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Chapter 1 - Purpose and Background

A. Purpose

United States laws allow for children to acquire U.S. citizenship other than through birth in the United States. [1] 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] 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] 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] 

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] 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 an alien

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 an alien

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 3208 CFR 320 – Children residing permanently in the United States​ 

  • INA 3228 CFR 322 – Children residing outside the United States

Footnotes


[^ 1] See INA 301INA 320, and INA 322.

[^ 2] See Act of October 10, 1978, Pub.L. 95-432 (PDF), 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) [12 USCIS-PM H.4].

[^ 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. 

Resources

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

INA 332, 8 CFR 332 - Naturalization administration, executive functions

INA 341, 8 CFR 341 - Certificates of citizenship

Appendices

Appendix: History of Acquiring Citizenship under INA 320 for Children of U.S. Citizens who are Members of the U.S. Armed Forces, U.S. Government Employees, or their Spouses

Before October 29, 2019, USCIS considered children of members of the U.S. armed forces or U.S. government employees, who were stationed outside of the United States, to meet the requirement of “is residing in” the United States for the purpose of acquiring citizenship under INA 320.[1] This interpretation was consistent with the definition of “residence” for purposes of naturalization under INA 316.[2] Based on this treatment of U.S. government employees and their children in the context of naturalization under INA 316, USCIS determined that “residing in the United States” for purposes of acquisition of citizenship under INA 320 should likewise be interpreted to include children of U.S. military and government employees stationed outside of the United States who were residing with their parents.[3]

This interpretation, however, was inconsistent with other provisions of the Immigration and Nationality Act (INA), including the definition of “residence” at INA 101(a)(33) and language in INA 322(a) and INA 322(d), which suggested that the citizenship of military children residing outside of the United States should be considered under that provision rather than under INA 320. Effective October 29, 2019, USCIS amended its policy guidance to address these concerns, and determined that children of members of the U.S. armed forces or U.S. government employees stationed outside of the United States would not be eligible for citizenship acquisition under INA 320.[4]

On March 26, 2020, the Citizenship for Children of Military Members and Civil Servants Act was enacted,[5] amending INA 320, so that a child residing with his or her U.S. citizen parent, who is stationed outside of the United States as a member of the U.S. armed forces or a U.S. government employee, or is residing in marital union with a member of the U.S. armed forces or a U.S. government employee who is stationed outside of the United States, acquires citizenship under INA 320 if all requirements of INA 320(c) and INA 320(a)(1)-(2) are met. In line with the statute, USCIS rescinds its previous guidance, clarifying that these children are eligible to acquire citizenship under INA 320 if all other requirements under INA 320 are met.

The amendment to INA 320 applies to children who were under the age of 18 on March 26, 2020.

Footnotes


[^ 1] Even though the child of a member of the U.S. armed forces or U.S. government employee stationed outside of the United States may be eligible to apply for a Certificate of Citizenship under INA 322 since he or she resides outside of the United States, USCIS interpreted the child to meet residency requirements under INA 320 as well, which formerly required the child to be residing in the United States with his or her parent to acquire citizenship.

[^ 2] For example, U.S. government employees, including members of the U.S. armed forces, are eligible to apply for an exception to the continuous residence requirement for naturalization under INA 316 as long as their residency outside of the United States was on behalf of the U.S. government. See INA 316(b). See INA 316(a). See Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3].

[^ 3] See Policy Manual Technical Update, Child Citizenship Act and Children of U.S. Government Employees Residing Abroad (July 20, 2015); and Acquisition of Citizenship by Children of U.S. Military and Government Employees Stationed Abroad under Section 320 of the Immigration and Nationality Act (INA), No. 103, issued May 6, 2004.

[^ 4] See USCIS Policy Alert, Defining “Residence” in Statutory Provisions Related to Citizenship [PA-2019-05] (PDF, 308.45 KB). This Policy Alert has been superseded by Policy Manual updates to reflect changes made under Pub. L. 116-133 (PDF).

[^ 5] See Pub. L. 116-133 (PDF) (March 26, 2020).

Updates

POLICY ALERT - Residency Requirements for Children of Service Members and Government Employees Residing Outside of the United States for Purposes of Acquisition of Citizenship

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance in the USCIS Policy Manual regarding residency requirements under Section 320 of the Immigration and Nationality Act (INA), as amended by the Citizenship for Children of Military Members and Civil Servants Act.

Read More
Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.

Technical Update - Implementation of Policy Guidance on Defining “Residence” in Statutory Provisions Related to Citizenship

This technical update incorporates into Volume 12 the policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced August 28, 2019 addressing requirements for “residence” in statutory provisions related to citizenship. This guidance became effective October 29, 2019. 

Technical Update - Replacing the Term “Foreign National”

This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].

POLICY ALERT - Defining “Residence” in Statutory Provisions Related to Citizenship

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address requirements for “residence” in statutory provisions related to citizenship, and to rescind previous guidance regarding children of U.S. government employees and members of the U.S. armed forces employed or stationed outside the United States. This guidance becomes effective October 29, 2019.

Read More
POLICY ALERT - Effect of Assisted Reproductive Technology (ART) on Immigration and Acquisition of Citizenship Under the Immigration and Nationality Act (INA)

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance relating to the use of Assisted Reproductive Technology (ART).

Read More
POLICY ALERT - Comprehensive Citizenship and Naturalization Policy Guidance

USCIS is issuing updated and comprehensive citizenship and naturalization policy guidance in the new USCIS Policy Manual.

Read More