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Foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent

Posted on October 26, 2013 by Mike Baker

Child Residing Outside of the United States (INA 322)

A. General Requirements: Biological, Legitimated, or Adopted Child Residing Outside the United States^[1] See Nationality Chart 4.

The CCA amended the INA to cover foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent.^[2] See INA 322.

A biological, legitimated, or adopted child who regularly resides outside of the United States is eligible for naturalization if all of the following conditions have been met:

The child has at least one U.S. citizen parent by birth or through naturalization, (including an adoptive parent).^[3] Adoptive parent must meet requirements of either INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

The child’s U.S. citizen parent or citizen grandparent meets certain physical presence requirements.^[4] See Section C, Physical Presence of U.S. Citizen Parent or Grandparent.

The child is under 18 years of age.

The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, or a person who does not object to the application if the U.S. citizen parent is deceased.

The child is lawfully admitted, physically present, and maintaining a lawful status in the United States at the time the application is approved and time of naturalization.

There are certain exceptions to these requirements for children of U.S. citizens in the U.S. armed forces accompanying their parent abroad on official orders.

B. Eligibility to Apply on the Child’s Behalf

Typically, a child’s U.S. citizen parent files a Certificate of Citizenship application on the child’s behalf. If the U.S. citizen parent has died, the child’s citizen grandparent or the child’s U.S. citizen legal guardian may file the application on the child’s behalf within five years of the parent’s death.^[5] As of November 2, 2002, a U.S. citizen grandparent or U.S. citizen legal guardian became eligible to apply for naturalization under this provision on behalf of a child. See the 21st Century Department of Justice Appropriations Authorization Act for Fiscal 2002, Pub. L. 107-273 (November 2, 2002), which amended INA 322 to permit U.S. citizen grandparents or U.S. citizen legal guardians to apply for naturalization on behalf of a child if the child’s U.S. citizen parent has died.

C. Physical Presence of the U.S. Citizen Parent or Grandparent^[6] See INA 322(a)(2). See 8 CFR 322.2(a)(2).

1. Physical Presence of Child’s U.S. Citizen Parent

A child’s U.S. citizen parent must meet the following physical presence requirements:

The parent has been physically present in the United States or its outlying possessions for at least five years; and

The parent met such physical presence for at least 2 years after he or she reached 14 years of age.

A parent’s physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the parent was not a U.S. citizen.

2. Exception for U.S. Citizen Member of the U.S. Armed Forces

The child’s U.S. citizen service member parent may count any period of time he or she has resided abroad on official orders as physical presence in the United States.^[7] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section C, Children of Military Members. See INA 322(d). See 8 CFR 322.2(c).

3. Reliance on Physical Presence of Child’s U.S. Citizen Grandparent

If the child’s parent does not meet the physical presence requirement, the child may rely on the physical presence of the child’s U.S. citizen grandparent to meet the requirement. In such cases, the officer first must verify that the citizen grandparent, the citizen parent’s mother or father, is a U.S. citizen at the time of filing. If the grandparent has died, the grandparent must have been a U.S. citizen and met the physical presence requirements at the time of his or her death.

Like in the case of the citizen parent, the officer also must ensure that:

The U.S. citizen grandparent has been physically present in the United States or its outlying possessions for at least five years; and

The U.S. citizen grandparent met such physical presence for at least 2 years after he or she reached 14 years of age.

Like the citizen parent, a grandparent’s physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the grandparent was not a U.S. citizen.

D. Temporary Presence by Lawful Admission and Status in United States

1. Temporary Presence and Status Requirements

In most cases, the citizenship process for a child residing abroad cannot take place solely overseas.

The child is required to be lawfully admitted to United States, in any status, and be physically present in the United States;^[8] See INA 322(a)(5). See 8 CFR 322.2(a)(5).

The child is required to maintain the lawful status that he or she was admitted under while in the United States;^[9] See INA 322(a)(5). and

The child is required to take the Oath of Allegiance in the United States unless the oath requirement is waived.^[10] See INA 322(b). See Section G, Decision and Oath of Allegiance.

2. Exception for Child of U.S. Citizen Service Member of the U.S. Armed Forces

Certain children of U.S. citizen members of the U.S. armed forces are not required to be lawfully admitted to or physically present in the United States.^[11] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits. See INA 322(d). See 8 CFR 322.2(c).

E. Application for Citizenship and Issuance of Certificate under Section 322 (Form N-600K)

A U.S. citizen parent of a biological, legitimated, or adopted child born outside of the United States who did not acquire citizenship automatically may file an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) for the child to become a U.S. citizen and obtain a Certificate of Citizenship. The application may be filed from outside of the United States.

If the U.S. citizen parent has died, the child’s U.S. citizen grandparent or U.S. citizen legal guardian may submit the application, provided the application is filed not more than five years after the death of the U.S. citizen parent.^[12] See 8 CFR 322.3(a).

The child of a U.S. citizen member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to citizenship and naturalization.

F. Documentation and Evidence

The applicant must submit the following required documents unless such documents are already contained in USCIS administrative record or do not apply.^[13] See 8 CFR 322.3(b).

The child’s birth certificate or record.

Marriage certificate of child’s parents, if applicable.

Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed, for example:

- Divorce Decree, or
- Death Certificate.

Evidence of United States citizenship of parent:

- Birth Certificate,
- Naturalization Certificate,
- FS-240, Consular Report of Birth Abroad,
- A valid unexpired United States Passport, or
- Certificate of Citizenship.

Documents verifying legitimation according to the laws of the child’s residence or domicile or father’s residence or domicile if the child was born out of wedlock.

Documentation of legal custody in the case of divorce, legal separation, or adoption.

Documentation establishing that the U.S. citizen parent or U.S. citizen grandparent meets the required physical presence requirements, such as school records, military records, utility bills, medical records, deeds, mortgages, contracts, insurance policies, receipts, or attestations by churches, unions, or other organizations.

