US Resident Minor son of a USC Father.

[ZeroHart]

I need some help on next steps for this.

I live in Texas since 2015 with my wife and My son, I am a US Citizen but my son is a US Permanent Resident. His mom lives abroad and he has lived with me most of his life. He is 12 years old now.

Since he lives with me I tried to get him a US Passport in order to make him a US Citizen. The lady at USPS told me his mom would have to be here, so she flew in, we signed everything. The Passport Office mail me back saying that I could not process his Passport due to me not having his full legal custody.

I know there is a way to get my son his US Citizenship through my Father (his Grandfather) that is a US Citizen.

So My Question is:

Will doing the paperwork to get him US Citizenship through my Dad work or will I hit the same walls I am hitting right now?
How can I get paperwork or how to do I apply to get my sons Sole Custody? Is that something I have to do here in Texas? or is it something I have to do in the country where he was born? Have to note that he was born out of wedlock. and I take care of him 100% since his mom does not give child support or anything.

Thanks in Advance

[ronmony]

Seems he is not your biologic son, and your wife is not a US Citizen, you need to ask USCIS about the law for stepson. But when he lives in US with you and his mother lives abroad, then who is his full legal custody in US?!
Maybe you need to go court with your wife and request a prof of his full legal custody for you due to your marriage.

Children of U.S. Citizens Residing in the United States
Children who were born outside the U.S. but now live in the U.S. may acquire citizenship under Section 320 of the Immigration and Nationality Act (INA). A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after Feb. 27, 2001:

• The child has at least one parent, including an adoptive parent, who is a U.S. citizen by birth or through naturalization;
• The child is under 18 years of age;
• The child is a lawful permanent resident (LPR); and
• The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.

https://www.uscis.gov/us-citizenship...hrough-parents

[newacct]

Seems he is not your biologic son, and your wife is not a US Citizen, you need to ask USCIS about the law for stepson. But when he lives in US with you and his mother lives abroad, then who is his full legal custody in US?!
Maybe you need to go court with your wife and request a prof of his full legal custody for you due to your marriage.

Children of U.S. Citizens Residing in the United States
Children who were born outside the U.S. but now live in the U.S. may acquire citizenship under Section 320 of the Immigration and Nationality Act (INA). A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after Feb. 27, 2001:

• The child has at least one parent, including an adoptive parent, who is a U.S. citizen by birth or through naturalization;
• The child is under 18 years of age;
• The child is a lawful permanent resident (LPR); and
• The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.

https://www.uscis.gov/us-citizenship...hrough-parents

It sounds like it is the OP's biological son, but since the son was born out of wedlock, it's difficult to meet the "legal and physical custody" requirement.

Stepsons do not derive citizenship under INA 320.

[ronmony]

If he is a biologic son and he live with his father in US as a Permanent Resident and nobody care his cost but his father then who has his full legal custody if his biologic father has not?! Even if he was an adopted stepson then automatically becomes a U.S. citizen when all of the above 4 conditions have been met. https://www.uscis.gov/us-citizenship...hrough-parents

@ZeroHart, seems you need to explain more about case, is there any legal father for your son except you? Is his mother a US citizen? How your son get lawful permanent resident?
Anyway if you are not his legal father, and his mother is not a US citizen, then you need to adopt him before 18 and after adoption he will be US citizen from your side and your father can not apply for him cause of same problem. I believe you can adopt him in Texas and no need to go to his birth country if his mother (and legal father) accept adoption or maybe you can ask a court in US to order an adoption for your biological son.

This is my personal opinion and is not to be construed as legal advice.

[newacct]

If he is a biologic son and he live with his father in US as a Permanent Resident and nobody care his cost but his father then who has his full legal custody if his biologic father has not?! Even if he was an adopted stepson then automatically becomes a U.S. citizen when all of the above 4 conditions have been met. https://www.uscis.gov/us-citizenship...hrough-parents

@ZeroHart, seems you need to explain more about case, is there any legal father for your son except you? Is his mother a US citizen? How your son get lawful permanent resident?
Anyway if you are not his legal father, and his mother is not a US citizen, then you need to adopt him before 18 and after adoption he will be US citizen from your side and your father can not apply for him cause of same problem. I believe you can adopt him in Texas and no need to go to his birth country if his mother (and legal father) accept adoption or maybe you can ask a court in US to order an adoption for your biological son.

This is my personal opinion and is not to be construed as legal advice.

