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McCloud Law Group Legal Blog

Thursday, January 8, 2015

Privacy and Security in Business

Privacy and Security in Business

Almost every business collects uses and records customer information in some way, shape or form.  Your business may obtain names, addresses, telephone numbers, credit and debit card information, social security numbers or health care and insurance information in the ordinary course of business.  This data is often required in order for you to be able to serve your customers. However, you are responsible for keeping this data secure and your business must comply with Federal and state laws governing it.  The loss, theft and/or unauthorized use of this information could have devastating effects on your customer’s lives and on your business. 

New technology has enabled businesses to be more efficient and serve a broader customer base.  But, these technologies also come with the overwhelming risk of a customer data breach.  Therefore, you must be proactive in safeguarding this information.  In order to do this you should create a privacy and security policy.  The first step is to sit down and think about the type of information your business deals with and how it currently does so.  You should then consider who has access to this data.  It is also a good idea to make a list of these individuals so that you know who needs to be specially trained once you formulate a plan.  It is then imperative that you contact a business law attorney and a technology consultant, if the information is stored electronically, so that they can advise you as to the most secure, efficient and cost-effective options available to you.  A business law attorney will be able to explain the legal implications of a breach and ensure that you are in compliance with Federal and state laws.  Once you create a policy you should make it known by creating a written document to be distributed to employees and customers.

Privacy and security issues are not to be taken lightly.  If you are a business owner, you should worry about losing data, the theft and unauthorized use of information by employees and third parties, compliance actions and private litigation relating to these issues.  Your business and your customers would be best served by your attention to detail in this area.  Contact a seasoned business law attorney to discuss these issues today.


Monday, December 29, 2014

Will Marriage To A US Citizen Change The Legal Status Of An Illegal Alien/Undocumented Immigrant ?

Will Marriage to a U.S. Citizen Make an Illegal Alien/Undocumented Immigrant Legal?

Under the laws of most states, a United States citizen can marry an undocumented immigrant.  Regardless of whether the marriage is legal, however, the marriage may not confer legality upon the undocumented spouse's immigration status.

Usually, an immigrant who marries a U.S. citizen becomes an "immediate relative" and is eligible to apply to the United States Citizenship and Immigration Service (USCIS) for a green card, i.e. lawful permanent residence.  After the marriage, the U.S. citizen spouse can file Form I-130, Petition for Alien Relative and the immigrant can file Form I-485 seeking Adjustment of Status to permanent resident.

If the spouse is here illegally, however, the couple may encounter some obstacles.  The spouse's illegal presence may mean that using Form I-485 to apply for permanent residence is not an option.  The undocumented spouse must first leave the United States and rely on  processing by a U.S. Department of State Consulate abroad before returning.  Once outside the U.S, however, he or she may be barred from returning to the U.S. for years because of laws designed to punish and deter illegal immigration.

According to Section 212 of the Immigration and Nationality Act, if the spouse was present unlawfully for more than six months but less than a year, he or she would be barred from returning to the U.S. for three years.  If present for more than a year, the spouse would be barred for ten years.

Under a recent change in immigration law, undocumented immigrants can apply for a provisional waiver of the three- or ten-year ban.  If granted, the undocumented spouse would still have to leave the U.S. and apply at a consulate for reentry, but would not barred from returning.

Undocumented spouses must also meet the requirements that any documented spouse would have to meet.  They might have to show that they are not inadmissible for other reasons, such as a criminal past, a dangerous communicable disease, or a need for public assistance.  The marriage to an undocumented immigrant, like a marriage to a legal immigrant, would also have to be genuine and not a ploy to help the immigrant spouse get citizenship.

As the consequences of remaining in the country illegally can be severe, if you or your spouse is undocumented and intends to apply for citizenship based on the marriage, you should contact an immigration attorney as soon as possible.


Thursday, December 18, 2014

Can Negative Online Reviews Constitute Defamation ?

Negative Online Reviews  

We are living in the digital age and consumers use the internet to make a variety of decisions, including what products to buy and what professionals to hire. During their research,  many savvy consumers go online to look at the reviews the business has received on local business directories like Yelp or Google+.  These online reviews can have a profound effect on the success of your business so it is important to understand your rights should your business receive a negative one. 