Evidence that the child is present in the United States pursuant to a lawful admission and is maintaining such lawful status or evidence establishing that the child qualifies for an exception to these requirements as provided for children of members of the U.S. armed forces.^[14] See INA 322(d)(2). Such evidence may be presented at the time of interview when appropriate.

Copy of the full, final adoption decree, if applicable

- For an adopted child (not orphans or Hague Convention adoptees), evidence that the adoption took place before the age of 16 (or 18, as appropriate) and that the adoptive parents have had custody of, and lived with, the child for at least two years.^[15] See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child.

- For an adopted orphan, a copy of notice of approval of the orphan petition and supporting documentation for such petition (except the home study) or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IR-3 (Orphan adopted abroad by a U.S. citizen) or IR-4 (Orphan to be adopted by a U.S. citizen).^[16] If admitted as an IR-4 because there was no adoption abroad, the parent(s) must have completed the adoption in the United States. If admitted as an IR-4 because the parent(s) obtained the foreign adoption without having seen the child, the parent(s) must establish that they have either “readopted” the child or obtained recognition of the foreign adoption in the State of residence (this requirement can be waived if there is a statute or precedent decision that clearly shows that the foreign adoption is recognized in the State of residence). See 8 CFR 320.1.

- For a Hague Convention adoptee applying under INA 322, a copy of the notice of approval of Convention adoptee petition and its supporting documentation, or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IH-3 (Hague Convention Orphan adopted abroad by a U.S. citizen) or IH-4 (Hague Convention Orphan to be adopted by a U.S. citizen).^[17] If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

Evidence of all legal name changes, if applicable, for the child, U.S. citizen parent, U.S. citizen grandparent or U.S. citizen legal guardian.

An applicant does not need to submit documents that were submitted in connection with:

An immigrant visa application retained by the American Consulate for inclusion in the immigrant visa package, or

An immigrant petition or application and included in a USCIS administrative file.

If necessary, an officer may continue the application to request additional documentation to make a decision on the application.

G. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K). This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age.^[18] See 8 CFR 322.4. USCIS, however, waives the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records or if any of the following documentation is submitted along with the application.^[19] See 8 CFR 341.2. See Section F, Documentation and Evidence.

H. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

If an officer approves the Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K), USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.^[20] See 8 CFR 322.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.^[21] See INA 337(a). See 8 CFR 341.5(b). USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.

Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.

2. Denial of Application

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.^[22] See 8 CFR 322.5(b) and 8 CFR 103.3(a). An applicant may file an appeal within 30 days of service of the decision.

Footnotes

1. [^]

See Nationality Chart 4.

2. [^]

See INA 322.

3. [^]

Adoptive parent must meet requirements of either INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

4. [^]

See Section C, Physical Presence of U.S. Citizen Parent or Grandparent.

5. [^]

As of November 2, 2002, a U.S. citizen grandparent or U.S. citizen legal guardian became eligible to apply for naturalization under this provision on behalf of a child. See the 21st Century Department of Justice Appropriations Authorization Act for Fiscal 2002, Pub. L. 107-273 (November 2, 2002), which amended INA 322 to permit U.S. citizen grandparents or U.S. citizen legal guardians to apply for naturalization on behalf of a child if the child’s U.S. citizen parent has died.

6. [^]

See INA 322(a)(2). See 8 CFR 322.2(a)(2).

7. [^]

See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section C, Children of Military Members. See INA 322(d). See 8 CFR 322.2(c).

8. [^]

See INA 322(a)(5). See 8 CFR 322.2(a)(5).

9. [^]

See INA 322(a)(5).

10. [^]

See INA 322(b). See Section G, Decision and Oath of Allegiance.

11. [^]

See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits. See INA 322(d). See 8 CFR 322.2(c).

12. [^]

See 8 CFR 322.3(a).

13. [^]

See 8 CFR 322.3(b).

14. [^]

See INA 322(d)(2).

15. [^]

See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child.

16. [^]

If admitted as an IR-4 because there was no adoption abroad, the parent(s) must have completed the adoption in the United States. If admitted as an IR-4 because the parent(s) obtained the foreign adoption without having seen the child, the parent(s) must establish that they have either “readopted” the child or obtained recognition of the foreign adoption in the State of residence (this requirement can be waived if there is a statute or precedent decision that clearly shows that the foreign adoption is recognized in the State of residence). See 8 CFR 320.1.

17. [^]

If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

18. [^]

See 8 CFR 322.4.

19. [^]

See 8 CFR 341.2. See Section F, Documentation and Evidence.

20. [^]

See 8 CFR 322.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

21. [^]

See INA 337(a). See 8 CFR 341.5(b).

22. [^]

See 8 CFR 322.5(b) and 8 CFR 103.3(a).

Resources

Legal Authorities
INA 101(c) – Definition of child for citizenship and naturalization
INA 322 , 8 CFR 322 – Children residing outside the United States

Posted in Child Citizenship Act of 2000, Citizenship and Naturalization policies and procedures, Citizenship for Children, Foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent | Leave a comment

U.S Citizenship for Children: Birth, Acquisition, Derivation

Posted on October 7, 2013 by Mike Baker

Children can be or become citizens through their parents.

Children can automatically become United States citizens, even if they were born outside of the United States. In addition, a United States citizen parent can apply for the naturalization of his or her children.

There are three ways a child automatically becomes a citizen:

Birth: Child is born in the United States or its territories.
Acquisition: Child is born outside of the United States or its territories, but acquires citizenship at birth through a United States citizen parent.
Derivation: Child becomes a citizen before age 18 on the basis of one parent’s citizenship. The parent may be a citizen by birth or by naturalization.

