences
between adopted children and other persons who acquire United
States citizenship through naturalization. In fact, the proposed
legislation would bestow greater benefits upon children with no
nexus to the United States at birth than those currently enuring
to children born abroad who, while having a United States citizen
parent at birth, do not acquire United States citizenship
pursuant to the principle of jus sanguinis. For example, a
child born overseas to a United States citizen parent who is
unable to transmit citizenship at birth in accordance either with
paragraphs (c), (d), (e), and (g) of section 301 or with
paragraphs (a) and (c) of section 309 of the INA, can apply for a
certificate of citizenship under section 322 of the INA. Such
citizenship does not relate back to the child's birth and is
deemed to have been obtained through naturalization.
Similarly, a child born outside of the United States to an
alien parent and United States citizen parent who is not capable
of transmitting citizenship also conceivably can naturalize as a
United States citizen in accordance with section 320 of the INA.
Again, the individual acquires citizenship via the naturalization
process as set forth in chapter 2 of title III of the INA. Such
citizenship only becomes effective at the time of the alien
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parent's naturalization. We note that adopted children
currently are able to take advantage of the provisions of
sections 320 and 322.
In conclusion, the Department reiterates its support for
efforts to streamline the acquisition of United States
citizenship by adopted children of United States citizen parents.
However, S. 1485 would inject confusion and uncertainty into the
law. We would be glad to work with Congress on alternative ways
of achieving this goal. Enclosed is draft legislation which we
believe untangles the complex and duplicative provisions of the
Immigration and Nationality Act relating to citizenship of
children. This legislation eliminates inequities in the current
law by creating a standard set of conditions for foreign-born
children of United States citizens to acquire citizenship. This
legislation also eliminates in most instances the necessity for
the Immigration and Naturalization Service to adjudicate
applications for children adopted by U.S. citizen parents to
become citizens of the United States after having been admitted
as lawful permanent residents. This legislation provides for
fair treatment of all biological and adopted children in terms of
acquisition of United States citizenship.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of further
assistance. The Office of Management and Budget has advised us
that, from the standpoint of the Administration's program, there
is no objection to the submission of this letter.
Sincerely,
Robert Raben
Assistant Attorney General
Enclosure
IDENTICAL LETTERS SENT TO THE HONORABLE SHEILA JACKSON LEE, THE
HONORABLE HENRY J. HYDE, THE HONORABLE JOHN CONYERS, JR.
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(1)
at least one parent is a citizen of the United States, whether by birth or
naturalization;
(2)
the United States citizen parent--
(A)
has been physically present in the United States or its outlying
possessions for a period or periods totaling not less than five
years, at least two of which were after attaining the age of
fourteen years; or
(B)
has a citizen parent who has been physically present in the
United States or its outlying possessions for a period or periods
totaling not less than five years, at least two of which were after
attaining the age of fourteen years;
(C)
the child is under the age of eighteen years; and
(D)
the child is residing outside of the United States in the legal and
physical custody of the citizen parent, and is temporarily present
in the United States pursuant to a lawful admission and is
maintaining such lawful status.
(e)
Upon approval of such application (which may be filed from abroad) and, except
as provided in the last sentence of section 337(a), upon taking and subscribing
before an officer of the Service within the United States to the oath of allegiance
required by this Act of an applicant for naturalization, the child shall become a
citizen of the United States and shall be furnished by the Anomey General with
a certificate of naturalization.
(f)
Subsections (a) and (b) of this section shall apply to an adopted child only if the
child satisfies the requirements for being a child under subparagraph (E) or (F)
of section 101(b)(1) of this Act or any other provision subsequently enacted
relating to adopted children under section 101(b)(1) of this Act."
SEC. 4 CONFORMING AMENDMENTS
Section 321 of the Immigration and Nationality Act (8 U.S.C. 1432) is repealed and reserved.
SEC. 5 EFFECTIVE DATE
(a)
IN GENERAL-The amendments made by this Act shall take effect 120 days
after enactment of this Act.
(b)
RETROACTIVE APPLICATION.-If, upon the effective date of this Act, a
person has attained the age of eighteen, and, while under the age of eighteen
otherwise met the requirements of section 320 as amended by this Act prior to
the effective date, such person may apply to the Attorney General for a
certificate of naturalization. Upon taking and subscribing before an officer of
the Service within the United States to the oath of allegiance required by the
Immigration and Nationality Act, the person shall become a citizen of the United
States and shall be furnished by the Attorney General with a certificate of
naturalization.
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Explanation of Changes
Under current sections 320, 321, and 322, there are two methods for foreign-born children to obtain
United States citizenship from their citizen parents. Under sections 320 and 321, children admitted for
lawful permanent residence generally derive citizenship when the alien parent(s) naturalizes before the
child attains 18 years of age. No application is required for children to obtain citizenship under these
provisions. Alternatively, under current section 322, a United States citizen parent may file an
application to naturalize a child who has not attained 18 years of age if the parent (or the parent's citizen
parent) has lived in the United States for a total of 5 years, at least 2 of those years after the age of 14.