In the case that your business has received a negative online review, you may have recourse under state or Federal defamation laws.  However, before pursuing that route, you should consider using any dispute or review process provided by the review site.  Defamation is generally defined as the act of intentionally publishing a false statement that has the ability to negatively effect another’s reputation.  Defamation laws protect individuals and businesses alike.  Publication is the communication of the defamatory statement to another person and the act of posting a review to a website usually qualifies.  Whether a statement has a negative effect on another’s reputation is judged using a reasonable person standard and will be looked at on a case by case basis.  In order for the statement to actionable, it does not have to be intentionally defamatory; it just has to be intentionally published.  Defamatory statements must be false and cannot be opinions.  Whether your situation meets the necessary threshold for defamation may be difficult to ascertain, so it is important to consult with a qualified attorney before pursuing a claim for business defamation.

If you believe that your business has received an online review that contains false information and is damaging to your business reputation, you might have a claim for defamation.  Recent civil cases for this type of wrong have resulted in large verdicts for the businesses that were injured.  While you most likely cannot pursue an action against the hosting website, as they are usually exempt under the Digital Millennium Copyright Act (DMCA), you might be able to recover from the individual that made the statement.  All litigation should be considered using a cost-benefit analysis and business defamation cases resulting from online reviews are not any different.  


Monday, December 8, 2014

Alternative Dispute Resolution and bringing a case to a close

 

Alternative Dispute Resolution Might Be the Right Way to Bring a Case to a Close

 

Civil lawsuits arise because of a dispute between parties.  They’re unable or unwilling to resolve the dispute, so they get lawyers involved and cases are filed.  The litigation process is a way to resolve those issues with the help of a judge or jury.  But that’s not the only way to resolve a dispute.  
 
There are costs and benefits to litigation.  The obvious benefit is that a party may get the resolution it wants.  In a commercial context, pursuing litigation can also serve as a notice to others that the business does not hesitate to enforce its rights. But, the costs of litigation are many.  
  • Litigation often comes with a hefty price tag.  A party might not only be on the hook for its own costs and attorneys’ fees, but also a verdict against it and possibly the costs and attorneys’ fees for the opposing parties.
  • A case can literally take years.  If you win at trial, there could be an appeal.  Collecting on a money damages award will take time, if you can do it at all.  The time and energy a party spends on a legal case is time and energy not spent on other things, like family, making a living or running a business.  
  • Litigation can be emotionally draining.  The parties may have to relive over and over again, during depositions (when parties are questioned under oath) and at trial, in front of total strangers, very stressful and painful situations.
  • Litigation results in a loss of privacy.  Court proceedings and verdicts are generally matters of public record.   Someone off the street can go to the court clerk’s office, open up a file and read about very personal issues (such as family disputes, medical conditions and finances).  
One way to seek the outcome a party wants, without the heavy costs and risks of litigation, is alternative dispute resolution.  The parties can agree to mediation or arbitration, which may bring litigation to a close.
 
Mediation is a process by which a mediator works with the parties and attorneys to create a resolution acceptable to all parties.  Arbitration is a more formal process by which evidence is presented and an arbitrator (or panel of arbitrators) decides who should prevail.  An arbitration decision may or may not be binding on the parties.  
 
A mediator will learn the circumstances leading to the case, the parties’ positions and what they’re willing to give and take to resolve the issue.  The mediator may meet separately with the parties, try to create common ground and possibly come up with creative ways to meet the parties’ needs.  A mediator may, or may not, try to guide the parties with his or her assessment of the strengths and weaknesses of the case and the likelihood of success or failure, if it proceeds.
 
The parties can control how much time and energy this will take, instead of being subject to a trial schedule.  Agreements can be kept confidential.  Money, time, energy and emotions not spent on litigation can be spent on other things.  
 
Alternative dispute resolution is a means to bring control and certainty to the legal process which is invaluable when you are recovering from a traumatic, stressful and painful event that led to the legal action in the first place.

Friday, November 28, 2014

How to ask for a Prenuptial Agreement

How to Ask Your Partner for a Prenuptial Agreement

Discussing your desire to establish a prenuptial agreement with your future spouse has the potential to be a complete disaster, but approaching the topic with the comfort of your partner in mind can help alleviate much of the stress associated with the process of creating a premarital agreement.

A prenuptial agreement is a legal document drafted and signed before marriage that lays the groundwork for the distribution of assets should the marriage fail. Although these agreements aren't a requirement for engaged couples, many attorneys agree they are an important part of the pre-marriage process, as they provide a binding agreement that each partner must adhere to in the event of a divorce. Many are sensitive to the idea that signing an agreement of this kind means one partner thinks the marriage will fail, but prenuptial contracts are really just meant to serve as a contingency plan.

