Chapter 2 - Definition of Child and Residence 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 Immigration and Nationality Act (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]

One 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 not eligible for citizenship or naturalization through the U.S. citizen stepparent unless the stepparent adopts the stepchild and the adoption meets certain requirements.[4]

Below are definitions of child that apply to citizenship and naturalization. The applicable definition depends in part on whether a child is claiming citizenship through the mother or father. A child generally must be under the age of 18 and unmarried to acquire citizenship after birth.

Definition of Child of a U.S. Citizen Mother

To be considered a child of a U.S. citizen mother, the child must be:

  • The genetic child of a U.S. citizen mother;

  • The adopted (including an orphan or Hague Convention adoptee) child of a U.S. citizen mother;[5]

  • The child of a non-genetic gestational U.S. citizen mother (person who carried and gave birth to the child)[6] who is recognized by the relevant jurisdiction as the child’s legal parent;[7] or

  • The child of a U.S. citizen mother who is married to the child’s genetic or gestational parent at the time of the child’s birth (even if no genetic or gestational relationship exists with the U.S. citizen mother) if both parents are recognized by the relevant jurisdiction as the child’s legal parents.

Definition of Child of a U.S. Citizen Father

To be considered a child of a U.S. citizen father, the child must be:

  • The legitimated[8] child of a U.S. citizen father; 

  • The adopted (including an orphan or Hague Convention adoptee) child of a U.S. citizen father;[9]

  • The child of a U.S. citizen father who is married to the child’s genetic or gestational parent at the time of the child’s birth (even if no genetic or gestational relationship exists with the U.S. citizen father) if both parents are recognized by the relevant jurisdiction as the child’s legal parents; or

  • If the child was born out of wedlock and claiming U.S. citizenship at birth, then the evidence must demonstrate that the requirements under INA 309 are met.[10]

For citizenship purposes, a person is considered a “parent,” “mother,” or “father,” where their child satisfies one of the definitions of child provided above.

The term “genetic child” refers to a child who shares genetic material with the parent, and “gestational parent”[11] is the person who carries and gives birth to the child. A genetic parent, as well as a non-genetic gestational parent who is recognized by the relevant jurisdiction as the child’s legal parent, is included within the phrase “natural” parent as referenced in the INA.[12]

In general, absent other evidence, USCIS considers a child’s birth certificate as recorded by a proper authority as sufficient evidence to determine a child’s genetic or gestational relationship to the parent (or parents). The child’s parent (or parents) who is included in the birth certificate is generally presumed to have legal custody of the child absent other evidence.[13]

In addition to meeting the definition of a child (as described above), 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.[14]

B. Legitimated Child

Legitimation means “placing a child born out of wedlock in the same legal position as a child born in wedlock.”[15] Legitimation is a legal concept that generally refers to father-child relationships.

Generally, unless otherwise specified by the specific provision, if the father or child had various residences or domiciles before the child reached 16, 18, or 21 years of age (depending on the applicable provision), then the laws of the various places of residence or domicile must be analyzed to determine whether the requirements for legitimation have been met.[16] If the requirement for a child to be legitimated before a certain age is more generous in a particular citizenship statute than the requirement of legitimation before age 16 in the definition of child, USCIS allows legitimation until the age requirement in the applicable citizenship statute.[17]

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.[18]

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 either the child's residence or domicile, or the law of the child’s father's residence or domicile, depending on the applicable provision;[19]

  • The child is legitimated before he or she reaches 16 years of age (except for certain cases where the child may be legitimated before reaching 18 or 21 years of age);[20] and

  • The child is in the legal custody of the legitimating parent or parents at the time of the legitimation.[21]

A non-genetic gestational mother may legitimate her child. While legitimation has been historically applied to father-child relationships, the gestational mother of a child conceived through Assisted Reproductive Technology (ART) may be required to take action after the birth of the child to formalize the legal relationship. Whether such action is required depends on the law of the relevant jurisdiction.

