EmilyGP

For my adopted son's US citizenship, I need to prove that I (USC parent) have had "legal and physical custody" for at least 2 years. (We live overseas and are planning to do N600-k... you can see that thread for more details if interested).

In June 2017 we were granted "custody and tenure" by a local "family commisary" (which handles family and child protection in small towns... our case was later transferred to the ICBF: Colombian Institue of Family Wellbeing, which is the Colombian equivalent of Child Protective Services. The family commisary reports to ICBF.) "Custody and tenure" means he lived with us, and we were responsible for paying for school, healthcare, everything... For the first year, his biological mom was supposed to give a minimal monthly "child support" but never gave anything... part of the evidence that eventually led to her parental rights being terminated.
In February 2019 a family court judge declared him adoptable (terminated parental rights) and ratified the custody and tenure (family judges are the maximum authority... even above ICBF). We were never declared "legal representatives" (aka legal guardians) during the 3+ years we had custody.
Our full and final adoption decree is from September 2020.

So, my question is: What constitutes "legal and physical custody" for USCIS? Do you think they will count the 3+ years of custody and tenure, since the "family commisary" granted it? Or should I wait to file in February, when the judge's confirmation of that custody and tenure reaches the 2-year mark (since family court is a higher authority)? Or will they only count the 2 years from the full and final adoption, onward?

NOTE: Our son is already 15 years old. If the custody years don't count, we might have to move to the US to insure that he qualifies for citizenship before he turns 18 (because it seems like the N600-k process can be very long, and we don't want to risk him aging out. If we have to wait 2 years from the adoption, he will be over 17 by the time we can apply... too close for comfort!)

If it would be helpful for further clarification, I can share some of the official (translated from Spanish) documents that I've mentioned here.

Thanks!
Emily

scrubbedexpat099

I would think there are not many familiar with Colombian family law practices on BE even less so in the US forum

EmilyGP

Of course not, Boiler. That's why I've taken the time to explain the essentials.
The question is, Who IS familiar enough with US law and USCIS, to understand their requirement of "legal and physical custody?"

Our case is all set in Colombia. What I need is to get my son's US citizenship paperwork sorted out. INA 322 outlines these requirements:

1. birth or naturalization;
2. The US citizen parent has (or, at the time of his death, had) been physically present in the U.S. or in its outlying possessions (OLP) for at least 5 years and that at least 2 of these 5 years occurred after his 14th birthday, or at the time of his death had a US citizen parent who had been physically present in the US or in its outlying possessions (OLP) for at least 5 years and that at least 2 of these 5 years occurred after his 14th birthday;
3. The child is under 18 year old;
4. The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application); and
5. The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.

Section 322 also applies to a child adopted by a US citizen parent if the child satisfies the legal requirements applicable to adopted children.

We meet all these requirements, but #4 is the stickler... because for adoptees it further states that the child must have resided at least 2 years in the legal and physical custody of the applicant (i.e. myself)
That is what this thread is about... determining how USCIS defines legal and physical custody.
Thank you.

Noorah101

You might need to ask an immigration lawyer.

Rene

EmilyGP

Thanks, Rene. I am working on that as well... but thought maybe someone out there could give some free advice!
Just trying to save money!!!

Emily

S Folinsky

When I was in practice, my “mavens” on citizenship issues were the father daughter team of Robert and Kathryn Mautino. You can’t go wrong in hiring her.

I use of Google, I found an obituary for Robert. His memory is truly blessed.