Appendix: Derivative Citizenship of Children (Nationality Chart 3)

Nationality Chart 3

Derivative Citizenship of Children [1] A child must meet the definition of child under the Immigration and Nationality Act (INA). See Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child for Citizenship and Naturalization [12 USCIS-PM H.2]. A child not legitimated by the father may only derive from the mother. In cases with two U.S. citizen parents where the child is born out of wedlock on or after June 12, 2017, the Office of Chief Counsel (OCC) advises that officers first determine whether the child acquired citizenship through the U.S. citizen father under INA 309(a), as that standard is unaffected by Morales-Santana. If the child did not acquire citizenship through the U.S. citizen father, OCC would like to review the case because it is still considering, in consultation with the Department of State (DOS) and Department of Justice (DOJ), the standard under which a U.S. citizen mother can pass citizenship to a child born out of wedlock to two U.S. citizen parents.

A child may derive U.S. citizenship during the below listed historical periods if such child was under the statutory age, AND the child became a lawful permanent residence (LPR), AND the parent(s) naturalized. It does not matter in which order the actions occurred.

PERIOD IN WHICH LAST ACTION TOOK PLACE

CHILD BECAME LPR BEFORE STATUTORY AGE OF

NATURALIZATION OF PARENT(S) PRIOR TO CHILD’S STATUTORY AGE

ADDITIONAL REMARKS

Prior To

May 24, 1934

21 years old

At least one parent naturalized

None

On or After

May 24, 1934

and Prior To

Jan. 13, 1941

21 years old

At least one parent naturalized

U.S. citizenship effective 5 years from date child becomes an LPR [2] Child relieved of the remainder of the 5-year waiting period if the naturalized parent meets definition of “both parents.”

21 years old

Both parents [3] The definition of “both parents” includes:•The surviving parent should the other parent die; •The naturalized parent having legal custody in the case of a divorce; or •The mother of a child born out of wedlock. naturalized

None

On or After

Jan. 13, 1941

and Prior To

Dec. 24, 1952

18 years old

Both parents [4] The definition of “both parents” as found in Section 313-14 of the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1145-46 (October 14, 1940) includes:•The surviving parent should the other parent die; •The naturalized parent having legal custody in the case of a divorce or a legal separation; or•The foreign national parent who naturalizes when the other parent is already a U.S. citizen since the child’s birth. naturalized

Child born out of wedlock derived on Dec. 24, 1952 if under age 16 and had remained an LPR [5] Once the child was legitimated under the age of 16, both parents were required to naturalize.

On or After

Dec. 24, 1952

and Prior To

Oct. 5, 1978

18 years old

Both parents [6] The definition of “both parents” as found in former INA 321 and former INA 320, Pub. L 82-414, 66 Stat. 163, 245 (June 27, 1952) includes: •The surviving parent should the other parent die; •The naturalized parent having legal custody in the case of a divorce or a legal separation;•The mother of a child born out of wedlock, as long as the child had not been legitimated (if a child was properly legitimated under the age of 16, the law required both parents to naturalize); or•The foreign national parent who naturalizes when the other parent is already a U.S. citizen since the child’s birth. naturalized

Child unmarried (does not include adopted children, but adopted children may derive through the naturalization of their biological parent(s) after adoption if all other requirements are met) [7] In the Second Circuit (New York, Connecticut, and Vermont), the child is not required to become an LPR before the age of 18, provided that the child begins to reside permanently in the United States while under the age of 18. A child begins to reside permanently in the United States when the child is physically in the United States, intends to reside in the United States permanently, and has taken some official action to accomplish that, such as applying for lawful permanent residence. For additional information, officers should contact their local OCC counsel.

On or After

Oct. 5, 1978

and Prior To

Feb. 27, 2001

18 years old

Both parents [8] The definition of “both parents” as found in former INA 321, Pub. L 82-414, 66 Stat. 163, 245 (June 27, 1952) includes:•The surviving parent should the other parent die; •The naturalized parent having legal custody in the case of a divorce or a legal separation; or •The mother of a child born out of wedlock, as long as the child had not been legitimated (if a child was properly legitimated under the age of 16, the law required both parents to naturalize).The definition of “both parents” as found in former INA 320, Pub. L 82-414, 66 Stat. 163, 245 (June 27, 1952) includes:•The foreign national parent who naturalizes when the other parent is already a U.S. citizen since the child’s birth.•In the case of a child with one adoptive parent and one natural parent, the adoptive parent must naturalize. He or she may not be a native-born U.S. citizen. naturalized

Child unmarried (includes child adopted before age 16 who is residing with adoptive parent(s) at the time of their naturalization) [9] An adopted child must be residing in the United States, with lawful admission, in the custody of the adoptive parent(s) at the time of the parent’s naturalization, meet all the requirements for adopted children in INA 101(b)(1), and be adopted by a certain age depending on the period of last action: •On or after October 5, 1978 and prior to November 29, 1981, adoption before age 16.•On or after November 29, 1981 and prior to February 27, 2001, adoption before age 18.