Post-birth formalization of the legal relationship between a gestational mother and her child should be viewed as relating back to the time of birth. This is because the relevant jurisdiction’s recognition of the legal relationship between a non-genetic gestational mother and her child is based on the circumstances of the child’s birth, including that she carried and bore the child of whom she is the legal parent. This rule applies unless it is otherwise specified in the law of the relevant jurisdiction.[22]

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 is a child who has met the requirements applicable for adopted children[23] and has been adopted through a full, final, and complete adoption.[24]

To meet the definition of adoption for immigration purposes, an adoption must create a legal status comparable to that of a natural legitimate child between the adopted child and the adoptive parent.[25] An adoption must be valid under the law of the country or place granting the order and must:

  • Terminate the legal parent-child relationship between the child and the prior legal parent(s);

  • Create a legal permanent parent-child relationship between the child and the adoptive parent; and

  • Comply with the law of the country or place granting the adoption.

D. Assisted Reproductive Technology

1. Background

Assisted Reproductive Technology (ART) refers to fertility treatments where either the egg or sperm, or both, is handled outside the body. ART includes intrauterine insemination (IUI) and in vitro fertilization (IVF), among other reproductive technology procedures.[26] In these procedures, the parent or parents may use a combination of their own genetic material or donated genetic material (donated egg, sperm, or both) in order to conceive a child.[27] ART allows a gestational parent to bear a child to whom the parent does not have a genetic relationship through the use of a donor egg. As such, a gestational parent could have a biological relationship to the child (by carrying and giving birth to the child) but not a genetic relationship.

Children Born Outside the United States Through ART

A parent who is the gestational and legal parent of a child under the law of the relevant jurisdiction at the time of the child’s birth may transmit U.S. citizenship to the child if all other requirements are met.[28]

In addition, a non-genetic, non-gestational legal parent of a child born through ART may transmit U.S. citizenship to the child if the parent is married to the child’s genetic or gestational parent at the time of the child’s birth and both parents are recognized by the relevant jurisdiction as the child’s legal parents.[29]

2. Child Born Outside the United States through Assisted Reproductive Technology to Legal Gestational Parent

A child born through ART may acquire U.S. citizenship from the non-genetic gestational parent at the time of birth, or after birth, depending on the applicable citizenship or naturalization provision, if:

  • The child’s gestational parent is recognized by the relevant jurisdiction as the child’s legal parent at the time of the child’s birth; and

  • The child meets all other applicable requirements under the relevant citizenship or naturalization provision.

The relevant jurisdiction must recognize the gestational parent-child relationship as the legal parental relationship. Whether a parent is recognized as the legal parent is generally assessed under the jurisdiction of the child’s birth at the time of birth. In some jurisdictions, the non-genetic gestational parent is recognized as the legal parent without having to take any additional affirmative steps after birth. In other jurisdictions, a non-genetic gestational mother may be required to take certain action after the child’s birth to establish the legal relationship.

Post-birth formalization of the legal relationship between a non-genetic gestational parent and the child should be viewed as relating back to the time of birth. This is because the relevant jurisdiction’s recognition of the legal relationship between a non-genetic gestational parent and the child is based on the circumstances of the child’s conception and birth, including that the gestational parent carried and bore the child and the gestational parent is recognized as that child’s legal parent. This rule applies unless it is otherwise specified in the law of the relevant jurisdiction, such as in an applicable court order.

The law of the relevant jurisdiction governs whether the non-genetic gestational parent is the legal parent for purposes of U.S. immigration law. Importantly, a non-genetic gestational parent who is not the legally recognized parent may not transmit U.S. citizenship to the child. USCIS follows any applicable court judgment of the relevant jurisdiction if parentage is disputed. In addition, USCIS does not adjudicate cases involving children whose legal parentage remains in dispute unless there has been a final determination by a proper authority. Therefore, USCIS may deny a case in which the legal parentage is in dispute, and the applicant may then file a motion to reopen[30] upon resolution by the proper authority.

E. Definition of U.S. Residence

The term residence is defined in the INA as the person's principal actual dwelling place in fact, without regard to intent.[31] A person is not required to live in a particular place for a specific period of time in order for that place to be considered his or her “residence.” However, the longer a stay in a particular place, the more likely it is that a person can establish that place is his or her residence.

