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Chapter 6 - Special Provisions for the Naturalization of Children

A. Children Subjected to Battery or Extreme Cruelty

In general, the spouse of a U.S. citizen who resides in the United States may be eligible for naturalization based on his or her marriage under section 319(a) of the Immigration and Nationality Act (INA). On October 28, 2000, Congress expanded the naturalization provision based on a family relationship to a U.S. citizen. The amendments added that children of U.S. citizens may naturalize if they obtained lawful permanent resident (LPR) status based on having been battered or subjected to extreme cruelty by their citizen parent. [1] ​ 

1. Eligibility for Special Provision

A child [2] is eligible for naturalization under the spousal naturalization provisions [3] if he or she obtained LPR status based on:

  • An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning child of an abusive U.S. citizen;​

  • An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the self-petitioning child of an abusive LPR, if the abusive parent naturalizes after USCIS approves the petition; [4] ​ 

  • An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the derivative child [5] of a self-petitioning spouse of a U.S. citizen who was battered or subjected to extreme cruelty by a U.S. citizen spouse; [6] or 

  • Cancellation of removal where the applicant was the child of a U.S. citizen who subjected him or her to battery or extreme cruelty. [7] 

A child is also eligible for naturalization under the spousal naturalization provisions if he or she had the conditions on his or her residence removed based on:

  • An approved battery or extreme cruelty waiver of the joint filing requirement for the Petition to Remove Conditions on Residence (Form I-751). [8] 

The applicant must meet all other eligibility requirements for naturalization, including the requirement that the applicant is over the age of 18 at the time of filing. The applicant must be the genetic, legitimated,​ or adopted son or daughter of a U.S. citizen, or the son or daughter of a non-genetic gestational U.S. citizen mother who is recognized by the relevant jurisdiction as the child’s legal parent.​ [9] 

Stepchildren of U.S. citizens may also naturalize under this provision if otherwise eligible. [10] 

2. Exception to General Naturalization Requirements

An applicant subjected to battery or extreme cruelty by his or her U.S. citizen parent is exempt from the following naturalization requirements: [11] 

  • Living with the U.S. citizen parent for at least 3 years at the time of filing the naturalization application; and

  • The applicant's U.S. citizen parent, who petitioned for him or her, has U.S. citizenship from the time of filing until the time the applicant takes the Oath of Allegiance. [12] 

These exceptions also apply to derivative children.

B. Surviving Child of Members of the U.S. Armed Forces​

On November 24, 2003, Congress amended certain military-related immigration provisions of the INA. This included extending certain immigration benefits to surviving spouses, children, and parents of deceased U.S.​ citizen service members. [13] 

1. Eligibility for Special Provision

​A surviving child, who has not already acquired U.S. citizenship, may be eligible for naturalization. [14] In addition, the child may qualify for certain exemptions from the general naturalization requirements. To qualify for this special provision, the applicant must be the child [15] of a U.S. citizen service member who died during a period of honorable service in an active duty status in the U.S. armed forces. [16] This includes service members who were not U.S. citizens at the time of their death but were later granted posthumous U.S. citizenship.​

The applicant must meet all other eligibility requirements for naturalization, including the requirement that the applicant be over the age of 18 at the time of filing. The applicant must be the genetic, legitimated,​ or adopted son or daughter of a U.S. citizen, or the son or daughter of a non-genetic gestational U.S. citizen mother who is recognized by the relevant jurisdiction as the child’s legal parent.​ [17] A person who is the surviving stepchild of a member of the U.S. armed forces is not eligible to naturalize under this provision.​

2. Exceptions to General Naturalization Requirements​

Under the special provision, the qualified surviving child is exempt from the following requirements:​

  • Continuous residence;​ 

  • Physical presence; and

  • Three-month physical presence within the state or jurisdiction. 

Footnotes


[^ 1] ​ See the Victims of Trafficking and Violence Protection Act of 2000, Pub. L. 106-386 (October 28, 2000). For more information regarding battered spouses or spouses subjected to extreme cruelty, see Part G, Spouses of U.S. Citizens, Chapter 3, Spouses of U.S. Citizens Residing in the United States, Section F, Eligibility for Persons Subjected to Battery or Extreme Cruelty ​[12 USCIS-PM G.3(F)​].​

[^ 2] The child must be 18 years of age or older to apply for naturalization.

[^ 3] Under spousal naturalization provisions, the child is required to show 3 years of continuous residence and physical presence at least half of that time. See INA 319(a)

[^ 4] See INA 204(a)(1)(B)(ii). The definition of child includes certain stepchildren. See INA 101(b)(1).

[^ 5] A derivative child is an unmarried child who can accompany the principal beneficiary based on a parent-child relationship.

[^ 6] See INA 319(a). See INA 204(a)(1)(A)(iii)INA 204(a)(1)(A)(iv), for inclusion of the derivative child in the VAWA self-petitioning provisions. See INA 319(a).

[^ 7] See INA 240A(b)(2)(A)(i)(I) or INA 240A(b)(2)(A)(i)(III).

[^ 8] The waiver must be based on either the parent being subjected to battery or extreme cruelty by the petitioning citizen or LPR spouse, or the child being subjected to battery or extreme cruelty by the conditional permanent resident parent or the petitioning citizen or LPR spouse. See INA 216(c)(4)(C).

[^ 9] For further guidance on the definition of child for citizenship and naturalization purposes, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].

[^ 10] See INA 101(b)(1).

[^ 11] See INA 319(a)

[^ 12] See INA 204(a)(1)(A)(iii)(II)(aa)(CC)(bbb). See INA 204(a)(1)(A)(iv).

[^ 13] See the National Defense Authorization Act for Fiscal Year 2004, Pub. L. 108-136 (PDF) (November 24, 2003). See INA 319(d). See INA 329A.

[^ 14] See INA 319(d). For information on eligibility for surviving parents and spouses, see Part I, Military Members and their Families, Chapter 9, Spouses, Children, and Surviving Family Benefits [12 USCIS-PM I.9]. 

[^ 15] See INA 101(c)(1). The child must meet the definition of child applicable to citizenship and naturalization. See Part H, Children of U.S. Children, Chapter 2, Definition of Child [12 USCIS-PM H.2].

[^ 16] See Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2]. 

[^ 17] For further guidance on the definition of child for citizenship and naturalization purposes, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].

Resources

Legal Authorities

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

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.

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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.

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POLICY ALERT - Special Naturalization Provisions for Children

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance to amend the USCIS Policy Manual to clarify certain special naturalization provisions for children.

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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).

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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.

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