Territories = The current territories of the United States are Puerto Rico, U.S. Virgin Islands, Guam, and the Northern Mariana Islands. “I am a citizen because I was born in a United States territory.”

note: Although citizenship is automatic in these cases, the child may not have proof of citizenship. This is why the child may apply for a United States passport or a Certificate of Citizenship. Both documents are proof of citizenship. There is one way a child can apply to become a citizen.

Naturalization: Citizen parent applies for a Certificate of Citizenship on child’s behalf. Child must complete the naturalization process before age 18.

Acquisition of Citizenship

Children can acquire citizenship at birth when they are born outside of the United States. You may have acquired citizenship at birth if you had at least one United States citizen parent. The laws for acquiring citizenship at birth have changed often over the years. Much depends on when you were born and what law for acquisition of citizenship was in effect at that time.

Current requirements

(children born after November 14, 1986)
Child with two Citizen parents
One parent must have been physically present in the United States or its possessions at any time before the child’s birth.
Child with One Citizen parent and One national parent
The citizen parent must have been physically present in the United States or its possessions for at least one continuous year before the child’s birth.
Child with One Citizen parent
The citizen parent must have been physically present in the United States for five years before the child’s birth. At least two of the five years must be after the citizen parent was 14 years old. However, if the child was born in a possession, the citizen parent must have been physically present in the United States or its possessions for at least one continuous year before the child’s birth.
Child Born Out of wedlock to a united states Citizen Mother
The citizen mother must have been physically present in the United States or its possessions for one continuous year before the child’s birth.

possessions = Currently the possessions of the United States include American Samoa, Swains Island and the United States territories of Puerto Rico, U.S. Virgin Islands, Guam, and the Northern Mariana Islands. “My mother lived in a U.S. possession before I was born.” national = A non-citizen born in a United States possession. “My father is a national because he was born in American Samoa.” out of wedlock = Born of parents who are not married. “He was born out of wedlock, but then his parents married when he was six months old.”

Documenting Birth Abroad

A Consular Report of Birth Abroad of a Citizen of the United States (Form FS-240) is an official document certifying acquisition of citizenship for a child born outside of the United States. This document provides the same evidence of citizenship as a United States passport, a Certificate of Naturalization, or a Certificate of Citizenship. However, a United States passport is the most useful document to have. The application for a consular report must be submitted before the child’s 18th birthday and the child must be living outside the United States.

Procedures

The child’s parent or legal guardian completes an Application for Consular Report of Birth Abroad of a Citizen of the United States (Form DS-2029). Do not sign the form until directed to do so. The application is normally made in the consulate of the country where the child was born. Check the U.S. Department of State website for the current fee.

Evidence of the child’s birth is needed, as well as evidence of the parent(s)’ United States citizenship, marriage (if applicable), and previous physical presence in the United States. If the parents are unmarried and the father is a citizen and the mother a non-citizen, the consular officer usually requires that the father sign an affidavit saying that he is the child’s biological father and that he will support the child financially. Additional evidence such as divorce decrees from previous marriages or blood tests may also be required.

The child is required to go to the consulate in person with the parent or guardian.

Once the consular officer approves the application, he or she signs and issues the consular report of birth (Form FS-240).

Derivation Of Citizenship

Derivation of citizenship is when a child automatically becomes a citizen on the basis of one parent’s citizenship. The parent may be a citizen by birth or by naturalization. As with acquisition of citizenship, the laws have changed over time. Much depends on when you were born and what law was in effect during your childhood. Previous laws allowed derivation only through naturalization of both parents, or one parent with custody in cases of death or divorce. Current requirements. Effective February 27, 2001.

Under the Child Citizenship Act of 2000, a child automatically becomes a citizen when all of the following conditions are met:

at least one parent is a citizen, either by birth or by naturalization;
the child is under age 18;
the child is not married;
the child is a lawful permanent resident; and
the child is living in the United States in the legal and physical custody of the citizen parent.

note: The law is not retroactive, so a person who was 18 or older on 2/27/01 would not be able to benefit from the Child Citizenship Act.

note: An adopted child who meets the conditions listed above can derive citizenship under the Child Citizenship Act if there is a full, final, and complete adoption and the child meets certain additional requirements for adopted children under immigration law. Stepchildren can not derive citizenship.

example: Ahmed, age 12, lives outside the United States with his mother. His parents are divorced and have joint legal custody of Ahmed. Ahmed’s father lives in the United States and recently became a U.S. citizen. He filed an I-130 petition to bring Ahmed to the United States. When Ahmed enters the United States at the age of 13, joins his father, and receives lawful permanent resident status, he will become a U.S. citizen by derivation.

Documenting Derivation of Citizenship

You can prove derivation of citizenship using one of two documents:

a United States passport
a Certificate of Citizenship

It is easier, faster, and cheaper to apply for a United States passport than a Certificate of Citizenship. To get these documents, you will need to prove that you meet the legal requirements that were in effect before you reached age 18.

How Does a Child Show Lawful Permanent Residence?

A child who has lawful permanent residence (LPR status) will have a permanent resident card (green card). Another way to show LPR status is the I-551 stamp in the child’s passport. This stamp shows the child has entered the United States on an immigrant visa and/or has been admitted as a lawful permanent resident.

Must the Child Get a Certificate of Citizenship?

You do not have to apply for a certificate of citizenship for your child.

How Does the Child Get a Passport Under the Child Citizenship Act?

You will need the following when the child applies for a passport:

Proof of the child’s relationship to the American citizen parent. For the biological child of the American citizen this will be a certified copy of the foreign birth certificate (and translation if not in English). For an adopted child, it is a certified copy of the final adoption decree (and translation if not in English);
The child’s foreign passport showing the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (USCIS) I-551 stamp in the passport, or the child’s permanent resident card (green card);
Proof of identity of the American citizen parent(s)
Passport application, passport photographs and fees. Go to Passport Services for forms and full instructions.

