A. Definition of Child
The definition of “child” for citizenship and naturalization differs from the definition used for other parts of the INA. See INA 101(b) and INA 101(c). The INA provides two different definitions of “child.”
One definition of child applies to approval of visa petitions, issuance of visas, and similar issues. See INA 101(b).
The other definition of child applies to citizenship and naturalization. See INA 101(c).
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. See Section C, Adopted Child.
In general, a child for the citizenship and naturalization provisions is:
An unmarried person under 21 years of age; and
The biological, legitimated, 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. 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. 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).
B. Legitimated Child See INA 101(c).
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; 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.”
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); See INA 309. See INA 101(b)(1)(E)(ii) and INA 101(b)(1)(F)(ii). and
The child is in the legal custody of the legitimating parent or parents at the time of the legitimation. See INA 101(c)(1).
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. See 8 CFR 320.1. See 8 CFR 322.1. This includes certain siblings of adopted children who are permitted to be adopted while under 18 years of age. See INA 101(b)(1)(E)(ii).
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); See INA 101(b)(1)(E)(ii) and INA 101(b)(1)(F)(ii). and
The child is in the legal custody of the adopting parent or parents at the time of the adoption. See INA 101(c)(1).
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). See Adjudicator’s Field Manual, Chapter 21.15, Adoption as a Basis for Immigration Benefits.
D. Orphan See INA 101(b)(1).
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. See 8 CFR 320.1. See 8 CFR 322.1.
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. See INA 101(b)(1)(E).
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.