United States laws allow for children to acquire U.S. citizenship other than through birth in the United States.[1] See INA 301, INA 320, and INA 322. Persons who were born outside of the United States to a U.S. citizen parent or parents may acquire or derive U.S. citizenship at birth. Persons may also acquire citizenship after birth, but before the age of 18, through their U.S. citizen parents.
Previously, acquisition of citizenship generally related to those persons who became U.S. citizens at the time of birth, and derivation of citizenship to those who became U.S. citizens after birth due to the naturalization of a parent.
In general, current nationality laws only refer to acquisition of citizenship for persons who automatically become U.S. citizens either at the time of birth or after. In general, a person must meet the applicable definition of child at the time he or she acquires citizenship and must be under 18 years of age.
B. Background
The law in effect at the time of birth determines whether someone born outside the United States to a U.S. citizen parent or parents is a U.S. citizen at birth. In general, these laws require a combination of at least one parent being a U.S. citizen when the child was born and having lived in the United States for a period of time. In addition, children born abroad may become U.S. citizens after birth. Citizenship laws have changed extensively over time with two major changes coming into effect in 1978 and 2001.
Prior to the Act of October 10, 1978, U.S. citizens who had acquired citizenship through birth abroad to one citizen parent had to meet certain physical presence requirements in order to retain citizenship.[2] See Act of October 10, 1978, Pub. L. 95-432, 92 Stat. 1046. This legislation removed all retention requirements. Prior to the Child Citizenship Act of 2000 (CCA), effective February 27, 2001, the INA had two provisions for derivation of citizenship.[3] See the Child Citizenship Act of 2000, Sec. 101, Pub. L. 106-395, 114 Stat 1631, October 30, 2000 (Effective February 27, 2001). The CCA removed one provision and revised the other making it the only method for children under 18 years of age in the United States to automatically acquire citizenship after birth.[4] The CCA amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth. See INA 320. See Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320).
C. Table of General Provisions
A child born outside of the United States may acquire U.S. citizenship through various ways. The table below serves as a quick reference guide to the acquisition of citizenship provisions.[5] Except for the reference to INA 321, the references in the table are to the current statutory requirements for citizenship. Previous versions of the law may apply. The chapters that follow the table provide further guidance.
|
General Provisions for Acquisition of Citizenship for Children Born Abroad |
|||
|---|---|---|---|
|
INA Section |
Status of Parents |
Residence or Physical Presence Requirements |
Child is a U.S. Citizen |
|
Both parents are U.S. citizens |
At least one U.S. citizen parent has resided in the United States or outlying possession prior to child’s birth |
At Birth |
|
|
One parent is a U.S. citizen; other parent is U.S. national |
U.S. citizen parent was physically present in the United States or its outlying possession for one year prior to child’s birth |
At Birth |
|
|
Unknown parentage |
Child is found in the United States while under 5 years of age |
At Birth |
|
|
One parent is a U.S. citizen; other parent is a foreign national |
U.S. citizen parent was physically present in United States or its outlying possessions for at least 5 years (2 after age 14) prior to child’s birth |
At Birth |
|
|
Mother is a U.S. citizen and father is a foreign national |
U.S. citizen mother resided in the United States prior to child’s birth |
At Birth (only applies to birth prior to 1934) |
|
|
Out of wedlock birth, claiming citizenship through father |
Requirements depend on applicable provision: INA 301(c), (d), (e), or (g) |
At Birth (Out of wedlock) |
|
|
Out of wedlock birth, claiming citizenship through mother |
U.S. citizen mother physically present in the U.S. or its outlying possessions for one year prior to the child’s birth |
At Birth (for birth after December 23, 1952) |
|
|
At least one parent is a U.S. citizen (through birth or naturalization) |
Child resides in the United States as a lawful permanent resident |
At Time Criteria is Met |
|
|
321 Repealed by CCA |
Both parents naturalize, or in certain cases, one parent naturalizes |
Child resides in the United States as a lawful permanent resident |
At Time Criteria is Met |
|
At least one parent is a U.S. citizen (through birth or naturalization) |
Child resides outside of the United States and child’s parent (or grandparent) was physically present in the U.S. or its outlying possessions for at least 5 years (2 after age 14) |
At Time Oath is Administered |
|
D. Legal Authorities
-
INA 101(c) – Definition of child for citizenship and naturalization
-
INA 301 – Nationals and citizens of the United States at birth
-
INA 309 – Children born out of wedlock
-
INA 320; 8 CFR 320 – Children residing permanently in the United States
-
INA 322; 8 CFR 322 – Children residing outside the United States
 Part H |
Top of Page | Chapter 2  |
Footnotes
2. [^]
See Act of October 10, 1978, Pub. L. 95-432, 92 Stat. 1046.
3. [^]
See the Child Citizenship Act of 2000, Sec. 101, Pub. L. 106-395, 114 Stat 1631, October 30, 2000 (Effective February 27, 2001).
4. [^]
The CCA amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth. See INA 320. See Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320).
5. [^]
Except for the reference to INA 321, the references in the table are to the current statutory requirements for citizenship. Previous versions of the law may apply.
