SRW Successful In Obtaining U.S. Passport After Satisfying Strict Requirements of INA §309(a)(3)

May 24th, 2016 by SRW Lawyers

A U.S. Citizen father approached us a few months ago after having his 18 year old biological son’s U.S. passport application denied by a U.S. Consulate overseas under INA §309 [Children Born out of Wedlock].   While the Consulate found most of the statutory requirements had been satisfied (DNA results confirming a biological relationship, proof of U.S. citizen father’s U.S. citizenship at the time of the child’s birth, proof that the U.S. citizen father fulfilled the requisite physical presence in the U.S. prior to the child’s birth), they found that the statutory requirement under INA §309(a)(3) had not been satisfied.   INA §309(a)(3) requires that the U.S. citizen father agrees, in writing, to support the child until the child reaches the age of 18.  It does not matter whether or not the support was actually provided – the requirement is that there be an agreement in writing prior to the child turning 18.

 

As background, this U.S. citizen father had spent several years abroad and during that time, had a child born out of wedlock with a foreign national.  While intimately involved with the child in the first year or so of life, the father was estranged from the child due to reasons beyond his control when the father returned to the U.S.  While estranged from his son, the father nonetheless obtained a life insurance policy for the child’s benefit and continued to hold out hope of reconciliation once the child became an adult.  Fast forward 13 years later and the father and son are able to reconnect.  They slowly started corresponding, visited each other and re-establishing their bond.  The father assisted in paying for the son’s tuition, had him fly to the U.S. to visit him and introduced his friends and family to his son, etc.

 

When the Consulate initially denied the application under INA §309(a)(3), the U.S. citizen father submitted additional proof of the financial support he had been providing for the last few years and explained the estrangement.  Ultimately, the Consulate denied the application claiming that he failed to satisfy the statutory requirement.  The U.S. citizen father then consulted our office to review his options.

 

Upon reviewing the background and the documentation available, we understood that there was not one perfect document that could help establish that the U.S. citizen father had met this requirement.  However, based on case law and guidance, and our own experience on a similar issue, we advised the U.S. citizen father to ask the Consulate to reconsider the denial.  We would submit a detailed packet, including a legal brief with supporting documentation, to establish that the U.S. citizen father had satisfied the requirements of INA §309(a)(3).  Our office prepared an extensive legal brief which went over the client’s background, time in Russia, his involvement with his child prior to leaving Russia, the subsequent estrangement, the re-connection and ongoing financial support, etc.  We also presented various documents in which he had agreed to provide the financial support.   Unfortunately, the Consulate denied the U.S. passport application again.  When denying the U.S. passport application, the Consulate failed to give any credence to the various actions and statements through which the father did indeed agree in writing to provide financial support for the child until he reached the age of 18.  In addition, the Consulate improperly requested a proof of a pattern of support – which was not a statutory requirement.

 

Frustrated with this decision, our office asked our Client to allow us to request a Legal Advisory Opinion from the Legal Office of Overseas Citizen Services (OCS) regarding the denial of the child’s U.S. passport application.  While OCS agreed to review our request, they first requested additional proof that one of the other statutory requirements under INA §309 – regarding legitimation – had indeed been satisfied.  Surprised since this issue had already been satisfied by the Consulate, our office nonetheless prepared a legal brief to support how the legitimation component of the statute had been met.  Specifically, we submitted that the child had been legitimated prior to turning 18  by (1) operation of law in his home country (where the child was born and maintained a residence/domicile); and (2) the father’s affirmative actions in the State of California (where the child established residency while residing with his father).  To support these findings, we relied on guidance from the U.S. Dept. of State Foreign Affairs Manual, the definition of residence/domicile as defined under the INA and family law in the child’s home country and California.  OCS reviewed our submissions and came to a favorable conclusion regarding the sufficiency of the evidence submitted to satisfy INA §309(a).   The child recently applied for his U.S. passport at the Consulate in his home country and was advised it was approved.

 

Had we not been successful in obtaining this result, the child would have still been eligible to become a lawful permanent resident based on his U.S. citizen father.  However, he would not have been able to become a U.S. citizen until he satisfied the naturalization requirements under INA §316, which requires five years of continuous residence in the  U.S.  On a financial level, the father was also able to avoid the fees involved with the various stages of the green card process.

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