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Chapter 5 - Child Residing Outside of the United States (INA 322)

A. General Requirements: Genetic, Legitimated, or Adopted Child Residing Outside the United States[1]

The Child Citizenship Act of 2000 (CCA) amended the INA to cover foreign-born children who did not automatically acquire citizenship under INA 320 and who generally reside outside the United States with a U.S. citizen parent.[2] 

A genetic, 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] 

  • The child’s U.S. citizen parent or citizen grandparent meets certain physical presence requirements in the United States or an outlying possession;[4] 

  • 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 of a person who does not object to the application if the U.S. citizen parent is deceased; and

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

A child born abroad through Assisted Reproductive Technology (ART) may be eligible for naturalization under INA 322 based on a relationship with his or her U.S. citizen gestational mother under INA 322 if:

  • The child’s gestational mother 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 requirements under INA 322, including that 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.[5] 

There are certain exceptions to these requirements for children of U.S. citizens in the U.S. armed forces accompanying their parent outside the United States on official orders.[6] 

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 5 years of the parent's death.[7] 

C. Physical Presence of the U.S. Citizen Parent or Grandparent[8]

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 5 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.[9] 

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 5 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;[10] 

  • The child is required to maintain the lawful status that he or she was admitted under while in the United States;[11] and

  • The child is required to take the Oath of Allegiance in the United States unless the oath requirement is waived.[12] 

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.[13] 

E. Children of U.S. Government Employees and Members of the Armed Forces Employed or Stationed Outside the United States

In addition to certain provisions for children of U.S. armed forces members and U.S. government employees stationed or employed outside the United States under INA 320, such U.S. citizen parents may apply for U.S. citizenship under INA 322 on behalf of their children under age 18 (if the children have not acquired citizenship under INA 320).[14] Children of members of the U.S. armed forces who are accompanying their parents outside of the United States on official orders may be eligible to complete all aspects of the naturalization proceedings outside the United States. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.[15]

F. 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 5 years after the death of the U.S. citizen parent.[16] 

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.

G. 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.[17] 

  • 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;​

    • Consular Report of Birth Abroad (FS-240);​

    • A valid unexpired U.S. 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.[18] 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 2 years.[19] 

    • 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).[20] 

    • 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).[21] 

  • 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. 

H. 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.[22] 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.[23] 

I. 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.[24] 

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.[25] 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.[26] An applicant may file an appeal within 30 days of service of the decision.

Footnotes


[^ 1] See Nationality Chart 4 [12 USCIS-PM H.3, Appendices Tab].

[^ 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 [12 USCIS-PM H.5(C)].

[^ 5] For a more thorough discussion, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

[^ 6] See INA 322(d).

[^ 7] 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 (PDF) (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.

[^ 8] See INA 322(a)(2). See 8 CFR 322.2(a)(2).

[^ 9] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits, Section C, Children of Military Members [12 USCIS-PM I.9(C)]. See INA 322(d). See 8 CFR 322.2(c).

[^ 10] See INA 322(a)(5). See 8 CFR 322.2(a)(5).

[^ 11] See INA 322(a)(5).

[^ 12] See INA 322(b). See Section I, Decision and Oath of Allegiance [12 USCIS-PM H.5(I)].

[^ 13] See Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits [12 USCIS-PM I.9]. See INA 322(d). See 8 CFR 322.2(c).

[^ 14] See INA 322(a). To be eligible for citizenship under INA 322, the child must be under 18 and “residing outside of the United States in the legal and physical custody of the applicant.” If the child has already acquired U.S. citizenship under INA 320, USCIS denies the Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K).

[^ 15] See INA 322(d).

[^ 16] See 8 CFR 322.3(a).

[^ 17] See 8 CFR 322.3(b).

[^ 18] See INA 322(d)(2).

[^ 19] See INA 101(b)(1)(E). See Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section C, Adopted Child [12 USCIS-PM H.2(C)].

[^ 20] 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.

[^ 21] If admitted as an IH-4, the parent(s) must have completed the adoption in the United States. 

[^ 22] See 8 CFR 322.4.

[^ 23] See 8 CFR 341.2. See Section G, Documentation and Evidence [12 USCIS-PM H.5(G)].

[^ 24] 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 [12 USCIS-PM J.2].

[^ 25] See INA 337(a). See 8 CFR 341.5(b).

[^ 26] See 8 CFR 322.5(b) and 8 CFR 103.3(a).

Resources

Legal Authorities

INA 101(b) - Definition of child

INA 101(c) - Definition of child for citizenship and naturalization

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