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 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 5 years of the parent's death. [6] 

C. Physical Presence of the U.S. Citizen Parent or Grandparent [7]

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. [8] 

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;[9] 

  • The child is required to maintain the lawful status that he or she was admitted under while in the United States; [10] and

  • The child is required to take the Oath of Allegiance in the United States unless the oath requirement is waived. [11] 

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. [12] 

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

Effective October 29, 2019, children residing abroad with their U.S. citizen parents who are U.S. government employees or members of the U.S. armed forces stationed abroad are not considered to be residing in the United States for acquisition of citizenship. Similarly, leave taken in the United States while stationed abroad is not considered residing in the United States even if the person is staying in property he or she owns.

Therefore, U.S. citizen parents who are residing outside the United States with children who are not U.S. citizens should apply for U.S. citizenship on behalf of their children under INA 322,[13] and must complete the process before the child’s 18th birthday.[14] The child of a 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 naturalization.[15]

Applications filed on or after October 29, 2019 are subject to this policy. The policy in place before October 29, 2019 applies to applications filed before that date. Children who have already been recognized through the issuance of a Certificate of Citizenship as having acquired U.S. citizenship under INA 320 are not affected by this policy change. 

Background

Children born outside the United States who did not acquire U.S. citizenship at birth have two methods by which they could become U.S. citizens. The first method permits children to automatically become U.S. citizens under INA 320. Among other eligibility criteria, the statute requires the child to be “residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.”[16] 

The second method is for the U.S. citizen parent of a child “who has not acquired citizenship automatically under section 320” to apply for U.S. citizenship on the child’s behalf under INA 322. To be eligible for citizenship under INA 322, the statute requires the child to be “residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).”[17] 

USCIS policy previously provided that children of U.S. government employees and members of the U.S. armed forces who were employed or stationed outside of the United States should be considered to be both “residing in the United States” for purposes of INA 320 and “residing outside of the United States” for purposes of INA 322.[18] Their parents were permitted to file an Application for Certificate of Citizenship (Form N-600) on their behalf and obtain a Certificate of Citizenship showing that they had acquired citizenship automatically, or their parents were permitted to file an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) in order to apply for naturalization on the child’s behalf.

USCIS previously arrived at the interpretation that children of members of the U.S. armed forces could be considered as “residing in the United States” when stationed abroad by comparison to naturalization under INA 316.

For purposes of naturalization under INA 316, eligibility requirements include continuous residence in the United States for at least 5 years after being lawfully admitted for permanent residence.[19] An absence from the United States for a continuous period of 1 year of more during the period for which continuous residence is required, breaks the continuity of such residence, except in certain cases when the absence is related to qualifying employment, including an absence by a U.S. government employee who establishes that he or she is absent from the United States on behalf of the U.S. government.[20] The spouse and dependent unmarried sons and daughters of such an employee are also entitled to this exception excusing the absence from the United States during which they are residing outside of the United States as dependent members of the U.S. government employee’s household.

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 naturalization under INA 320 should likewise be interpreted to include children of U.S. military and government employees stationed outside of the United States who are residing outside of the United States with their parents.

However, as of October 29, 2019, USCIS is no longer committed to this reasoning because the prior USCIS policy guidance is in conflict with several provisions of the Immigration and Nationality Act (INA), especially with changes to the acquisition of citizenship statutes that occurred in 2008, after the initial policy determination in 2004.

First, permitting a child to be eligible simultaneously for a Certificate of Citizenship under INA 320 and for naturalization under INA 322 conflicts with the language of INA 322(a), which states that a parent “may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under INA 320.”

Second, considering children who are living outside of the United States to be “residing in the United States” conflicts with the definition of “residence” at INA 101(a)(33), which defines “residence” as a person’s “principal, actual dwelling place in fact.”