On or After

Feb. 27, 2001

18 years old

At least one parent is a U.S. citizen by birth or naturalization

Child resides in the United States in legal and physical custody of U.S. citizen parent (includes adopted child of U.S. citizen; must meet INA 101(b)(1) requirements for adopted children)

Footnotes


1 [^]

A child must meet the definition of child under the Immigration and Nationality Act (INA). See Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child for Citizenship and Naturalization [12 USCIS-PM H.2]. A child not legitimated by the father may only derive from the mother. In cases with two U.S. citizen parents where the child is born out of wedlock on or after June 12, 2017, the Office of Chief Counsel (OCC) advises that officers first determine whether the child acquired citizenship through the U.S. citizen father under INA 309(a), as that standard is unaffected by Morales-Santana. If the child did not acquire citizenship through the U.S. citizen father, OCC would like to review the case because it is still considering, in consultation with the Department of State (DOS) and Department of Justice (DOJ), the standard under which a U.S. citizen mother can pass citizenship to a child born out of wedlock to two U.S. citizen parents.

2 [^]

Child relieved of the remainder of the 5-year waiting period if the naturalized parent meets definition of “both parents.”

3 [^]

The definition of “both parents” includes:

The surviving parent should the other parent die;

The naturalized parent having legal custody in the case of a divorce; or

The mother of a child born out of wedlock.

4 [^]

The definition of “both parents” as found in Section 313-14 of the Nationality Act of 1940, Pub. L. 76-853, 54 Stat. 1145-46 (October 14, 1940) includes:

The surviving parent should the other parent die;

The naturalized parent having legal custody in the case of a divorce or a legal separation; or

The foreign national parent who naturalizes when the other parent is already a U.S. citizen since the child’s birth.

5 [^]

Once the child was legitimated under the age of 16, both parents were required to naturalize.

6 [^]

The definition of “both parents” as found in former INA 321 and former INA 320, Pub. L 82-414, 66 Stat. 163, 245 (June 27, 1952) includes:

The surviving parent should the other parent die;

The naturalized parent having legal custody in the case of a divorce or a legal separation;

The mother of a child born out of wedlock, as long as the child had not been legitimated (if a child was properly legitimated under the age of 16, the law required both parents to naturalize); or

The foreign national parent who naturalizes when the other parent is already a U.S. citizen since the child’s birth.

7 [^]

In the Second Circuit (New York, Connecticut, and Vermont), the child is not required to become an LPR before the age of 18, provided that the child begins to reside permanently in the United States while under the age of 18. A child begins to reside permanently in the United States when the child is physically in the United States, intends to reside in the United States permanently, and has taken some official action to accomplish that, such as applying for lawful permanent residence. For additional information, officers should contact their local OCC counsel.

8 [^]

The definition of “both parents” as found in former INA 321, Pub. L 82-414, 66 Stat. 163, 245 (June 27, 1952) includes:

The surviving parent should the other parent die;

The naturalized parent having legal custody in the case of a divorce or a legal separation; or

The mother of a child born out of wedlock, as long as the child had not been legitimated (if a child was properly legitimated under the age of 16, the law required both parents to naturalize).

The definition of “both parents” as found in former INA 320, Pub. L 82-414, 66 Stat. 163, 245 (June 27, 1952) includes:

The foreign national parent who naturalizes when the other parent is already a U.S. citizen since the child’s birth.

In the case of a child with one adoptive parent and one natural parent, the adoptive parent must naturalize. He or she may not be a native-born U.S. citizen.

9 [^]

An adopted child must be residing in the United States, with lawful admission, in the custody of the adoptive parent(s) at the time of the parent’s naturalization, meet all the requirements for adopted children in INA 101(b)(1), and be adopted by a certain age depending on the period of last action:

On or after October 5, 1978 and prior to November 29, 1981, adoption before age 16.

On or after November 29, 1981 and prior to February 27, 2001, adoption before age 18.