Definition of Child for Citizenship and Naturalization
A. Definition of Child
The definition of “child” for citizenship and naturalization differs from the definition used for other parts of the INA.[1] The INA provides two different definitions of “child.”
One definition of child applies to approval of visa petitions, issuance of visas, and similar issues.[2]
The other definition of child applies to citizenship and naturalization.[3]
The most significant difference between the two definitions of child is that a stepchild is not included in the definition relating to citizenship and naturalization. Although a stepchild may be the stepparent’s “child” for purposes of visa issuance, the stepchild is not the stepparent’s “child” for purposes of citizenship and naturalization. A stepchild is ineligible for citizenship or naturalization through the U.S. citizen stepparent, unless the stepchild is adopted and the adoption meets certain requirements.[4]
In general, a child for the citizenship and naturalization provisions is:
An unmarried person under 21 years of age; and
The biological, legitimated,[5] or adopted son or daughter of a U.S. citizen.
In addition to meeting the definition of child, the child must also meet the particular requirements of the specific citizenship or naturalization provision, which may include references to birth in wedlock or out of wedlock, and which may require that certain conditions be met by 18 years of age, instead of 21.[6]
B. Legitimated Child[7]
The law of the child’s residence or domicile, or the law of the father’s residence or domicile, is the relevant law to determine whether a child has been legitimated. If the father or child had various residences before the child reached 18 or 21 years of age (depending on the applicable provision), then all the relevant laws of the places of residence must be considered.
A child is considered the legitimated child of his or her parent if:
The child is legitimated in the United States or abroad under the law of the child’s residence or domicile, or under the law of the child’s father’s residence or domicile;[8]
The child is legitimated as such before he or she reaches 16 years of age (except for certain cases where the child may be legitimated before reaching 18 years of age);[9] and
The child is in the legal custody of the legitimating parent or parents at the time of the legitimation.[10]
An officer reviews the specific facts of a case when determining whether a child has been legitimated accordingly and to determine the appropriate citizenship provision.
C. Adopted Child
An adopted child means that the child has been adopted through a full, final, and complete adoption.[11] This includes certain siblings of adopted children who are permitted to be adopted while under 18 years of age.[12]
A child is an adopted son or daughter of his or her U.S. citizen parent if the following conditions are met:
The child is adopted in the United States or abroad;
The child is adopted before he or she reaches 16 years of age (except for certain cases where the child may be adopted before reaching 18 years of age);[13] and
The child is in the legal custody of the adopting parent or parents at the time of the adoption.[14]
In general, the adoption must:
Be valid under the law of the country or place granting the adoption;
Create a legal permanent parent-child relationship between a child and someone who is not already the child’s legal parent; and
Terminate the legal parent-child relationship with the prior legal parent(s).[15]
D. Orphan[16]
In general, the definition for adopted children applies to adopted orphans. USCIS, however, does not consider an orphan adopted if any of the following conditions apply:
The foreign adoption was not full and final;
The foreign adoption was defective; or
An unmarried U.S. citizen parent or a U.S. citizen parent and spouse jointly did not see and observe the child in person prior to or during the foreign adoption proceedings.[17]
If the orphan is not considered adopted:
The child must be must be readopted in the United States; or
The child must be adopted while under 16 years of age and must have been residing in the legal custody of the adopting parent or parents for at least two years.[18]
In all cases, the condition that the child must have been residing in the legal custody of the adopting parent or parents is not required if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household.
Footnotes
1. See INA 101(b) and INA 101(c).
2. See INA 101(b).
3. See INA 101(c).
4. See Section C, Adopted Child.
5.A child can be legitimated under the laws of the child’s residence or domicile, or under the law of the father’s residence or domicile. See INA 101(c). A person’s “residence” is his or her place of general abode and principal, actual dwelling place without regard to intent. A person’s “domicile” refers to a person’s legal permanent home and principal establishment, to include an intent to return if absent. In most cases, a person’s residence is the same as a person’s domicile.
6. See Chapter 3, United States Citizens at Birth (INA 301 and 309). See Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320). See Chapter 5, Child Residing Outside of the United States (INA 322).
7. See INA 101(c).
8. See INA 101(a)(33), which defines the term “residence” as the “place of general abode.” The place of general abode of a person means his or her “principal, actual dwelling place in fact, without regard to intent.”
9. See INA 309. See INA 101(b)(1)(E)(ii) and INA 101(b)(1)(F)(ii).
10. See INA 101(c)(1).
11. See 8 CFR 320.1. See 8 CFR 322.1.
12. See INA 101(b)(1)(E)(ii).
13. See INA 101(b)(1)(E)(ii) and INA 101(b)(1)(F)(ii).
14. See INA 101(c)(1).
15. See Adjudicator’s Field Manual, Chapter 21.15, Adoption as a Basis for Immigration Benefits.
16. See INA 101(b)(1).
17. See 8 CFR 320.1. See 8 CFR 322.1.
18. See INA 101(b)(1)(E).
Resources
Legal Authorities
INA 101(c) – Definition of child for citizenship and naturalization