Under this provision, children need not be admitted for lawful permanent residence in order to obtain
citizenship through naturalization.
This current dual scheme for foreign-bom children of United States citizens is further
complicated in the case of children adopted by two United States citizens. In these cases, the adoptive
parents do not have the convenience of automatically transferring citizenship to their child because
neither is eligible to naturalize. This is true even though, in most cases, the parents would have
transferred their citizenship to their children if they had given birth abroad. These parents must all file an
application to naturalize their children under section 322.
The Child Citizenship Act (the Act) attempts to untangle the complex and duplicative provisions
of the INA relating to the citizenship of children. The ACT creates a standard set of conditions for
foreign-born children of United States citizens to become citizens of the United States. Under the
standard, children under 18 years of age may become citizens of the United States if they have at least
one citizen parent and they live in the legal and physical custody of the citizen parent. In order for these
children to become citizens, their citizen parent must have physically resided in the United States for at
least 5 years, 2 of which must have been after attaining 14 years of age.
The Act provides for automatic acquisition of citizenship for children who have been admitted
for lawful permanent residence and who fulfill the conditions before attaining 18 years of age. The
parents of these children are not required to file an application with INS in order to become citizens.
However, parents have the option of applying to the Immigration and Naturalization Service for a
certificate of citizenship or the United States Passport Agency for a passport on behalf of their children in
order to document citizenship. Children who have been admitted for lawful permanent residence but
who are unable to fulfill the conditions before attaining 18 years of age are still able to apply for
naturalization on their own behalf under the normal requirements.
The same requirements apply to children who reside abroad: children under the age of eighteen
may become citizens of the United States if they have at least one United States citizen parent and they
reside in the legal and physical custody of the citizen parent. However, if these children come to the
United States as nonimmigrants they are required to file an application to obtain citizenship, while
children admitted for lawful permanent residence automatically derive citizenship without any
documentation requirements.
The parents of children who reside abroad and who fulfill the conditions must apply to INS for
naturalization. In order to be naturalized, children residing abroad must complete the naturalization
process before attaining 18 years of age. The Immigration and Naturalization Service will issue these
children a certificate of naturalization. If parents fail to apply for naturalization of these children before
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the children attain 18 years of age, they will no longer be eligible for naturalization based on the United
States citizenship of the parent or grandparent. However, after the child attains 18 years of age, parents
may still petition for the child to become an alien lawfully admitted for permanent residence, and then
the children may apply for naturalization on their own behalf under the normal requirements.
This Act eliminates inequities among current provisions of the Immigration and Nationality Act.
relating to acquisition and derivation of citizenship by children. It also eliminates necessity for the
Immigration and Naturalization Service to adjudicate applications for naturalization for children to
become citizens of the United States after being admitted for lawful permanent residence.
This Act provides for fair treatment of biological children and adopted children in becoming
United States citizens. Adopted children must satisfy the requirements for being an "orphan" or an"
adopted child" under sections 101(b)(1)(E) or (F) of the Immigration and Nationality Act to qualify for
citizenship under these provisions.
5
MEMORANDUM
Date:
June 30, 1999
To:
Irene Bueno
White House Domestic Policy Council
From:
INS Office of General Counsel (POC Ramona McGee, 514-7965)
Re:
Informal Comments on "Adopted Orphans Citizenship Act"
Thank you for the opportunity to provide our "informal views" on Senator Nickles'
proposed legislation for adopted children. We fully support legislation that will address the
current inequities in acquisition of citizenship by biological and adopted children. We also
support legislation that will eliminate many of the additional documentary steps required for
certain biological and adopted children to receive citizenship. While we applaud Senator
Nickles' efforts to address these issues, we are concerned that the proposed legislation, as
drafted, perpetuates inequities that exist in current law for both adopted and biological children.
Below are some of our comments on the proposed legislation and accompanying explanation.
I.
Comments on Explanation
(a)
Paragraph 1 - Current Law
First, we note that the current requirements for citizenship for adopted children are more
complex than as stated by Senator Nickles in the explanation. Under the Immigration and
Nationality Act (INA), there are three ways a foreign-born child can obtain citizenship: (1)
automatically upon fulfillment of conditions prior to birth; (2) automatically upon fulfillment of
conditions after birth; and (3) on application. Certain adopted children, like biological children,
may acquire citizenship automatically, depending on the citizenship status of their adoptive
parents. For example, under sections 320 and 321 of the INA, an adopted child of a United
States citizen parent and alien spouse or of two alien parents, will acquire citizenship
automatically when the alien parent(s) naturalizes while the child is under 18 and the child is
residing in the United States as a lawful permanent resident. No application is required for such
children to obtain citizenship under these provisions. Alternatively, certain adopted and
biological children can receive citizenship only by application. For example, under current
section 322, a United States citizen parent who did not have the requisite residence prior to the
child's birth or does not have an alien spouse who is naturalizing, must apply for an adopted or
biological child to be naturalized. If the United States citizen parent (or the citizen parent's
United States citizen parent) lived in the United States for a total of 5 years, at least 2 of those
years after the age of 14, the child must be under 18 but need not be a lawful permanent resident.