See USCIS Policy Manual volume 12 part H chapter 4 section B or 8 FAM 301.10-2(A)(e)(3). Basically, they presume that the child is in the legal custody of the US citizen parent if 1) the parents are married to each other, 2) the other parent is deceased, 3) the parents are divorced or separated and the courts awarded custody to the US citizen parent, or 4) the child was born out of wedlock and legitimated by the US citizen parent. There is no case for children born out of wedlock who are not legitimated, whose parents never married. That doesn't necessarily mean it's impossible to prove legal custody, but it's unclear what needs to be done to prove it.

[ZeroHart]

Seems he is not your biologic son, and your wife is not a US Citizen, you need to ask USCIS about the law for stepson. But when he lives in US with you and his mother lives abroad, then who is his full legal custody in US?!
Maybe you need to go court with your wife and request a prof of his full legal custody for you due to your marriage.

Children of U.S. Citizens Residing in the United States
Children who were born outside the U.S. but now live in the U.S. may acquire citizenship under Section 320 of the Immigration and Nationality Act (INA). A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after Feb. 27, 2001:

• The child has at least one parent, including an adoptive parent, who is a U.S. citizen by birth or through naturalization;
• The child is under 18 years of age;
• The child is a lawful permanent resident (LPR); and
• The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.

https://www.uscis.gov/us-citizenship...hrough-parents

Ok So, he is my biological Son, he was born when I was 20 years old and I got married (not with his mom) 5 years ago. I am 33 now. I am a US Citizen.

[ZeroHart]

If he is a biologic son and he live with his father in US as a Permanent Resident and nobody care his cost but his father then who has his full legal custody if his biologic father has not?! Even if he was an adopted stepson then automatically becomes a U.S. citizen when all of the above 4 conditions have been met. https://www.uscis.gov/us-citizenship...hrough-parents

@ZeroHart, seems you need to explain more about case, is there any legal father for your son except you? Is his mother a US citizen? How your son get lawful permanent resident?
Anyway if you are not his legal father, and his mother is not a US citizen, then you need to adopt him before 18 and after adoption he will be US citizen from your side and your father can not apply for him cause of same problem. I believe you can adopt him in Texas and no need to go to his birth country if his mother (and legal father) accept adoption or maybe you can ask a court in US to order an adoption for your biological son.

This is my personal opinion and is not to be construed as legal advice.

Thanks for the response, ok let me see i I can answer all the questions.

He is my biological Son.
He is a Permanent Resident
Nobody else but me care for his costs
His Mother is not a US Citizen and she does not live in the US. She has come a couple of times to visit him.

[ZeroHart]

See USCIS Policy Manual volume 12 part H chapter 4 section B or 8 FAM 301.10-2(A)(e)(3). Basically, they presume that the child is in the legal custody of the US citizen parent if 1) the parents are married to each other, 2) the other parent is deceased, 3) the parents are divorced or separated and the courts awarded custody to the US citizen parent, or 4) the child was born out of wedlock and legitimated by the US citizen parent. There is no case for children born out of wedlock who are not legitimated, whose parents never married. That doesn't necessarily mean it's impossible to prove legal custody, but it's unclear what needs to be done to prove it.

I agree, it is super weird and hard to proof, His mom came to visit once and we went to the USPS office to get him a US passport. There she said she lived in another country. the Passport Office came back asking for information on how the mother died.

On Point 4)

4) the child was born out of wedlock and legitimated by the US citizen parent
He was born in Costa Rica, and he is my legitimated Son, He has my Last name and has lived with me since then. the only difference is that he lived with me in Costa Rica, then I moved here. In costa rica in order for a child to leave the country has to travel with both parents or the parents have to sign something stating they can leave the country with the other parent. on that note I am the only person he can travel with.


Thanks for all the responses on this,I am for sure learning a lot on the immigration system.

[newacct]

The issue isn't his permission to travel with you; it's his citizenship. They're saying that he may not have gotten US citizenship from you. So his mother giving her permission won't help. Perhaps if you can get a court order giving you sole custody that would be enough for him to derive citizenship from you; I don't know.

[ronmony]

I am wonder how you got a US Permanent Resident for your son in this case, maybe you could get his citizenship instead of permanent resident at that time.
Now you need to use below option in https://www.uscis.gov/policy-manual/...-chapter-4#S-B :
(B. Legal and Physical Custody of U.S. Citizen Parent) (A biological child born out of wedlock who has been legitimated and currently resides with the parent
I believe you just need time to follow the way to get his citizenship by law. For fast process maybe better to use expert immigration attorney.

_________________________________________________________
This is my personal opinion and is not to be construed as legal advice.

[ZeroHart]

Thank you all so much, I have to start from scratch again since the passport agency did ask for originals, now I have to fly to Costa Rica, get originals for everything and then fly back and do it all again.