Below are three ways to make the discussion easier.

Know the basics of a prenuptial agreement.

You likely have an inkling as to how your partner will react to you bringing up the subject of a premarital agreement. Whether you think they will be neutral or get defensive at the very mention of the idea, explain that drafting the agreement as a couple gives you the ability to design it in a way that could financially protect both of you in the event that your marriage fails. Make sure your partner is aware that their feelings during this process are of the utmost importance to you. It's best to seek the guidance of an experienced family law attorney prior to discussing a prenuptial agreement with your future spouse in order to gather all the information you need to have a thorough discussion on the subject. These small preparations can help the conversation flow more smoothly between you and your partner, hopefully resulting in a relaxed and honest discussion about what you both expect from your marriage.

Don't wait until the last minute to tell your fiancé you want a premarital agreement.

Both of you should be involved in the process of drafting the prenuptial agreement. It shouldn't be one of you presenting the other with a contract at the rehearsal dinner right before the wedding. Not only are last-minute agreements on "shaky ground" legally speaking, but you're more likely to upset your partner if you expect them to read and sign this type of contract without any warning. Prenups that are signed shortly before the wedding aren't necessarily lawfully invalid, but they are much more likely to be legally argued than agreements that were signed well before a couple says "I do." In order to avoid inflicting massive pre-wedding jitters on your partner, talk about your desire to have a prenup as soon as possible following your engagement. Working together to draft the agreement provides both of you with a chance to state how you feel "work" will be divided throughout your marriage, which can make you more secure with your decision to marry than before. The prenuptial agreement takes the guesswork out of a divorce, as it determines who owns what property.

Consider working with a mediator to draft your premarital agreement.

Working with a mediator allows you, the couple, to draft a contract that combines both of your best interests. Before meeting with a mediator, couples should come up with some issues they would like to address in their prenuptial agreement. Discussing what key points you want the agreement to include beforehand ensures that you are on the same page as a couple, and it will make the meeting with the mediator more productive. In addition to providing you with unbiased advice, a mediator can offer couples guidance on the legalities involved in such contracts. This method is a smart way to guarantee each spouse equal bargaining power. As a matter of protection and precaution, each spouse may also hire their own individual attorney to review the agreement.


Tuesday, November 18, 2014

What Employers Should NOT ask during an Interview

What Employers should NOT ask during an interview

 Most employers know that their workers are protected from discrimination while they are employed.  Surprisingly, some are unaware that prospective employees are protected throughout the application and hiring process as well.  Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Age Discrimination in Employment Act of 1967, as well as other Federal and state laws, are all applicable to prospective employees.  Therefore, employers must be extremely careful about the questions they ask individuals applying for a position.

Employers should shy away from asking any questions that might give a prospective employee reason to believe they were not selected for a position due to discrimination.  Employers should not inquire about an applicant’s race, unless it is for an Equal Employment Opportunity Commission purpose (which should be noted).  They should also not ask about an applicant’s citizenship status and instead should inquire as to whether the individual has authorization to work in the United States.

Employers should also be sensitive to discrimination based on gender and sexual orientation when conducting interviews.  They should not ask gender-related questions or anything regarding pregnancy or children.  It is also not a good idea to ask a prospective employee about marital status or religion.  An employer might be concerned that a prospective employee will miss work due to young children or religious holidays.  But, if they are concerned about an applicant’s attendance, they should only ask about attendance records at previous places of employment.  Now, many states have laws relating to discrimination based on sexual orientation and employers should be careful not to inquire about this detail as well.

Individuals with disabilities are protected under Federal and state law.   An employer should never ask about a disability.  All that matters is that the individual is able to perform job duties, so an employer should only inquire about functioning in that respect.  For example, if the applicant is interested in an inventory position that requires standing for the entire 8 hour shift and lifting heavy boxes, but the applicant suffers from a disability, the employer should only ask whether their disability prohibits them from performing these duties.  Many states now have or are in the process of passing laws that prohibit discrimination based on criminal convictions, so employers should be aware not to ask about an applicant’s criminal history unless they are sure it is allowed under their state’s law.  For the same reason, employers should not ask about credit history or personal finances unless these characteristics have a direct affect on the applicant’s ability to do their job. 

If you are a business owner, it is in your best interest to put together a list of interview questions for prospective employees and to review that list with an experienced attorney.  You should also be sure that all of the parties conducting interviews are aware of the rules relating to interview questions and abide by them.