If neither the United States citizen parent nor the parent of the United States citizen parent has
lived in the United States for 5 years, 2 after the age of 14, then the child must be under 18 and a
lawful permanent resident. The child becomes a citizen upon approval of the application and
taking of the oath of allegiance.
Second, we would like to point out that United States citizen parents of biological
children are affected equally by the difficulties and frustrations currently associated with the
section 322 application process. While Senator Nickles' legislation will allow some adoptive
children to acquire citizenship automatically, it does not address or eliminate the problems that
adopted children who cannot acquire citizenship under his legislation will continue to face under
the current section 322 application process.
Third, we are uncertain about what Senator Nickles means by the statement that an
adopted child is "forever a 'naturalized' citizen, thereby not able to benefit from the same rights
and privileges that a 'natural born' child receives." Naturalized citizens do enjoy the same rights
and privileges as individuals who acquire citizenship at birth, without distinction. A person is
considered a naturalized citizen when such citizenship is conferred on him or her after birth. See
INA 101(a)(23). Many biological and adopted children who acquire citizenship under the INA
are "naturalized" citizens. We can only conclude that Senator Nickles, by referring to the term
"natural born," is alluding to the constitutional requirement that the President must be a "natural
born" citizen. The question of who is considered a "natural born" citizen for purposes of Article
II of the Constitution has not been definitively resolved by the Supreme Court and is not resolved
by this proposed legislation. Further, the INA only defines the requirements for attaining
citizenship at birth or through naturalization and does not address who is a "natural-born" citizen
for purposes of Article II.
(b)
Paragraph 2 - Proposed Legislation
First, while we note that Senator Nickles' proposed legislation provides for automatic
acquisition of citizenship by adopted children, we have a concern about the placement of this
amendment in section 301 of INA. Section 301 defines who shall be deemed a citizen of the
United States and/or national at birth. In all instances, except perhaps for section 301(f),
individuals who acquire United States citizenship at birth, acquire such citizenship because all the
requirements for acquisition of citizenship were completed prior to birth. Senator Nickles'
legislation creates a legal fiction by allowing for acquisition of citizenship retroactive to at birth
based on conditions fulfilled at anytime after birth until age 16. As noted earlier, the INA defines
naturalization as citizenship acquired, by any means whatsoever, after birth. The placement of
this legislative amendment under section 301 permits adopted children who are not citizens at
birth to become citizens at birth retroactively upon fulfillment of conditions. Enacting this
amendment would fundamentally alter the longstanding concept of citizenship at birth and would
require a change in the definition of naturalization.
Second, the proposed amendment raises international law concerns regarding the
retroactive application of citizenship at birth to foreign nationals. Some foreign countries may
express concern regarding the retroactive application of United States laws that affect the status
of individuals who were citizens of their countries at the time of birth. Further, retroactive
application may deprive certain adoptees of rights they accrued under the laws of their country of
origin.
Third, as noted earlier, we believe that Senator Nickles' legislation perpetuates inequities
that exist in current law for both biological and adopted children. In addition, when viewed in the
context of current law, Senator Nickles' legislation appears to favor adopted children over certain
biological children, in that certain adopted children will receive the benefit of citizenship at birth,
while biological children, potentially of the same United States citizen parents would not. The
Section 301(f) is the foundling provision, which creates a presumption that a young child, found in the
United States with unknown parentage, was born in the United States.
best way to illustrate the inequity is by example. If two United States citizen parents, neither of
whom has resided in the United States, bore a biological child abroad, under current law that
child would not be a United States citizen at birth. The parents would have to immigrate the child
to the United States and apply for naturalization before the child could become a United States
citizen. Further, that child would not be a United States citizen at birth but only from the date of
naturalization. Suppose that this same couple, after the birth of the biological child, takes up
residence in the United States for 5 years and then adopts a child. Under Senator Nickles'
legislation, the adopted child would become a United States citizen at birth upon attaining lawful
permanent residence while under 18 years of age. The biological child of the couple could never
be a citizen at birth, because there is no provision allowing biological children to acquire
citizenship at birth based on conditions fulfilled after birth.
(c)
Paragraph 3 - Reason for Change
We agree with the need for legislative change that addresses internationally adopted
children as well as related problems such as adopted children who have been long-time residents
of the United States and are currently in removal proceedings. We believe that alternate
legislation, addressing the inequities and providing for automatic acquisition of citizenship for
biological and adopted children equally, is more appropriate.
Recently, we have worked closely with the Department of State and have drafted
alternate legislative proposals, which we believe will adequately address the issues raised above.
Attached for your review is a draft version of proposed legislation which is currently circulating
for internal clearance within INS. Also attached are comparative charts that illustrate the current
laws affecting acquisition by adopted and biological children and our proposed alternative.