1. Difference between Residence and Physical Presence

The term residence should not be confused with physical presence, which refers to the actual time a person is in the United States, regardless of whether he or she has a residence in the United States.[32] Although some provisions related to naturalization and citizenship require specific time periods of physical presence, residence, or both,[33] in contrast, there is no specific time period of residence required for purposes of acquiring citizenship where a child is born outside the United States of two U.S. citizen parents.[34]

For example, a person who spent time travelling in the United States for a year living in different hotel rooms in different cities or towns every week and who did not own or rent any property or have another principal dwelling place in the United States, would likely be able to establish 1 year of physical presence. However, without additional evidence of a principal actual dwelling place in the United States, that person could not establish residence in the United States. The table below provides a few examples on how travel would affect the physical presence and the residence requirements. However, the examples are not dispositive and individual cases will be determined based on the individual merits and evidence presented.

Examples Illustrating Physical Presence and Residence in the United States

Scenarios

Physical Presence

Residence

U.S. citizen parent owns a home and works in a foreign country. Parent travels to the United States and:

  • Stays 2 weeks with a cousin in New York,

  • Stays 2 weeks in New York with his or her parents, and

  • Travels to Florida on vacation for 2 weeks.

6 weeks

No U.S. residence

(Residence is outside the United States)

Parent is a U.S. citizen born in a foreign country, who never lived in or visited the United States. His child moved to the United States as an adult and claimed U.S. citizenship.

No physical presence[35]

No U.S. residence

As a child, U.S. citizen parent came to the United States for 3 consecutive summers to attend a 2-month long camp. The parent lived and went to school in a foreign country for the rest of the year.

6 months

No U.S. residence

(Residence is outside the United States)

U.S. citizen parent worked in the United States for 9 months in a year for 8 years out of a 9-year period. (Parent returned to Mexico to spend the remaining 3 months of each year with family, who never visited the United States.)

9 months in a year for 8 years

U.S. residence established[36]

2. Special Considerations

Various circumstances may affect whether USCIS considers a person to be residing in the United States, and therefore whether a U.S. citizen may transmit citizenship to his or her children.

U.S. Citizens who were Born, But Did Not Reside, in the United States

A U.S. citizen may have automatically acquired U.S. citizenship based on birth in the United States,[37] but never actually resided in the United States. This U.S. citizen will not have established residence in the United States, and may be unable to transmit U.S. citizenship to his or her own children.

For example, if the U.S. citizen, still having never resided in the United States, subsequently marries another U.S. citizen who never resided in the United States, and they give birth to a child outside the United States, the child will not acquire citizenship at birth under INA 301(c) because neither U.S. citizen parent can show the requisite residence in the United States. However, if the U.S. citizen parent had returned to the United States after his or her birth and established residence before giving birth to the child outside the United States, then he or she may be able to meet the residence requirement based on that period of residence and transmit U.S. citizenship to his or her children.

Children of Armed Forces Members or U.S. Government Employees (or their Spouses)

Certain children of U.S. armed forces members or U.S. government employees (or their spouses) who are residing outside the United States are exempt from the requirement to be residing in the United States for purposes of acquiring citizenship under INA 320.[38]

Commuters and Temporary Visits to the United States

Residence is more than a temporary presence or a visit to the United States. Therefore, temporary presences and visits are insufficient to establish residence for the purposes of transmitting citizenship. For example, someone who resides along the border in Mexico or Canada, but works each day in the United States, cannot use his or her workplace to establish a residence.

Vacations or brief stays in the United States do not qualify as residence in the United States. However, attendance at school, college, or university in the United States for an extended period of time may be considered as residence in the United States depending upon the totality of the circumstances.[39]

Owning or Renting Property

A person does not need to own or rent property in the United States in order to establish residence. In addition, owning or renting property outside of the United States does not automatically establish lack of residence in the United States. Owning and renting property in the United States may help to establish residence in the United States if the person also establishes that he or she actually lived in that property, for example. A person who owns property but never lived in the property would not be able to establish residence based on owning that property.