Can My Child Get a Birth Certificate (Consular Report of Birth Abroad or CROBA) from the Embassy or Consulate?

No. Only a child who acquired citizenship at birth can get a birth certificate from an embassy or consulate.

Proving the Citizenship status of your Parent

Evidence: naturalization certificate; birth certificate; U.S. passport.

Proving your Relationship with your Parent

Evidence: birth certificate; baptismal certificate; medical records; religious records; school records; blood tests.
proving your parent had legal and physical custody of you
Evidence: marriage certificate; divorce decree; death certificate; separation and custody documents.
proving Your lawful permanent resident status
Evidence: Alien registration card, ie green card; entry documents.

note: There is no deadline when applying for documentation of derivative citizenship. Derivation happens automatically and requires only verification of the evidence.

example: Maria is 30 years old, but she has lived in the United States as a lawful permanent resident since the age of 5. When Maria was 10, both of her parents became U.S. citizens, and she automatically derived citizenship from them. She has been a citizen since the age of 10, but she never applied for proof of her citizenship status until now.

example: Igor, age 9, is a lawful permanent resident who lives with his parents in the United States. Igor’s father recently became a U.S. citizen, but his mother is still a non-citizen. Igor derived citizenship from his father. Igor’s father will apply for a passport or Certificate of Citizenship on Igor’s behalf, as proof of citizenship.

Certificate of Citizenship

A Certificate of Citizenship is given to people who became citizens through acquisition or derivation. Also, it is given to children when they naturalize. You can get a Certificate of Citizenship by filing Form N-600 with the necessary evidence.

Procedures-only for those who acquired or derived citizenship.

The applicant files Form N-600, Application for Certificate of Citizenship to the appropriate USCIS Field Office with the following: check or money order for the application fee; three identical, passport-style photos (2×2 inches); evidence of meeting the legal requirements for acquisition or derivation (see page 271 for a list of documents showing evidence of acquisition and page 274 for a list of documents showing evidence of derivation); translations of any documents not in English.

exception: For children who have immigrated to the United States, parents are not required to submit documents that are already in the USCIS file, including translations of documents. Applicants can state that they wish to rely on these previously submitted documents and give the name and A-number for the file containing the documents.

note: Adopted children applying for evidence of derivative citizenship use the same form (N-600). However, the fee is lower. The applicant must include a copy of the full, final adoption decree and, if the adoption took place outside the U.S., evidence that it is recognized by the state where the child resides.

note: If the applicant is age 18 or older, he or she must sign the application. For younger applicants, the citizen parent or legal guardian must sign it.

An interview is usually not required, but may be required to verify the evidence. If the applicant is under age 18 the citizen parent must attend the interview to provide testimony on the applicant’s behalf.

If USCIS denies the application, the applicant receives a written notice by mail of the reason for the denial. The decision may be appealed to the USCIS Field Office within 30 days using Form I-290B. Check the USCIS website, http://www.uscis.gov, for the current fee.

If approved, the applicant will take the oath of allegiance at the interview. The oath will be waived if applicant is too young or too disabled to understand it, or if no interview is required.

The applicant signs the Certificate of Citizenship, if he or she is able. If not, the parent signs it on the applicant’s behalf. The Certificate of Citizenship is given at the interview or sent by certified mail within the United States only.

Naturalization of Children

When a child does not qualify for automatic citizenship by acquisition or derivation, a citizen parent may apply to naturalize the child. The parent applies for naturalization on the child’s behalf using Form N-600K. The child does not become a citizen until USCIS approves the application. This procedure is for children living outside the United States with their citizen parent(s).

Current requirements; (effective February 27, 2001)

Under the Child Citizenship Act of 2000, a citizen parent may apply for naturalization on a child’s behalf if the following requirements are met:

at least one parent is a citizen, either by birth or by naturalization;
the citizen parent must have lived in the United States for a total of five years, at least two of which were after age 14; OR the United States citizen parent of the citizen parent (child’s grandparent) must have lived in the United States for a total of five years, two of which were after age 14;
the child is under age 18, and remains under age 18 until the naturalization process is completed;
the child is not married;
the child is residing outside of the United States in the legal and physical custody of the citizen parent; and
the child is temporarily present in the United States under a lawful admission, and remains in lawful status until the naturalization process is completed.

note: Adopted children can be naturalized under the Child Citizenship Act. They use the same form (N-600K), but the fee is lower. They need to submit evidence of a full and final adoption.

note: If the U.S. citizen parent is deceased, the U.S. citizen grandparent or legal guardian can file this application within five years of the parent’s death.

example: Erika, age 5, is an orphan who lives overseas with two U.S. citizen adoptive parents. She has never lived in the United States and is not a lawful permanent resident. Therefore, she does not qualify for derivative citizenship. Erika’s parents will apply to naturalize her using Form N-600K, then apply for Erika’s lawful entry into the United States to attend the USCIS interview.

Naturalization Procedures for Children

The United States citizen parent files the following with the preferred USCIS Field Office:

Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322;
Check or money order for the application fee;
Three identical passport-style photos (2×2); and
Evidence of meeting the legal requirements for the child’s naturalization (see N-600K instructions for a list of documents).

note: The citizen parent must sign the application on the child’s behalf.

2. Send a cover letter with the application giving the following information:

Write the preferred interview dates when the child, who lives abroad, is available.
If the child is almost 18 years old and close to “aging out,” request expedited or quick processing in the cover letter so the child can take the oath before his or her 18th birthday. Use red ink or bold lettering so USCIS will see it. For example, “AGe Out – 03/15/11.”
Mail the package.

USCIS reviews the application.

If the child appears to be eligible, USCIS will issue a notice that the application has been preliminarily approved. The notice will give an interview appointment date. The parent can present the appointment letter at the United States embassy in the country of residence to request a nonimmigrant visa if required for entry into the United States.

