USCIS Policy Manual

Current as of February 12, 2019

Volume 12 - Citizenship & Naturalization

Part H - Children of U.S. Citizens

Chapter 1 - Purpose and Background

A. Purpose

United States laws allow for children to acquire U.S. citizenship other than through birth in the United States. [1] See INA 301, INA 320, and INA 322. Persons who were born outside of the United States to a U.S. citizen parent or parents may acquire or derive U.S. citizenship at birth. Persons may also acquire citizenship after birth, but before the age of 18, through their U.S. citizen parents.

Previously, acquisition of citizenship generally related to those persons who became U.S. citizens at the time of birth, and derivation of citizenship to those who became U.S. citizens after birth due to the naturalization of a parent.

In general, current nationality laws only refer to acquisition of citizenship for persons who automatically become U.S. citizens either at the time of birth or after. In general, a person must meet the applicable definition of child at the time he or she acquires citizenship and must be under 18 years of age.

B. Background

The law in effect at the time of birth determines whether someone born outside the United States to a U.S. citizen parent or parents is a U.S. citizen at birth. In general, these laws require a combination of at least one parent being a U.S. citizen when the child was born and having lived in the United States for a period of time. In addition, children born abroad may become U.S. citizens after birth. Citizenship laws have changed extensively over time with two major changes coming into effect in 1978 and 2001.

Prior to the Act of October 10, 1978, U.S. citizens who had acquired citizenship through birth abroad to one citizen parent had to meet certain physical presence requirements in order to retain citizenship. [2] See Act of October 10, 1978, Pub.L. 95-432, 92 Stat. 1046. This legislation removed all retention requirements. Prior to the Child Citizenship Act of 2000 (CCA), effective February 27, 2001, the INA had two provisions for derivation of citizenship. [3] See the Child Citizenship Act of 2000, Sec. 101, Pub.L. 106-395, 114 Stat 1631, October 30, 2000 (Effective February 27, 2001). The CCA removed one provision and revised the other making it the only method for children under 18 years of age in the United States to automatically acquire citizenship after birth. [4] The CCA amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth. See INA 320. See Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4].

C. Table of General Provisions

A child born outside of the United States may acquire U.S. citizenship through various ways. The table below serves as a quick reference guide to the acquisition of citizenship provisions. [5] Except for the reference to INA 321, the references in the table are to the current statutory requirements for citizenship. Previous versions of the law may apply. The chapters that follow the table provide further guidance.

General Provisions for Acquisition of Citizenship for Children Born Abroad

INA Section

Status of Parents

Residence or Physical

Presence Requirements

Child is a

U.S. Citizen

301(c)

Both parents are U.S. citizens

At least one U.S. citizen parent has resided in the United States or outlying possession prior to child’s birth

At Birth

301(d)

One parent is a U.S. citizen; other parent is U.S. national

U.S. citizen parent was physically present in the United States or its outlying possession for one year prior to child’s birth

At Birth

301(f)

Unknown parentage

Child is found in the United States while under 5 years of age

At Birth

301(g)

One parent is a U.S. citizen; other parent is a foreign national

U.S. citizen parent was physically present in United States or its outlying possessions for at least 5 years (2 after age 14) prior to child’s birth

At Birth

301(h)

Mother is a U.S. citizen and father is a foreign national

U.S. citizen mother resided in the United States prior to child’s birth

At Birth

(only applies to birth prior to 1934)

309(a)

Out of wedlock birth, claiming citizenship through father

Requirements depend on applicable provision: INA 301(c), (d), (e), or (g)

At Birth

(Out of wedlock)

309(c)

Out of wedlock birth, claiming citizenship through mother

U.S. citizen mother physically present in the U.S. or its outlying possessions for one year prior to the child’s birth

At Birth (for birth after December 23, 1952)

320

At least one parent is a U.S. citizen (through birth or naturalization)

Child resides in the United States as a lawful permanent resident

At Time Criteria is Met

321

Repealed by CCA

Both parents naturalize, or in certain cases, one parent naturalizes

Child resides in the United States as a lawful permanent resident

At Time Criteria is Met

322

At least one parent is a U.S. citizen (through birth or naturalization)

Child resides outside of the United States and child’s parent (or grandparent) was physically present in the U.S. or its outlying possessions for at least 5 years (2 after age 14)

At Time

Oath is Administered

D. Legal Authorities

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

INA 301 – Nationals and citizens of the United States at birth

INA 309 – Children born out of wedlock

INA 320; 8 CFR 320 – Children residing permanently in the United States

INA 322; 8 CFR 322 – Children residing outside the United States

Footnotes

1.

See INA 301, INA 320, and INA 322.

 

2.

See Act of October 10, 1978, Pub.L. 95-432, 92 Stat. 1046.

 

3.

See the Child Citizenship Act of 2000, Sec. 101, Pub.L. 106-395, 114 Stat 1631, October 30, 2000 (Effective February 27, 2001).

 

4.

The CCA amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth. See INA 320. See Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320) [12 USCIS-PM H.4].

 

5.

Except for the reference to INA 321, the references in the table are to the current statutory requirements for citizenship. Previous versions of the law may apply.

 

Chapter 2 - Definition of Child 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] See INA 101(b) and INA 101(c). 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] See INA 101(b).