3. Evidence

A U.S. citizen who was born in the United States generally meets the residence requirement as long as he or she can present evidence to demonstrate that his or her mother was not merely transiting through or visiting the United States at the time of his or her birth.[40] For example, a long form birth certificate is sufficient evidence if it shows a U.S. address listed as the mother’s residence at the time of the U.S. citizen’s birth.

If a U.S. citizen’s birth certificate indicates that his or her mother’s address was outside of the United States at the time of the birth, USCIS may find that the U.S. citizen does not meet the residence requirement unless the U.S. citizen can prove U.S. residence.

Documents that can help demonstrate residence include, but are not limited to, the following:

  • U.S. marriage certificate indicating the address of the bride and groom;

  • Property rental leases, property tax records, and payment receipts;

  • Deeds;

  • Utility bills;

  • Automobile registrations;

  • Professional licenses;

  • Employment records or information;

  • Income tax records and income records, including W-2 salary forms;

  • School transcripts;

  • Military records; and

  • Vaccination and medical records.

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 [12 USCIS-PM H.2(C)].

[^ 5] The child must satisfy the requirements applicable to adopted children under INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

[^ 6] A U.S. citizen transgender man who carries and gives birth to a child is considered to be a parent for immigration purposes, if recognized in the relevant jurisdiction as the legal parent. These cases should be adjudicated in the same manner as cases involving a U.S. citizen mother because the U.S. citizen has carried and birthed the child. See INA 309(c).

[^ 7] The law of the relevant jurisdiction governs whether the non-genetic parent is the legal parent for purposes of U.S. immigration law. A non-genetic U.S. citizen parent, who is not a legally recognized parent of the child, may not transmit U.S. citizenship to the child. USCIS follows any applicable court judgment of the relevant jurisdiction if parentage is disputed. In addition, USCIS does not adjudicate cases involving children whose legal parentage remains in dispute unless there has been a determination by a proper authority.

[^ 8] A child can be legitimated under the laws of the child’s residence or domicile, or under the laws of the father’s residence or domicile. See INA 101(c). A person’s “residence” is the person’s place of general abode, that is, the principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s “domicile” refers to a “person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” See Black’s Law Dictionary (11th ed. 2019). In most cases, a person’s residence is the same as a person’s domicile. 

[^ 9] The child must satisfy the requirements applicable to adopted children under INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

[^ 10] See Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born out of Wedlock [12 USCIS PM H.3(C)].

[^ 11] A transgender man giving birth to a child is considered to be a parent, if recognized in the relevant jurisdiction as the legal parent.

[^ 12] See INA 101(b) and INA 101(c). A “natural” parent may be a genetic or a gestational parent (who carries and gives birth to the child) who is recognized by the relevant jurisdiction as the child’s legal parent. 

[^ 13] The child’s parent(s) who are named on the birth certificate may not have legal custody of the child in some cases, such as when the child is in the legal custody of a state or federal entity, a third party, or the child has been adopted. For example, in certain cases, a court may terminate a parent’s parental rights, or a parent may relinquish parental rights depending on the laws of the relevant jurisdiction.

[^ 14] See Chapter 3, U.S. Citizens at Birth (INA 301 and INA 309) [12 USCIS-PM H.3]; Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4]; and Chapter 5, Child Residing Outside of the United States (INA 322) [12 USCIS-PM H.5].

[^ 15] See Matter of Moraga (PDF), 23 I&N Dec. 195, 197 (BIA 2001).

[^ 16] Importantly, certain citizenship provisions limit the place of legitimation to the child’s residence. See INA 309(a)(4)(A). In such cases, only the law of the place of residence is analyzed to determine whether the requirements for legitimation have been met.

[^ 17] For example, the INA 320 requirements must be met before age 18, while the definition of child at INA 101(c) requires legitimation before age 16. In this case, USCIS would consider a child who was legitimated at age 17 to be eligible for citizenship under INA 320.

[^ 18] See INA 101(c)(1).

[^ 19] 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.”

[^ 20] For example, the current version of INA 309 allows for legitimation until the age of 18, while INA 101(c) requires legitimation by the age of 16.