Monday, November 10, 2014

Common Legal Mistakes Made by Entrepreneurs

Legal Mistakes That Cost Entrepreneurs Time, Money and Headaches…And How to Avoid Them

Entrepreneurs must navigate through a maze of legal issues and decisions when launching a new business. At the outset, you may think some seem inconsequential – but, tragically, that would likely be your first of many mistakes. The choices you make today will have lasting effects on the viability and profitability of your new business venture. Below are some of the most common mistakes made by first-time entrepreneurs, and what you can do to avoid making them yourself.

 

Choosing the Wrong Business Structure

The type of business entity you select will affect your liability exposure, income tax obligations and opportunities to raise capital throughout the duration of your venture. Sole proprietorships, C-corporations, S-corporations and limited liability companies (LLC) all have their advantages and drawbacks. Sole proprietorships are simple to start up, but leave your personal assets vulnerable and offer few tax advantages. C-corporations and S-corporations shield your personal assets, and each afford different tax advantages and disadvantages. Additionally, maintaining the protection afforded by the corporate business structure requires a certain amount of record-keeping and forms which must be filed with governmental agencies. LLCs offer you liability protection, but may not be the best choice depending on various factors, including taxes, ownership structure and, in some states, professional licensure. Often, the corporate structure is the most advantageous, but this decision really should be made in consultation with a business or tax attorney.

 

The “Gentlemen’s Agreement” – A Handshake and Your Word

Your word may be your honor, but a written contract is the only way to be sure all parties share a mutual understanding regarding their obligations. Whether it is your best client, that independent contractor you’ve been courting, or vendors you have known for years, do not assume everything will go according to plan. Putting your agreement in writing not only ensures that everyone’s expectations are clear, it is also valuable evidence in the courtroom, should things not proceed according to plan. Bottom line – get it in writing!

 

Adding Partners Without a Written Agreement

It’s easy to sweep this one aside when you are passionately focused on the work of getting your business off the ground. And those new partners likely share your same passion. However, until a detailed written Partnership Agreement is drafted and signed, you may be unclear about each other’s expectations in the short term, or, if your business is wildly successful, tied up in protracted, long-term litigation, to establish who owns what (Facebook comes to mind). Redirect some of that passion, and benefit from the goodwill it creates, to negotiate a Partnership Agreement early on that covers responsibilities, ownership structure, provisions for transferring ownership, and what happens when there’s a disagreement about the direction of the company.

 

Sharing Ownership 50/50

Establishing equal percentages of ownership in the company sounds like a fair and reasonable arrangement. However, this type of situation makes it difficult to bring on investors, and can bring the company to a standstill if the partners cannot agree on a decision. Instead, issue shares in the company in such a manner that investors can be added later; and make sure those shares are distributed to the founders with at least a 51/49 split, giving the majority shareholder the authority to make executive decisions even if there is a stalemate.

 


Tuesday, October 28, 2014

EB-5 "Investor" Visa: What to Know

 

EB-5 “Investment” Visa: What to Know

The EB-5 visa or Immigrant Investor Program was established in 1990 to stimulate employment through capital investment by foreign nationals.  It enables potential immigrants who are investing significant amount of money into a new commercial enterprise to emigrate permanently to the U.S.

The law is very specific as to the amount of money available for investment and how it is to be invested. Key requirements include:

  • The immigrant must invest in a new commercial enterprise or the restructuring and enhancement of an existing enterprise.
  • The immigrant must invest at least $1 million (or $500,000 if the investment is made in a Targeted Employment Area: a rural geographic area of high unemployment).
  • The immigrant must conclusively demonstrate that at least 10 full-time jobs will result from the investment.
  • The immigrant must demonstrate, via employment documents, tax documents, property sale documents and other evidence, that the funds to be used for the investment were obtained legally.

EB-5 and Path to Citizenship
If an immigrant meets its requirements, the EB-5 visa allows comparatively easy entry into the U.S. for successful applicants. It does not, however, pave a fast path to citizenship. Instead, the visa results in the granting of conditional permanent residency, which is valid for two years. The residency is conditional because, beginning with the 21st month of conditional residency, the investor must submit evidence that:

  • The full required investment has been made
  • Ten jobs have been created or maintained or will be created within a time period approved by the USCIS

If, after two years, the USCIS is satisfied that the conditions of the investor visa were met, the investor and his or her family members are granted 10-year green cards. Five years into the 10-year green card time period, the investor and family members can apply for U.S. citizenship.