If anything is incomplete or missing from the application, USCIS will return the application with instructions on how to correct the problem.

If it appears that the child is not eligible for the certificate, USCIS will issue a Notice of Intent to Deny the Application, giving a specific number of days for the applicant to reply and correct the problem. If an application is denied, the decision can be appealed within 30 days using Form I-290B.

An interview is required for the U.S. citizen parent and the child. At the interview the USCIS officer verifies the information on the N-600. Documentation of the child’s lawful status in the United States must be provided at the interview. Once the information is verified, the USCIS officer will approve the application.

The child is required to take the oath of allegiance at the interview before receiving a Certificate of Citizenship. However, the oath may be waived if the child is unable to understand its meaning due to age or disability. The child becomes a citizen on the date of the oath. The child signs the certificate, if he or she is able. If not, the parent signs it on the child’s behalf.

Posted in Acquisition Of Citizenship, Certificate of Citizenship, Child Citizenship Act, Child Citizenship Act of 2000, Child is born in the United States or its territories, Citizenship for Children, Derivation Of Citizenship, Naturalization of Children, Naturalization Procedures for Children | Leave a comment

Automatic Acquisition of Citizenship after Birth (INA 320)

Posted on October 7, 2013 by Mike Baker

Automatic Acquisition of Citizenship after Birth (INA 320)

See INA 320. See Nationality Chart 3

INA: ACT 320 – Children born outside the United States and residing permanently in the United States; conditions under which citizenship automatically acquired 1/

Sec. 320. [8 U.S.C. 1431] (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1) .

FOOTNOTES FOR SECTION 320 INA: ACT 320 FN 1FN1 Secton 101(a) of Public Law 106-395, dated October 30, 2000, revised section 320 in its entirety.

A. General Requirements: Biological, Legitimated, or Adopted Child Automatically Acquiring Citizenship after Birth[1]

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 February 27, 2001:[2]

The child has at least one parent, including an adoptive parent[3] who is a U.S. citizen by birth or through naturalization;
The child is under 18 years of age;
The child is an LPR; and
The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.[4]

A stepchild who has not been adopted does not qualify for citizenship under this provision.

B. Legal and Physical Custody of U.S. Citizen Parent

Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:[5]

A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;
A biological child who currently resides with a surviving biological parent, if the other parent is deceased;
A biological child born out of wedlock who has been legitimated and currently resides with the parent;
An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;[6]
A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.

USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.

C. Acquisition of Citizenship Prior to Child Citizenship Act of 2000

The CCA applies only to those children born on or after February 27, 2001, or those who were under 18 years of age as of that date. Persons who were 18 years of age or older on February 27, 2001, do not qualify for citizenship under INA 320. For such persons, the law in effect at the time the last condition was met before reaching 18 years of age is the relevant law to determine whether they acquired citizenship.[7]

In general, former INA 321 applies to children who were already 18 years of age on February 27, 2001, but who were under 18 years of age in 1952, when the current Immigration and Nationality Act became effective.

In general, a child born outside of the United States to two foreign national parents, or one foreign national parent and one U.S. citizen parent who subsequently lost U.S. citizenship, acquires citizenship under former INA 321 if:

The child’s parent(s) meet one of the following conditions:

Both parents naturalize;
One surviving parent naturalizes if the other parent is deceased;
One parent naturalizes who has legal custody of the child if there is a legal separation of the parents; or
The child’s mother naturalizes if the child was born out of wedlock and paternity has not been established by legitimation
The child is under 18 years of age when his or her parent(s) naturalize; and
The child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.

As originally enacted in 1952, this section did not apply to adopted children of naturalized citizens.[8] Beginning on October 5, 1978, however, INA 321 became generally applicable to an adopted child if the child was residing in the United States at the time the adoptive parent or parents naturalized and the child was in the custody of his or her adoptive parents pursuant to a lawful admission for permanent residence.[9]

D. Application for Certificate of Citizenship (Form N-600)

A person who automatically obtains citizenship is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship.

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s U.S. citizen biological parent, adoptive parent, or legal guardian must submit the application.[10]

USCIS will issue proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so.[11]

E. Documentation and Evidence

The applicant must submit the following required documents unless such documents are already contained in USCIS administrative record or do not apply:[12]

The child’s birth certificate or record.

Marriage certificate of child’s parents, if applicable.

Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed, for example:

Divorce Decree, or

Death Certificate.

Evidence of United States citizenship of parent:

Birth Certificate,

Naturalization Certificate,

FS-240, Consular Report of Birth Abroad,

A valid unexpired United States Passport, or

Certificate of Citizenship.

Documents verifying legitimation according to the laws of the child’s residence or domicile or father’s residence or domicile if the child was born out of wedlock.

Documentation of legal custody in the case of divorce, legal separation, or adoption.

Copy of Permanent Resident Card or Alien Registration Receipt Card or other evidence of lawful permanent resident status, such as an I-551 stamp in a valid foreign passport or travel document issued by USCIS.

Copy of the full, final adoption decree, if applicable:

For an adopted child (not orphans or Hague Convention adoptees), evidence that the adoption took place before the age of 16 (or 18, as appropriate) and that the adoptive parent(s) had custody of, and lived with, the child for at least two years.[13]

For an adopted orphan, a copy of notice of approval of the orphan petition and supporting documentation for such petition (except the home study) or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IR-3 (Orphan adopted abroad by a U.S. citizen) or IR-4 (Orphan to be adopted by a U.S. citizen).[14]

For a Hague Convention adoptee, a copy of the notice of approval of Convention adoptee petition and its supporting documentation, or evidence that the child has been admitted for lawful permanent residence in the United States with the immigrant classification of IH-3 (Hague Convention Orphan adopted abroad by a U.S. citizen) or IH-4 (Hague Convention Orphan to be adopted by a U.S. citizen).[15]

If the child was admitted as an LPR as an orphan or Hague Convention adoption[16] (this evidence may already be in the child’s A-file).

Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.

An applicant does not need to submit documents that were submitted in connection with:

An immigrant visa application retained by the American Consulate for inclusion in the immigrant visa package; or

An immigrant petition or application and included in a USCIS administrative file.

If necessary, an officer may continue the application to request additional documentation to make a decision on the application.

F. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age.[17] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records or if the required documentation is submitted along with the application.[18]

G. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

If an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.[19]

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[20] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.

2. Denial of Application

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.[21] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes

1. See INA 320. See Nationality Chart 3.

2. February 27, 2001 is the effective date for these CCA amendments.

3. If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

4. See INA 320. See 8 CFR 320.2.

5. See 8 CFR 320.1.

6. If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

7. See Chapter 3, United States Citizens at Birth (INA 301 and 309).

8. See INA of 1952, Sec. 321(b), 66 Stat. at 245.

9. See Sec. 5 of the Act of October 5, 1978, Pub. L. 95-417. The 1978 amendment limited this benefit to a child adopted while under 16 years of age. This restriction was removed in 1981 by the Act of December 21, 1981 (Pub. L. 97-116) but is also included in the definition of “child” in INA 101(c).

10. See 8 CFR 320.3(a).

11. See Section G, Decision and Oath of Allegiance. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

12. See 8 CFR 320.3(b).

13. See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child.

14. If admitted as an IR-4 because there was no adoption abroad, the parent(s) must have completed the adoption in the United States. If admitted as an IR-4 because the parent(s) obtained the foreign adoption without having seen the child, the parent(s) must establish that they have either “readopted” the child or obtained recognition of the foreign adoption in the State of residence (this requirement can be waived if there is a statute or precedent decision that clearly shows that the foreign adoption is recognized in the State of residence). See 8 CFR 320.1.

15. If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

16. See INA 101(b)(1).

17. See 8 CFR 320.4.

18. See 8 CFR 341.2. See Section E, Documentation and Evidence.

19. See 8 CFR 320.5(a) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

20. See INA 337(a). See 8 CFR 341.5(b).

21. See 8 CFR 320.5(b) and 8 CFR 103.3(a).

Resources

Legal Authorities
INA 101(c) – Definition of child for citizenship and naturalization
INA 320, 8 CFR 320 – Children residing permanently in the United States

Posted in Automatic Acquisition of Citizenship after Birth (INA 320), Certificate of Citizenship, Citizenship and Naturalization policies and procedures, Citizenship for Children, United States Citizens at Birth | Leave a comment

General Provisions for Acquisition of Citizenship for Children Born Abroad

Posted on October 3, 2013 by Mike Baker

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
301(c)	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
301(d)	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
301(f)	Unknown parentage	Child is found in the United States while under 5 years of age	At Birth
301(g)	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
301(h)	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)
309(a)	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)
309(c)	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)
320	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
322	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

Footnotes

1. [^]

See INA 301, INA 320, and INA 322.

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

Posted in Acquisition and Derivation, General Provisions for Acquisition of Citizenship for Children Born Abroad | Leave a comment

Nationals and Citizens of The United States At Birth

Posted on September 27, 2013 by Mike Baker

INA: ACT 301 – NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States. 302 persons born in Puerto Rico on or after April 11, 1899

See INA 301. See Nationality Chart 1.

See INA 309. See Nationality Chart 2.

United States Citizens at Birth (INA 301 and 309)

A. General Requirements for Acquisition of Citizenship at Birth

A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a person born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.^[1] See INA 301(a) and INA 301(b). Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See 8 CFR 101.3.

In general, a person born outside of the United States may acquire citizenship at birth if:

One parent is a U.S. citizen; and
The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision.^[2] Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).

Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship.^[3] The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.

An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years.^[4] Officers should use the Nationality Charts to assist with the adjudication of these applications. The following sections provide the current law.

B. Child Born in Wedlock^[5] See INA 301. See Nationality Chart 1.

1. Child of Two U.S. Citizen Parents^[6] See INA 301(c).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

Both of the child’s parents are U.S. citizens; and
At least one parent had resided in the United States or one of its outlying possessions.

2. Child of U.S. Citizen Parent and U.S. National^[7] See INA 301(d).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a U.S. citizen and the other parent is a U.S. national; and
The U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least one year.

3. Child of U.S. Citizen Parent and Foreign National Parent^[8] See INA 301(g).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a foreign national and the other parent is a U.S. citizen; and
The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.

Time abroad counts as physical presence in the United States if the time abroad was:

As a member of the U.S. armed forces in honorable status;
Under the employment of the U.S. government or other qualifying organizations; or
As a dependent unmarried son or daughter of such persons.

4. Child of a U.S. Citizen Mother and Foreign National Father^[9] See INA 301(h).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if:

The child was born before noon (Eastern Standard Time) May 24, 1934;
The child’s father is a foreign national;
The child’s mother was a U.S. citizen at the time of the child’s birth; and
The child’s U.S. citizen mother resided in the United States prior to the child’s birth.

C. Child Born Out of Wedlock^[10] See INA 309. See Nationality Chart 2.

Child of a U.S. Citizen Father

The provisions listed above^[11] See INA 301 (c), INA 301(d), INA 301(e), and INA 301(g). for a child born in wedlock apply to a child born out of wedlock outside of the United States claiming citizenship through a U.S. citizen father if:

A blood relationship between the child and the father is established by clear and convincing evidence;

The child’s father was a U.S. citizen at the time of the child’s birth;

The child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and

One of the following criteria is met before the child reaches 18 years of age:

- The child is legitimated under the law of his or her residence or domicile;
- The father acknowledges in writing and under oath the paternity of the child; or
- The paternity of the child is established by adjudication of a competent court.