II.
Comments on Proposed Legislation
As for the actual language of Senator Nickles' legislation, we believe that there are some
issues that remain, such as:
(1)
what the custody requirements are for the adopted child;
(2)
whether or not the child is actually admitted pursuant to section 101(b)(1)(E) or (F);
(3)
how the legislation will affect adopted children in removal proceedings;
(4)
how the legislation will affect adopted children who are already citizens; and
(5)
what effect this legislation will have on derivative rights of biological parents.
SECTION 1. SHORT TITLE
This Act may be cited as the "Child Citizenship Act of 1999".
SEC 2.
Section 320 of the Immigration and Nationality Act (8 U.S.C. 1431) is amended to read as
follows:
"320 CHILDREN BORN OUTSIDE OF UNITED STATES;
CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED
"Sec. 320.
(a)
A child born outside of the United States automatically becomes a citizen of the United States on
the date when all of the following conditions are fulfilled--
(1)
at least one parent is a citizen of the United States, whether by birth or naturalization;
(2)
the United States citizen parent--
(A)
has been physically present in the United States or its outlying possessions for a
period or periods totaling not less than five years, at least two of which
were after attaining the age of fourteen years; or
(B)
has a citizen parent who has been physically present in the United States or its
outlying possessions for a period or periods totaling not less than five
years, at least two of which were after attaining the age of fourteen
years;
(3)
the child is under the age of eighteen years; and
(4)
the child is residing in the United States in the legal and physical custody of the citizen
parent pursuant to a lawful admission for permanent residence.
(b)
Subsection (a) of this section shall apply to an adopted child only if the child satisfies the
requirements for being a child under subparagraph (E) or (F) of section 101(b)(1) of this
Act or any other provision subsequently enacted relating to adopted children under
section 101(b)(1) of this Act."
SEC. 3
Section 322 of the Immigration and Nationality Act (8 U.S.C. 1433) is amended to read as
follows:
"322 CHILD BORN AND RESIDINGOUTSIDE OF UNITED STATES;
CONDITIONS FOR ACQUIRING CERTIFICATE OF NATURALIZATION
"Sec. 322.
(a)
A parent who is a citizen of the United States may apply for naturalization on behalf of a
child born outside of the United States. The Attorney General shall issue a
certificate of naturalization to such parent upon proof, to the satisfaction of the
Attorney General, that the following conditions have been fulfilled--
(1)
at least one parent is a citizen of the United States, whether by birth or
naturalization;
(2)
the United States citizen parent--
(A)
has been physically present in the United States or its outlying
possessions for a period or periods totaling not less than five
years, at least two of which were after attaining the age of
fourteen years; or
(B)
has a citizen parent who has been physically present in the United States
or its outlying possessions for a period or periods totaling not
less than five years, at least two of which were after attaining the
age of fourteen years;
(C)
the child is under the age of eighteen years; and
(D)
the child is residing outside of the United States in the legal and physical
custody of the citizen parent, and is temporarily present in the
United States pursuant to a lawful admission and is maintaining
such lawful status.
(b)
Upon approval of such application (which may be filed from abroad) and, except as
provided in the last sentence of section 337(a), upon taking and subscribing
before an officer of the Service within the United States to the oath of allegiance
required by this Act of an applicant for naturalization, the child shall become a
citizen of the United States and shall be furnished by the Attorney General with a
certificate of naturalization.
(c)
Subsections (a) and (b) of this section shall apply to an adopted child only if the child
satisfies the requirements for being a child under subparagraph (E) or (F) of
section 101(b)(1) of this Act or any other provision subsequently enacted relating
to adopted children under section 101(b)(1) of this Act."
SEC. 4 CONFORMING AMENDMENTS
Section 321 of the Immigration and Nationality Act (8 U.S.C. 1432) is repealed and reserved.
SEC. 5 EFFECTIVE DATE
(a)
IN GENERAL--The amendments made by this Act shall take effect 120 days after
enactment of this Act.
(b)
RETROACTIVE APPLICATION.-- upon the effective date of this Act, a person has
attained the age of eighteen, and, while under the age of eighteen otherwise met
the requirements of section 320 as amended by this Act prior to the effective
date, such person may apply to the Attorney General for a certificate of
naturalization. Upon taking and subscribing before an officer of the Service
within the United States to the oath of allegiance required by the Immigration
and Nationality Act, the person shall become a citizen of the United States and
shall be furnished by the Attorney General with a certificate of naturalization.
Explanation of Changes
Under current sections 320, 321, and 322, there are two methods for foreign-born children to
obtain United States citizenship from their citizen parents. Under sections 320 and 321, children admitted
for lawful permanent residence generally derive citizenship when the alien parent(s) naturalizes before
the child attains 18 years of age. No application is required for children to obtain citizenship under these
provisions. Alternatively, under current section 322, a United States citizen parent may file an
application to naturalize a child who has not attained 18 years of age if the parent (or the parent's citizen
parent) has lived in the United States for a total of 5 years, at least 2 of those years after the age of 14.