Changes to the EB-5 Visa

In recent years, Congress has attempted to address the fact that only a small number of applicants apply for the EB-5 visa, presumably due to complex steps in the application process, excessive adjudication periods and inefficiency in the USCIS’s processing of EB-5 applications. Tweaks to the process and the subsequent renewal of temporary initiatives designed to increase participation in the EB-5 visas include:
 

  • A relaxing of the definition of what constitutes an investment made under the investment visa program
  • Loosening of restrictions governing “managerial involvement” on the part of investors
  • Fewer restrictions concerning where the investor and his or her family can live in relation to the location of the business in which the investor made an investment

Regulations related to the EB-5 visa program can be complicated.  Foreign investors interested in immigrating to the U.S. under this program should consult with an attorney to ensure they comply with all its rules.
 


Monday, October 20, 2014

Thinking about becoming a Restaurateur ?

Opening a new restaurant? Some key legal considerations for restaurateurs

Each year, approximately 30,000 new restaurants are opened in the United States. Most restaurateurs understand the great risk that comes with these ventures; in fact, some sources estimate as many as 18,000 of the 30,000 restaurants opened this year will fail within the first three years in business. Despite the risk, many chefs and hospitality professionals dive right in. If you’re a hopeful restaurateur, legal planning is an absolute necessity to ensure you don’t fall victim to many of the common mistakes that cause these businesses to fail. Consider the following:

Business Entity
All restaurant owners must carefully consider the best corporate structure for their businesses. Generally speaking, there are four types of structures: a sole proprietorship, a partnership, a limited liability company (LLC) or a corporation. In the case of a restaurant, most owners will want to limit liability, and protect personal assets, should there be a lawsuit filed by a customer or employee. An LLC or corporation is often recommended for restaurants since these limit personal liability. A qualified business law attorney can help you identify which structure is best for your new restaurant, and help you prepare and file all required documents.

Zoning
As any successful restaurateur will tell you, a good location is key to a profitable restaurant. In considering the location of your restaurant, you will want to take into account the local zoning laws. Some areas are restricted to residential dwellings while others may be zoned for commercial use. Do you want to have outdoor seating in the summer? That too may be subject to zoning restrictions. Be sure to carefully outline how you plan to use the space and then identify possible locations accordingly.

Leasing a Space
If you don’t have the capital to buy a space for your restaurant, you’ll likely have to rent one. In many cases, costly renovations are required (especially if the space was not previously used for a restaurant). When a significant amount of money is put into the space upfront, it’s absolutely essential that you take steps to protect your tenancy and ensure your business can afford to stay there for an undetermined amount of time. This might mean negotiating a favorable a long-term lease, and including specific clauses pertaining to rent increases. A lawyer with experience in the restaurant industry should be consulted early in the process to ensure your best interests are protected.

Licenses and Permits
Unlike many other types of businesses, restaurants often require a number of licenses and permits from local governing bodies. For instance, you might be required to obtain a license to handle food. If you want to have a bar, you will need a liquor license. Even if you plan to have patron dancing, you may be required to obtain a special permit. An attorney can help you identify exactly what you will need and help you complete all applicable paperwork.

Patron & Employee Safety
To ensure the safety of all patrons, your local governing agency may require your restaurant to undergo regular inspections from the health department. To ensure the well-being of all employees, you should also review all Occupational Safety and Health Administration policies.

Insurance
If you frequent restaurants, you’ve likely witnessed an accident or two - a server spills a hot cup of coffee all over a patron or a bartender slips on some water from the ice machine. With the risk of injury high, it’s absolutely critical that all restaurant owners select an insurance policy which protects the business against lawsuits. In selecting the best policy, speak with an insurance agent and knowledgeable attorney who have restaurant experience to ensure you are protected.

Intellectual Property
You have probably thought long and hard about your restaurant’s name, signature recipes and even your tagline. Since these components are all critical to your branding and long-term success, you should take steps to protect them. An attorney can help you register the name of your restaurant or food creation as a trademark.

Franchises
If you are purchasing a franchise, you will have even more legal considerations including the time consuming review of the disclosure document and the often daunting franchise agreement.

Opening a restaurant has its fair share of challenges, especially when compared with many other types of small businesses. By addressing potential legal pitfalls, restaurateurs can focus on operational aspects of their business and enhance their chance of success. It’s absolutely essential that you consult an attorney with experience in the restaurant industry early on to reduce risk and expense down the road.