In addition, the residence or physical presence requirements contained in the relevant paragraph of INA 301 continue to apply to children born out of wedlock claiming citizenship through their fathers.

Child of a U.S. Citizen Mother

A child born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:

The child was born after December 23, 1952;
The child’s mother was a U.S. citizen at the time of the child’s birth; and
The child’s U.S. citizen mother was physically present in the United States or outlying possession for one continuous year prior to the child’s birth.^[12] See INA 309(c).

D. Application for Certificate of Citizenship (Form N-600)

A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship.^[13] See 8 CFR 341.1.

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child’s U.S. citizen parent or legal guardian must submit the application.^[14] See 8 CFR 341.1.

USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so.^[15] See Section F, Decision and Oath of Allegiance. See 8 CFR 341.5(b).

E. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or legal guardian if the application is filed on behalf of a child under 18 years of age.^[16] See 8 CFR 341.2(a)(2). USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant’s eligibility is already included in USCIS administrative records, or if the application is accompanied by one of the following:

Department of State Form FS-240 (Consular Report of Birth Abroad of a U.S. Citizen);
Applicant’s unexpired U.S. Passport issued initially for a full five or ten-year period; or
Certificate of Naturalization of the applicant’s parent or parents.^[17] See 8 CFR 341.2(a).

F. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

If an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.^[18] See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.^[19] See INA 337(a). See 8 CFR 341.5(b). USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.

2. Denial of Application

If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.^[20] See 8 CFR 341.5(d) and 8 CFR 103.3(a). An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes

1. [^]

See INA 301(a) and INA 301(b). Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See 8 CFR 101.3.

2. [^]

Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).

3. [^]

The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.

4. [^]

Officers should use the Nationality Charts to assist with the adjudication of these applications.

5. [^]

See INA 301. See Nationality Chart 1.

6. [^]

See INA 301(c).

7. [^]

See INA 301(d).

8. [^]

See INA 301(g).

9. [^]

See INA 301(h).

10. [^]

See INA 309. See Nationality Chart 2.

11. [^]

See INA 301 (c), INA 301(d), INA 301(e), and INA 301(g).

12. [^]

See INA 309(c).

13. [^]

See 8 CFR 341.1.

14. [^]

See 8 CFR 341.1.

15. [^]

See Section F, Decision and Oath of Allegiance. See 8 CFR 341.5(b).

16. [^]

See 8 CFR 341.2(a)(2).

17. [^]

See 8 CFR 341.2(a).

18. [^]

See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

19. [^]

See INA 337(a). See 8 CFR 341.5(b).

20. [^]

See 8 CFR 341.5(d) and 8 CFR 103.3(a).

A child born abroad to two U.S. citizens acquires U.S. citizenship at birth if, before the child’s birth, one of the parents had a residence in the United States or its outlying possessions. No specific period of residence is required.

SPECIAL REQUIREMENTS FOR CHILDREN To submit an application for a child under age 16 both parents or the child’s legal guardian(s) must appear and present the following: – Evidence of the child’s U.S. citizenship – Evidence of the child’s relationship to parents/guardian(s), AND – Parental/guardian identification.

IF ONLY ONE PARENT APPEARS, YOU MUST ALSO SUBMIT ONE OF THE FOLLOWING: – Second parent’s notarized written statement or DS-3053 (including the child’s full name and date of birth) consenting to the passport issuance for the child. Statement can not be more than 3 months old and must come with a photocopy of the front and back side of the second parent’s identification, OR – Second parent’s death certificate if second parent is deceased, OR – Primary evidence of sole authority to apply, OR – A written statement or DS-3053 (made under penalty of perjury) explaining in detail the second parent’s unavailability. AS DIRECTED BY REGULATION 22 CFR 51.21 AND 51.28: – Each minor child applying for a passport book and/or passport card must appear in person.

1. PROOF OF U.S. CITIZENSHIP

APPLICANTS BORN IN THE UNITED STATES: Submit a previous U.S. passport or certified birth certificate. Passports that are limited in validity will need to be supplemented by other evidence. A birth certificate must include your full name, date and place of birth, sex, date the birth record was filed, the seal or other certification of the official custodian of such records (state, country, or city/town office), and the full names of your parent(s). – If the birth certificate was filed more than 1 year after the birth: It must be supported by evidence described in the next paragraph. – If no birth record exists: Submit a registrar’s notice to that effect. Also, submit a combination of the following evidence: an early baptismal or circumcision certificate, hospital birth record, early census, school, medical, or family Bible records, or newspapers or insurance files. Notarized affidavits of persons having knowledge of your birth may be submitted in addition to some of the records listed above. Evidence should include your given name and surname, date and/or place of birth, and the seal or other certification of the office (if customary) and the signature of the issuing official. Visit travel.state.gov for details.