Under this provision, children need not be admitted for lawful permanent residence in order to obtain
citizenship through naturalization.
This current dual scheme for foreign-born children of United States citizens is further
complicated in the case of children adopted by two United States citizens. In these cases, the adoptive
parents do not have the convenience of automatically transferring citizenship to their child because
neither is eligible to naturalize. This is true even though, in most cases, the parents would have
transferred their citizenship to their children if they had given birth abroad. These parents must all file an
application to naturalize their children under section 322.
The Child Citizenship Act (the Act) attempts to untangle the complex and duplicative provisions
of the INA relating to the citizenship of children. The Act creates a standard set of conditions for foreign-
born children of United States citizens to become citizens of the United States. Under the standard,
children under 18 years of age may become citizens of the United States if they have at least one citizen
parent and they live in the legal and physical custody of the citizen parent. In order for these children to
become citizens, their citizen parent must have physically resided in the United States for at least 5 years,
2 of which must have been after attaining 14 years of age.
The Act provides for automatic acquisition of citizenship for children who have been admitted
for lawful permanent residence and who fulfill the conditions before attaining 18 years of age. The
parents of these children are not required to file an application with INS in order to become citizens.
However, parents have the option of applying to the Immigration and Naturalization Service for a
certificate of citizenship or the United States Passport Agency for a passport on behalf of their children in
order to document citizenship. Children who have been admitted for lawful permanent residence but who
are unable to fulfill the conditions before attaining 18 years of age are still able to apply for naturalization
on their own behalf under the normal requirements.
The same requirements apply to children who reside abroad: children under the age of eighteen
may become citizens of the United States if they have at least one United States citizen parent and they
reside in the legal and physical custody of the citizen parent. However, if these children come to the
United States as nonimmigrants they are required to file an application to obtain citizenship, while
children admitted for lawful permanent residence automatically derive citizenship without any
documentation requirements.
The parents of children who reside abroad and who fulfill the conditions must apply to INS for
naturalization. In order to be naturalized, children residing abroad must complete the naturalization
process before attaining 18 years of age. The Immigration and Naturalization Service will issue these
children a certificate of naturalization. If parents fail to apply for naturalization of these children before
the children attain 18 years of age, they will no longer be eligible for naturalization based on the United
States citizenship of the parent or grandparent. However, after the child attains 18 years of age, parents
may still petition for the child to become an alien lawfully admitted for permanent residence, and then the
children may apply for naturalization on their own behalf under the normal requirements.
This Act eliminates inequities among current provisions of the Immigration and Nationality Act
relating to acquisition and derivation of citizenship by children. It also eliminates necessity for the
Immigration and Naturalization Service to adjudicate applications for naturalization for children to
become citizens of the United States after being admitted for lawful permanent residence.
This Act provides for fair treatment of biological children and adopted children in becoming
United States citizens. Adopted children must satisfy the requirements for being an "orphan" or an"
adopted child" under sections 101(b)(1)(E) or (F) of the Immigration and Nationality Act to qualify for
citizenship under these provisions.
ADOPTION LEGISLATION COMPARISON CHARTS
--DRAFT 6/23/99--
NATURAL
ADOPTED
INS VERSION
2 United States
1 United States
2 Aliens
2 United States
1 United States
2 Aliens
Citizens
Citizen & 1 Alien
Citizens
Citizen & 1 Alien
Sec. 301 - Automatic at
Same As Current
Same As Current Law
Same As Current
Same As Current
Same As Current Law
Same As Current
Birth
Law
Law
Law
Law
Sec. 320 - Automatic on
1 USC has 5/2 yrs
Same As Block to Left
Same As Block
1 USC has 5/2 yrs
Same As Block to Left