Wednesday, October 8, 2014

Protecting your Legacy via Estate Tax Planning

 

Protecting Your Legacy with Estate Tax Planning

 

You spend your whole life building your legacy but sadly, that is not always enough. Without careful estate tax planning, much of it could be lost to taxes or misdirected. While a will or living trust is essential for dividing your estate as you wish, an estate tax plan ensures you pass on as much of your legacy as possible.

Understanding estate tax laws

For the past decade, estate tax laws have been a sort of political football with significant changes occurring every few years.  The good news is that the 2013 tax act made the basic $5 million estate tax exemption “permanent,” but at a higher rate of 40%, though the law continues to adjust the exemption level for inflation. With this adjustment, the 2014 exclusion is $5.34 million per person ($10.68 million per married couple). The law also retained exclusion “portability” which means that if one spouse dies in 2014, the surviving spouse may pass on the unused portion of the deceased spouse’s exclusion. This portability is not automatic, however. The unused portion needs to be transferred by the executor to the surviving spouse, and a special tax return must be filed within nine months. The surviving spouse does not have to pay estate taxes at this time, they only become due after both spouses have died.

Optimizing your estate plan

One way to maximize the amount you can pass on is through annual gifting while you are alive. An individual is allowed to give $14,000 each year to another individual, tax-free. If you give more than that, it will reduce your basic lifetime exclusion. So, if you give a child $50,000 this year, your basic $5.34 million exclusion will be reduced by $36,000 at the time of your death. You can gift as much as your full $5.34 million exclusion before incurring taxes, although doing so would “exhaust” your estate tax exemption at death. Gift tax rates were raised to 40% in 2013 and are paid by the giver, not the recipient.

An experienced estate tax planning attorney can help minimize potential gift and estate taxes by:

  • Identifying taxable assets
  • Transforming your wishes into a will or living trust
  • Keeping you apprised of federal and state tax law changes
  • Establishing an annual gifting plan
  • Creating family and charitable trusts
  • Setting up IRA charitable rollovers
  • Setting up 529 education savings plans
  • Helping you create a succession plan for your family business

It’s never pleasant to consider the end of your life, but planning for it will help ensure that the things you care about are cared for. It is one of the greatest gifts you can give your loved ones.


Sunday, September 28, 2014

US Citizen gives birth while abroad: What now ?

The Child Citizenship Act & How It Impacts Children Born to American Parents Abroad

Each year, thousands of Americans give birth to children outside of the United States. Although United States Immigration Law is ruled by the principle of “right of soil” meaning citizenship is determined by one’s place of birth, there are special considerations that come into play when an American citizen has a child abroad. The Child Citizenship Act (CCA) which went into effect on February 27, 2001, established the criteria for foreign born children, including adopted children, to obtain U.S. citizenship. In most cases, children who are less than 18 years of age and have at least one parent who is an American citizen (by birth or naturalization) will be able to obtain U.S. citizenship.

If you are expecting a child and living abroad or simply taking a vacation overseas during your pregnancy, it’s important that you contact the local embassy or consulate to verify current law and make sure you meet all of the requirements necessary to obtain citizenship for your new addition. Under the CCA which seeks to simplify the immigration process, a foreign born child who has at least one parent who is a United States citizen automatically acquires citizenship upon entry into the country as an immigrant provided that he enters the country before his 18th birthday. No further paperwork is necessary. Once here, the parent may request a Certificate of Citizenship and a U.S. passport. 

For American parents who wish to remain abroad and raise their children outside of the United States, citizenship of foreign-born children can only be acquired through application. In this case, the American parent would need to contact the local embassy and submit the following documents:

  • Photographs of the child
  • Fee
  • The child’s birth certificate
  • The parent’s birth certificate or naturalization certificate
  • The parents’ marriage certificate (if applicable)
  • Evidence of termination of previous marriages (if applicable)
  • Evidence of a full and final adoption (if applicable)
  • Evidence of all legal name changes (if applicable)
  • Form N-600/N643 Supplement A (if applicable)

It’s important to note that the CCA does require the U.S. citizen parent of a child living abroad to have five years of physical presence in the U.S. with at least two years occurring after age 14, in order to apply for citizenship on behalf of the child. In some instances, where the parent does not meet this requirement, the physical presence of the citizen’s parent (the grandchild of the child in question) may be used.

Since the laws are subject to change, it’s important that you consult a U.S. immigration attorney prior to giving birth abroad. A knowledgeable attorney can help you understand your options and identify the best course of action to obtain American citizenship for your child.


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