Third, considering these children to be “residing in the United States” is at odds with INA 322(d), which was enacted in 2008,[21] 4 years after USCIS issued policy guidance on the topic. When Congress enacted INA 322(d), it provided for special procedures in cases involving the naturalization of “a child of a member of the Armed Forces of the United States who is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member.” Congress placed this provision under INA 322, which applies only to children “residing outside of the United States.” It did not provide similar language for such children to acquire citizenship under INA 320.

Furthermore, in the same legislation, Congress also explicitly provided that spouses of U.S. armed forces members who reside outside of the United States due to the member’s official orders are considered to be residing in the United States for naturalization purposes.[22] The fact that no similar provision was included for children of U.S. armed forces members in the acquisition of citizenship context is significant.[23]

Finally, the prior USCIS policy produced confusion in several respects. First, it may have resulted in inconsistent adjudications by USCIS officers adjudicating applications for certificates of citizenship, and U.S. Department of State (DOS) consular officers adjudicating passport applications. DOS has interpreted INA 320 to apply solely to children who are physically in the United States and does not recognize an exception by policy for children of U.S. military and U.S. government employees stationed outside of the United States.[24]

In addition, the policy resulted in confusion as to the date a child acquired U.S. citizenship, depending on what form the parent (a U.S. government employee or U.S. armed forces member employed or stationed outside of the United States) used: Form N-600K would result in naturalization proceedings under INA 322, while Form N-600 would result in automatic acquisition of citizenship under INA 320. Children who acquire U.S. citizenship automatically are citizens as of the date on which they meet all eligibility criteria under INA 320, but children who seek naturalization under INA 322 become citizens upon taking and subscribing to the oath of allegiance (or upon approval of the application if the oath is waived).

Under USCIS’ prior policy guidance, a child of a U.S. government employee or U.S. armed forces member who was employed or stationed outside of the United States could meet all of the eligibility criteria for acquiring citizenship under INA 320 while residing outside of the United States, but still seek to naturalize under INA 322. In such a case, the date on which the child became a citizen would have been unclear.

For all these reasons, USCIS rescinded the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered “residing in” the United States.

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. [25] 

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. [26] 

  • 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. [27] 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. [28] 

    • 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). [29] 

    • 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). [30] 

  • 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. [31] 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. [32] 

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. [33] 

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. [34] 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. [35] 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 [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. [^] 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.

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

8. [^] 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).

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

10. [^] See INA 322(a)(5).

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

12. [^] 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).

13. [^] See Chapter 9, Spouses, Children, and Surviving Family Benefits, Section C, Children of Military Members [12 USCIS-PM I.9(C)].

14. [^] See INA 322(a)(3).

15. [^] See INA 322(d).

16. [^] See INA 320(a)(3).

17. [^] See INA 322(a)(4).

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

19. [^] See INA 316(a). See Part D, General Naturalization Requirements, Chapter 3, Continuous Residence [12 USCIS-PM D.3].

20. [^] See INA 316(b).

21. [^] See National Defense Authorization Act for Fiscal Year 2008, Pub. L. 110-181 (PDF), 122 Stat 3 (January 28, 2008).

22. [^] See INA 319(e).

23. [^] See, for example, Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)) ("[W]here Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").

24. [^] See 8 FAM 301.10-2(A), Evidence of Citizenship for Children Born Abroad to U.S. Citizen Parent(s) Under INA 320 as amended by the Child Citizenship Act of 2000.

25. [^] See 8 CFR 322.3(a).

26. [^] See 8 CFR 322.3(b).

27. [^] See INA 322(d)(2).

28. [^] 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)].

29. [^] 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.

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

31. [^] See 8 CFR 322.4.

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

33. [^] 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].

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

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

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


No appendices available at this time.

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

October 29, 2019

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. 

AFFECTED SECTIONS

 

Technical Update - Replacing the Term “Foreign National”

October 08, 2019

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”].

AFFECTED SECTIONS

 

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

August 28, 2019

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.

AFFECTED SECTIONS

 

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

October 28, 2014

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

AFFECTED SECTIONS

 

POLICY ALERT - Comprehensive Citizenship and Naturalization Policy Guidance

January 07, 2013

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

AFFECTED SECTIONS

 
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