Same As Block to
Conditions
After Birth (or
to Left if 1 Alien
before or After
Left if 1 Alien
USC parent of
Natzs
Adoption (or USC
Natzs
USC has 5/2 yrs);
parent of USC has
Child Under 18;
5/2 yrs); Child
Child in Legal and
Under 18; Child in
Physical Custody;
Legal and Physical
Child LPR
Custody; Child
Meets 101(b)(1)(E)
or (F); Child LPR
Sec. 322 - Application
1 USC has 5/2 yrs
Same As Block to Left
Same As Block
1 USC has 5/2 yrs
Same As Block to Left
Same As Block to
After (or USC
to Left if 1 Alien
Before or After (or
Left if 1 Alien
parent of USC has
Natzs
USC parent of USC
Natzs
5/2 yrs); Child
has 5/2 yrs); Child
Under 18; Child in
Under 18; Child in
Legal and
Legal and Physical
Physical Custody;
Custody; Child
Child Temporarily
Meets 101(b)(1)(E)
in US Pursuant to
or (F); Child
Lawful Admission
Temporarily in US
Pursuant to Lawful
Admission
ADOPTION LEGISLATION COMPARISON CHARTS
--DRAFT 6/23/99--
NATURAL
ADOPTED
DOS VERSION
2 United States
1 United States
2 Aliens
2 United States
1 United States
2 Aliens
Citizens
Citizen & 1 Alien
Citizens
Citizen & 1 Alien
Sec. 301 - Automatic at
Same As Current
Same As Current Law
Same As Current
Same As Current
Same As Current Law
Same As Current
Birth
Law
Law
Law
Law
Sec. 320 - Automatic on
Same As Current
Same As Current Law
Same As Current
Same As Current
Same As Current Law
Same As Current
Conditions
Law
Law
Law
Law
Sec. 321 - Automatic on
Same As Current
Same As Current Law
Same As Current
Same As Current
Same As Current Law
Same As Current
Conditions
Law
Law
Law
Law
Sec. 322 - Application
Same As Current
Same As Current Law
Same As Current
Same As Current
Same As Current Law
Same As Current
Law
Law
Law
Law
Sec. 323 - Automatic on
N/A
N/A
N/A
At least 1 USC has
At least 1 USC has 5/2
At Least 1 Alien
Conditions
5/2 yrs Prior to
yrs Prior to Adoption;
Natzs Prior to
Adoption; Child
Child Meets
Adoption and Has
Meets 101(b)(1)(E)
101(b)(1)(E) or (F);
5/2 Prior to
or (F); Child LPR;
Child LPR; All
Adoption; Child
All Conditions Met
Conditions Met Before
Meets 101(b)(1)
Before 18
18
(E) or (F); Child
LPR; All
Conditions Met
Before 18
ADOPTION LEGISLATION COMPARISON CHARTS
--DRAFT 6/23/99--
NATURAL
ADOPTED
CURRENT LAW
2 United States
1 United States
2 Aliens
2 United States
1 United States
2 Aliens
Citizens
Citizen & 1 Alien
Citizens
Citizen & 1 Alien
Sec. 301 - Automatic at
Either USC has
USC has 5/2 yrs Prior
N/A
N/A
N/A
N/A
Birth
Residence Prior to
to Birth
Birth
Sec. 320 - Automatic on
N/A
Alien Spouse Natzs;
N/A
N/A
Alien Spouse Natzs;
N/A
Conditions
Child LPR; All
Child LPR, in Custody
Conditions Met Before
of Adoptive Parent &
18
in US at time of Alien
Spouse Natz
Sec. 321 - Automatic on
N/A
N/A
Natz of Aliens
N/A
N/A
Natz of Aliens (or
Conditions
(or Alien, if
Alien, if Divorce/
Divorce/ Out of
Out of Wedlock &
Wedlock & Legal
Legal Custody), in
Custody;
Custody of
Child LPR; All
Adoptive Parent &
Conditions Met
in US at time of
Before 18
Alien(s) Natz;
Child LPR; All
Conditions Met
Before 18
Sec. 322 - Application
USC has 5/2 yrs
Same As Block to Left
Same As Block
USC (birth or
Same As Block to Left
Same As Block to
After Birth of
to Left if 1 Alien
natz'd) has 5/2 yrs
Left if 1 Alien
Child and Prior to
Natzs
before or After
Natzs
Application (or
Adoption (or USC
USC parent of
parent of USC has
USC has 5/2 yrs,
5/2 yrs, if Child
if Child Not LPR);
Not LPR); Child in
Child in US
US Lawful
Lawful Admission
Admission & Legal
& Legal Custody
Custody of USC;
of USC; Child
Child meets
Under 18
101(b)(1)(E) or (F);
Child Under 18
http://thomas.loc.gov/cgi-bin/query/D?c106:4:./temp/-c1062eOxs:
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Adopted Orphans Citizenship Act (Referred in House)
S 1485 RFH
106th CONGRESS
1st Session
S. 1485
IN THE HOUSE OF REPRESENTATIVES
October 27, 1999
Referred to the Committee on the Judiciary
AN ACT
To amend the Immigration and Nationality Act to confer United States citizenship automatically and
retroactively on certain foreign-born children adopted by citizens of the United States.
Be it enacted by the Senate and House of Representatives of the United States of America in
Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the 'Adopted Orphans Citizenship Act'.
SEC. 2. ACQUISITION OF UNITED STATES CITIZENSHIP BY CERTAIN
ADOPTED CHILDREN.
(a) AMENDMENTS TO THE IMMIGRATION AND NATIONALITY ACT- Section 301 of the
Immigration and Nationality Act (8 U.S.C. 1401) is amended--
(1) by striking `and' at the end of subsection (g);
(2) by striking the period at the end of subsection (h) and inserting ; and'; and
(3) by adding at the end the following:
1 of 2
10/28/1999 3:01 PM
http://thomas.loc.gov/cgi-bin/query/D?c106:4:./temp/~c1062eOxso.