APPLICANTS BORN OUTSIDE THE UNITED STATES: Submit a previous U.S. passport, Certificate of Naturalization, Certificate of Citizenship, Report of Birth Abroad, or evidence described below: – If you Claim Citizenship through Naturalization of Parent(s): Submit the Certificate(s) of Naturalization of your parent(s), your foreign birth certificate (and official translation if the document is not in English), and proof of your admission to the United States for permanent residence. – If you Claim Citizenship through Birth Abroad to One U.S. Citizen Parent: Submit a Consular Report of Birth (Form FS-240), Certification of Birth (Form DS-1350 or FS-545), or your foreign birth certificate (and official translation if the document is not in English), proof of citizenship of your parent, your parents’ marriage certificate, and an affidavit showing all of your U.S. citizen parents’ periods and places of residence/physical presence in the United States and abroad before your birth. – If you Claim Citizenship through Birth Abroad to Two U.S. Citizen Parents: Submit a Consular Report of Birth (Form FS-240), Certification of Birth (Form DS-1350 or FS-545), or your foreign birth certificate (and official translation if the document is not in English), parents’ marriage certificate, proof of your parents’ citizenship, and an affidavit showing all of your U.S. citizen parents’ periods and places of residence/physical presence in the United States and abroad before your birth. – If you Claim Citizenship through Adoption by a U.S. Citizen Parent(s): Submit evidence of your permanent residence status, full and final adoption, and your U.S. citizen parent(s) evidence of legal and physical custody. (NOTE: Acquisition of U.S. citizenship for persons born abroad and adopted only applies if the applicant was born on or after 02/28/1983.) ADDITIONAL EVIDENCE: You must establish your citizenship to the satisfaction of the acceptance agent and Passport Services. We may ask you to provide additional evidence to establish your claim to U.S. citizenship. NOTE: You may receive your newly issued document and your returned citizenship evidence in two separate mailings. If you are applying for both a passport book and passport card, you may receive three separate mailings; one with your returned citizenship evidence; one with your newly issued passport book, and one with your newly issued passport card.

2. PROOF OF IDENTITY You may submit items such as the following containing your signature AND a photograph that is a good likeness of you: previous or current U.S. passport book; previous or current U.S. passport card; driver’s license (not temporary or learner’s license); Certificate of Naturalization; Certificate of Citizenship; military identification; or federal, state, or municipal government employee identification card. Temporary or altered documents are not acceptable. You must establish your identity to the satisfaction of the acceptance agent and Passport Services

3. RECENT COLOR PHOTOGRAPH Submit a color photograph of you alone, sufficiently recent to be a good likeness of you (taken within the last six months), and 2×2 inches in size. The image size measured from the bottom of your chin to the top of your head (including hair) should not be less than 1 inch and not more than 1 3/8 inches. The photograph must be color, clear, with a full front view of your face, and printed on thin paper with a plain light (white or off-white) background. The photograph must be taken in normal street attire, without a hat, head covering, or dark glasses unless a signed statement is submitted by the applicant verifying the item is worn daily for religious purposes or a signed doctor’s statement is submitted verifying the item is used daily for medical purposes.

If you are under sixteen years of age: Your passport will be valid for 5 years from the date of issue except where limited by the Secretary of State to a shorter period. (see information below about the additional cost for expedited service.)

FEES: http://travel.state.gov/passport/fees/fees_837.html

Please refer to these pages: Passport Application: DS 11 http://travel.state.gov/passport/forms/ds11/ds11_842.html

http://travel.state.gov/passport/get/minors/minors_834.html

FS-240 Vital Records http://travel.state.gov/passport/get/first/first_825.html

Posted in INA 301 and 309, Nationals and CIitizens of The United States At Birth, United States Citizens at Birth | Leave a comment

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Foreign-born children who did not automatically acquire citizenship under INA 320 and who reside outside the United States with a U.S. citizen parent

A. General Requirements: Biological, Legitimated, or Adopted Child Residing Outside the United States[1] See Nationality Chart 4.

B. Eligibility to Apply on the Child’s Behalf

C. Physical Presence of the U.S. Citizen Parent or Grandparent[6] See INA 322(a)(2). See 8 CFR 322.2(a)(2).

1. Physical Presence of Child’s U.S. Citizen Parent

2. Exception for U.S. Citizen Member of the U.S. Armed Forces

3. Reliance on Physical Presence of Child’s U.S. Citizen Grandparent

D. Temporary Presence by Lawful Admission and Status in United States

1. Temporary Presence and Status Requirements

2. Exception for Child of U.S. Citizen Service Member of the U.S. Armed Forces

E. Application for Citizenship and Issuance of Certificate under Section 322 (Form N-600K)

F. Documentation and Evidence

G. Citizenship Interview and Waiver

H. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

2. Denial of Application

Footnotes

Resources

U.S Citizenship for Children: Birth, Acquisition, Derivation

Automatic Acquisition of Citizenship after Birth (INA 320)

General Provisions for Acquisition of Citizenship for Children Born Abroad

B. Background

C. Table of General Provisions

D. Legal Authorities

Footnotes

Nationals and Citizens of The United States At Birth

United States Citizens at Birth (INA 301 and 309)

A. General Requirements for Acquisition of Citizenship at Birth

B. Child Born in Wedlock[5] See INA 301. See Nationality Chart 1.

1. Child of Two U.S. Citizen Parents[6] See INA 301(c).

2. Child of U.S. Citizen Parent and U.S. National[7] See INA 301(d).

3. Child of U.S. Citizen Parent and Foreign National Parent[8] See INA 301(g).

4. Child of a U.S. Citizen Mother and Foreign National Father[9] See INA 301(h).

C. Child Born Out of Wedlock[10] See INA 309. See Nationality Chart 2.

D. Application for Certificate of Citizenship (Form N-600)

E. Citizenship Interview and Waiver

F. Decision and Oath of Allegiance

1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age

2. Denial of Application

Footnotes

Phone: 312-714-2800

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A. General Requirements: Biological, Legitimated, or Adopted Child Residing Outside the United States^[1] See Nationality Chart 4.

C. Physical Presence of the U.S. Citizen Parent or Grandparent^[6] See INA 322(a)(2). See 8 CFR 322.2(a)(2).

B. Child Born in Wedlock^[5] See INA 301. See Nationality Chart 1.

1. Child of Two U.S. Citizen Parents^[6] See INA 301(c).

2. Child of U.S. Citizen Parent and U.S. National^[7] See INA 301(d).

3. Child of U.S. Citizen Parent and Foreign National Parent^[8] See INA 301(g).

4. Child of a U.S. Citizen Mother and Foreign National Father^[9] See INA 301(h).

C. Child Born Out of Wedlock^[10] See INA 309. See Nationality Chart 2.