[^ 21] See INA 101(c)(1). See also Matter of Rivers (PDF), 17 I&N Dec. 419, 422 (BIA 1980) (presuming a legitimated child to be in the legal custody of the legitimating parent).

[^ 22] See Section D, Assisted Reproductive Technology [12 USCIS-PM H.2(D)].

[^ 23] The child must meet the requirements for family-based adoption petitions at INA 101(b)(1)(E), orphans at INA 101(b)(1)((F), or Hague Convention adoptees at INA 101(b)(1)(G).

[^ 24] See 8 CFR 320.1. See 8 CFR 322.1.

[^ 25] See Matter of Mozeb (PDF), 15 I&N Dec. 430 (BIA 1975).

[^ 26] See Fertility Clinic Success Rate and Certification Act of 1992 (FCSRCA), Pub. L. 102-493 (PDF), 106 Stat. 3146 (October 24, 1992).

[^ 27] In addition, a couple may use a gestational carrier (also called a gestational surrogate). A gestational surrogate is a person who gestates, or carries, an embryo that was formed from the egg of another person on behalf of the intended parent (or parents). The gestational carrier then gives birth to the child. The gestational carrier usually has a contractual obligation to return the infant to the intended legal parents. For additional information on ART, see the Centers for Disease Control (CDC) website.

[^ 28] Before USCIS implemented the gestational mother policy on October 28, 2014, a genetic relationship with a U.S. citizen parent was required in order for a child born outside the United States to acquire U.S. citizenship through that parent.

[^ 29] Children who meet the qualifications under this policy may acquire citizenship. If a Form N-600, Application for Certificate of Citizenship, or N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, has been previously denied but the child now meets these requirements, the applicant may file a motion to reopen or reconsider the denied decision on a Notice of Appeal or Motion (Form I-290B). See 8 CFR 103.5. In order to naturalize under INA 322, a child must be under age 18.

[^ 30] If a Form N-600 or N-600K has been previously denied but the child now meets these requirements, the applicant may file a motion to reopen or reconsider the denied decision on a Notice of Appeal or Motion (Form I-290B). See 8 CFR 103.5.

[^ 31] See INA 101(a)(33). See Savorgnan v. U.S., 338 U.S. 491, 506 (1950).

[^ 32] Examples of documentary evidence showing physical presence may include: academic transcripts, military records, official vaccination records, medical records, employment records, and lease agreements.

[^ 33] See INA 301. See INA 309. For more information on physical presence, see Part D, General Naturalization Requirements, Chapter 4, Physical Presence [12 USCIS-PM D.4]. 

[^ 34] See INA 301(c).

[^ 35] See Madar v. USCIS, 918 F.3d 120 (3rd Cir. 2019). In that case, the appellant argued that he was “constructively resident” in the United States because his U.S. citizen father lived during the relevant time in what was then Communist Czechoslovakia and was not free to leave the country. The court rejected that claim noting that physical presence requirements can be constructively satisfied only in extraordinary circumstances, such as, for example, when a U.S. government error causes citizenship to lapse, preventing the foreign-born parent from complying with the physical presence requirements.

[^ 36] See Alcarez-Garcia v. Ashcroft, 293 F.3rd 1155 (9th Cir. 2002).

[^ 37] See U.S. Const. amend XIV. See INA 301(a).

[^ 38] See Chapter 4, Section C, Children of Armed Forces Members or Government Employees (or their Spouses) [12 USCIS PM H.4(C)]. See INA 320(c) (added by the Citizenship for Children of Military Members and Civil Servants Act, Pub. L. 116-133 (PDF) (March 26, 2020)).

[^ 39] See Matter of M--, 4 I&N Dec. 418 (BIA 1951) (continuous stay in the United States as a college student for almost 3 years held to have residence in the United States for purposes of Section 201(g) of the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1137, 1139 (October 14, 1940)).

[^ 40] For more information on how the rules may vary depending on whether the U.S. citizen is the mother or father of a child seeking to acquire citizenship, see Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section A, General Requirements for Acquisition of Citizenship at Birth [12 USCIS-PM H.3(A)] through Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

Current as of September 16, 2021