`(i) an unmarried person, under the age of 18 years, born outside the United States and its
outlying possessions and thereafter adopted by at least one parent who is a citizen of the
United States and who has been physically present in the United States or one of its outlying
possessions for a period or periods totaling not less than 5 years prior to the adoption of the
person, at least 2 of which were after attaining the age of 14 years, if--
'(1) the person is physically present in the United States with the citizen parent,
having attained the status of an alien lawfully admitted for permanent residence;
'(2) the person satisfied the requirements in subparagraph (E) or (F) of section
101(b)(1); and
'(3) the person seeks documentation as a United States citizen while under the age of
18 years.'.
(b) EFFECTIVE DATE- The amendments made by subsection (a) shall apply with respect to
persons adopted before, on, or after the date of enactment of this Act.
Passed the Senate October 26, 1999.
Attest:
GARY SISCO,
Secretary.
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10/28/1999 3:01 PM
Bill Summary & Status
http://thomas.loc.gov/cgi-bin/bdquery/z?d106:SN01485:@@@X
Bill Summary & Status for the 106th Congress
NEW SEARCH I HOME I HELP I ABOUT STATUS
S.1485
SPONSOR: Sen Nickles, Don (introduced 08/04/99)
RELATED BILLS: H.R.2883
STATUS: Detailed Legislative Status
Senate Actions
Aug 4, 99:
Read twice and referred to the Committee on Judiciary.
Oct 21, 99:
Committee on Judiciary. Ordered to be reported without amendment favorably.
Oct 21, 99:
Committee on Judiciary. Reported to Senate by Senator Hatch without amendment. Without
written report.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 337.
Oct 26, 99:
Passed Senate without amendment by Unanimous Consent.
Oct 27, 99:
Message on Senate action sent to the House.
House Actions
Oct 27, 99:
Referred to the House Committee on the Judiciary.
1 of 1
10/28/1999 3:01 PM
Irene Bueno
07/02/99 05:59:36 PM
Record Type:
Record
To:
Nicole R. Rabner/WHO/EOP@EOP
CC:
bcc:
Irene Bueno/OPD/EOP
Subject: Re: Sen Nickles bill on adoption
I have reviewed the INS comments. While they are very supportive of the legislation, they have some
concerns about the Nickles' approach. Current citizenship requirements for adopted children are more
complicated and the INS believes that the Nickles' approach could result in biologicial children being
worse off than adopted children. Also, retroactive citizenship is a concept that causes concerns from an
immigration and international law perspective
INS has been working with State Dept. on some proposed alternative language that would address the
inequities and provide for a more automatic acquitision of citizenship for biological and adopted children
equally. This is a proposal that they had been working on with INS and the State Dept.
Do you think Nickles is willing to change his proposal if it achieves the same goals but avoids some of the
pitfalls? If they are open, perhaps we could schedule a meeting with INS and Nickles staff to discuss
some of these issues but let me know what you think.
INS also has some additional technical immigration questions about the Nickles proposal that I am sure
Nickles probably has not considered but I will discuss with INS about this questions and ask for their
suggestions.
Please let me know. I can fax you the comments if you would like.
Thanks.
Nicole R. Rabner
Nicole R. Rabner
06/28/99 04:22:11 PM
Record Type:
Record
To:
Irene Bueno/OPD/EOP@EOP
CC:
Subject: Re: Sen Nickles bill on adoption
I've faxed to you the draft leg language. Thanks for your help.
06/28/99 15:16 FAX
NATL ECONOMIC COUNCIL
700
JUN 28 '99 15:11 FR SENATOR ROCKEFELLER 202 244 7665 TO 94562878
P.02/03
O:\RYN\RYN99.566
S.L.C.
106TH CONGRESS
1ST SESSION
S.
IN THE SENATE OF THE UNITED STATES
Mr. NICKLES (for himself, Ms. LANDRIEU, and Mr. GRASSLEY) introduced the
following bill; which was read twice and referred to the Committee on
A BILL
To amend the Immigration and Nationality Act to confer
United States citizenship automatically and retroactively
on certain foreign-born children adopted by citizens of
the United States.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4
This Act may be cited as the "Adopted Orphans Citi-
5 zenship Act".
06/28/99 15:16 FAX
NATL ECONOMIC COUNCIL
003
SENHIUR KUCKEFELLER 202 244 7665 TO 94562878
P.01/01
O:\RYN\RYN99.566
S.L.C.
2
1 SEC. 2. ACQUISITION OF UNITED STATES CITIZENSHIP BY
2
CERTAIN ADOPTED CHILDREN.
3
(a) AMENDMENTS TO THE IMMIGRATION AND NA-
4 TIONALITY ACT.-Section 301 of the Immigration and
5 Nationality Act (8 U.S.C. 1401) is amended—
6
(1) by striking "and" at the end of subsection
7
(g);
8
(2) by striking the period at the end of sub-
9
section (h) and inserting "; and"; and
10
(3) by adding at the end the following:
11
"(i) an unmarried person, under the age of 18
12
years, born outside the United States and its outly-
13
ing possessions and thereafter adopted by at least
14
one parent who is a citizen of the United States and
15
who has been physically present in the United States
16
or one of its outlying possessions for a period or pe-
17
riods totaling not less than 5 years prior to the
18
adoption of the person, at least 2 of which were
19
after attaining the age of 14 years, if-
20
"(1) the person is physically present in the
21
United States with the citizen parent, having
22
attained the status of an alien lawfully admitted
23
for permanent residence;
24
"(2) the person satisfied the requirements
25
in subparagraph (E) or (F) of section
26
101(b)(1); and
** TOTAL PAGE.01 **
06/28/99 15:16 FAX
NATL ECONOMIC COUNCIL
JUN 28 'yy 15:11 FR SENATOR ROCKEFELLER 202 244 7665 TO 94562878
P.03/03
S.L.C.
3
1
"(3) the person seeks documentation as a
2
United States citizen while under the age of 18
3
years.".
4
(b) EFFECTIVE DATE.-The amendments made by
5 subsection (a) shall apply with respect to persons adopted
6 before, on, or after the date of enactment of this Act.
** TOTAL PAGE. 03 **
Nicole R. Rabner
06/28/99 12:02:34 PM
Record Type:
Record
To:
Irene Bueno/OPD/EOP@EOP
CC:
Subject: Sen Nickles bill on adoption
Attached below is a summary of the adoption bill about foreign adoptions that I mentioned this morning.
Let me know what you think.
Forwarded by Nicole R. Rabner/WHO/EOP on 06/28/99 12:01 PM
[email protected]. (Sue Badeau)
06/28/99 09:34:40 AM
Record Type:
Record
To:
Nicole R. Rabner/WHO/EOP
CC:
Subject: Sen Nickles bill on adoption
Nicole, Barbara asked me to send this to you - if you cannot open the
attachment or need me to fax it, please let me know. Thanks - Sue
Badeau
- nickles3.
MEMO
To: Nicole Rabner, Office of the First Lady
From: Sue Badeau, Office of Senator Rockefeller
RE: Senator Nickles' "Adopted Orphans Citizenship Act"
Date: June 28, 1999
"Adopted Orphans Citizenship Act"
Senator Nickles is proposing a bill entitled the "Adopted Orphans Citizenship Act"
which is designed to simplify the process by which internationally adopted children become
U.S. citizens. The bill is currently co-sponsored by Senators Grassley and Landrieu,
Ashcroft, Bond, Brownback, Chafee, Craig, DeWine, Edwards, and G. Smith.
Current Law
Under current law, U.S. adoptive parents of a child born outside of the United
States may apply for naturalization of their child. This process is lengthy, costly and at
times frustrating for adoptive parents. And, the final result is that their child is forever a "
naturalized" citizen, thereby not able to benefit from the same rights and privileges that a "
natural-born" child would receive. It also exposes legally adopted children to the risk of
deportation at a later date if circumstances occur prior to their naturalization.
Proposed Legislation
The Nickles proposed legislation allows foreign-born children who are legally
adopted by United States citizens to receive automatic U.S. citizenship, in much the same
manner as children born to U.S. citizens residing outside of the country are also conferred
automatic citizenship with appropriate documentation. The citizenship would be retroactive
to the date of the child's birth.
Adopted children would have to travel to the United States and reside with their
adoptive family prior to receiving this citizenship status. This protects the United States
from being responsible for children of disrupted adoptions that disrupted prior to the child
entering the U.S.
Reason for Change
This bill provides for equal treatment of natural-born and adopted children whose
parents are U.S. citizens. In all other respects, under the laws of this Nation, an adopted
child is conferred the same rights, duties and other legal privileges and responsibilities as a
child born to his parents. By both tradition and law, our country has long treated adopted
children the same as children related by blood. This law creates a "level playing field" for
natural-born and adopted children as it relates to citizenship. This is particularly important
for internationally adopted children with special needs. Under current law, until the
naturalization process is completed, the child is not entitled to benefits in the United States
such as medical coverage or SSI.
Recommendation
This proposed legislation is long over-due. It is good policy and it does not cost
anything to implement. In addition to the benefits of the legislation itself, it would be
useful to join Senator Nickles, Grassley and Landrieu and the other co-sponsors of this
bill, since we want to work with them on other child welfare efforts.
Bill Summary & Status
http://thomas.loc.gov/cgi-bin/bdquery/z?d106:s.00682.
Bill Summary & Status for the 106th Congress
NEW SEARCH I HOME I HELP
S.682
SPONSOR: Sen Helms, Jesse (introduced 03/23/99)
A bill to implement the Hague Convention on Protection of Children and Co-operation in Respect of
Intercounty Adoption, and for other purposes.
All Bill Summary & Status Info (except Bill Text)
Titles
Status:
Detailed Legislative Status
Floor/Executive Actions
Congressional Record Page References
Committees:
Referral, Reporting, Origin, Subcommittees
Other Committee Information
Amendments
Subjects
Cosponsors (1)
Summary
Text of Legislation
1 of 1
6/28/99 1:38 PM