The other definition of child applies to citizenship and naturalization. [3] See INA 101(c).

The most 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 ineligible for citizenship or naturalization through the U.S. citizen stepparent, unless the stepchild is adopted and the adoption meets certain requirements. [4] See Section C, Adopted Child [12 USCIS-PM H.2(C)].

In general, a child for the citizenship and naturalization provisions is an unmarried person under 21 years of age who is:

The genetic, legitimated, [5] A child can be legitimated under the laws of the child’s residence or domicile, or under the law of the father’s residence or domicile. See INA 101(c). A person’s “residence” is his or her place of general abode, that is, his or her principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s “domicile” refers to a person’s legal permanent home and principal establishment, to include an intent to return if absent. Black’s Law Dictionary (9th ed. 2009). In most cases, a person’s residence is the same as a person’s domicile. 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.

The term “genetic child” refers to a child who shares genetic material with his or her parent, and “gestational mother” is the person who carries and gives birth to the child. A genetic parent, as well as a non-genetic gestational mother 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. [6] See INA 101(b) and INA 101(c). 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 relationship to the parent (or parents). The child’s parent (or parents) who is included in the birth certificate is presumed to have legal custody of the child absent other evidence. [7] In certain cases, a court may terminate a parent’s parental rights or a parent may relinquish his or her parental rights depending on the laws of the relevant jurisdiction.

In addition to meeting the definition of a child, 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, instead of 21. [8] See Chapter 3, United States Citizens at Birth (INA 301 and 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].

B. Legitimated Child

Legitimation means “placing a child born out of wedlock in the same legal position as a child born in wedlock.” [9] See Matter of Moraga, 23 I&N Dec. 195, 197 (BIA 2001). 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. [10] See INA 101(c)(1). 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. [11] 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 will be analyzed to determine whether the requirements for legitimation have been met.

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; [12] 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.”

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); [13] 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. and

The child is in the legal custody of the legitimating parent or parents at the time of the legitimation. [14] See INA 101(c)(1). See also Matter of Rivers, 17 I&N Dec. 419, 422 (BIA 1980) (presuming a legitimated child to be in the legal custody of the legitimating parent).

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. [15] See Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

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 means that the child has been adopted through a full, final, and complete adoption. [16] See 8 CFR 320.1. See 8 CFR 322.1. This includes certain siblings of adopted children who are permitted to be adopted while under 18 years of age. [17] See INA 101(b)(1)(E)(ii).

A child is an adopted son or daughter of his or her U.S. citizen parent if the following conditions are met:

The child is adopted in the United States or abroad;

The child is adopted before he or she reaches 16 years of age (except for certain cases where the child may be adopted before reaching 18 years of age); [18] See INA 101(b)(1)(E)(ii) and INA 101(b)(1)(F)(ii). and

The child is in the legal custody of the adopting parent or parents at the time of the adoption. [19] See INA 101(c)(1).

In general, the adoption must:

Be valid under the law of the country or place granting the adoption;

Create a legal permanent parent-child relationship between a child and someone who is not already the child’s legal parent; and

Terminate the legal parent-child relationship with the prior legal parent(s). [20] See Adjudicator’s Field Manual, Chapter 21.15, Self Petitions by Parents of U.S. Citizens.

D. Orphan [21] See INA 101(b)(1).

In general, the definition for adopted children applies to adopted orphans. USCIS, however, does not consider an orphan adopted if any of the following conditions apply:

The foreign adoption was not full and final;

The foreign adoption was defective; or

An unmarried U.S. citizen parent or a U.S. citizen parent and spouse jointly did not see and observe the child in person prior to or during the foreign adoption proceedings. [22] See 8 CFR 320.1. See 8 CFR 322.1.

If the orphan is not considered adopted:

The child must be must be readopted in the United States; or

The child must be adopted while under 16 years of age and must have been residing in the legal custody of the adopting parent or parents for at least two years. [23] See INA 101(b)(1)(E).

In all cases, the condition that the child must have been residing in the legal custody of the adopting parent or parents is not required if the child has been battered or subject to extreme cruelty by the adopting parent or by a family member of the adopting parent residing in the same household.

E. Child Born Abroad through Assisted Reproductive Technology

1. Background

Assisted Reproductive Technology (ART)

A child may be born through ART. 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. [24] See Fertility Clinic Success Rate and Certification Act of 1992 (FCSRCA), Pub. L. 102-493, 106 Stat. 3146. In these procedures, the parent or parents may use a combination of his or her own genetic material or donated genetic material (donated egg, sperm, or both) in order to conceive a child. [25] In addition, a couple may use a gestational carrier (also called a gestational surrogate). A gestational surrogate is a woman, who gestates, or carries, an embryo that was formed from the egg of another woman on behalf of the intended parent or parents. The gestational carrier usually has a contractual obligation to return the infant to his or her intended legal parents. For additional information on ART, see the Centers for Disease Control (CDC) Web site.

ART and the Immigration and Nationality Act (INA)

ART was not considered at the time the INA and many of its subsequent amendments were enacted. One of the most significant impacts of ART is that ART allows for a woman to bear a child to whom she does not have a genetic relationship through the use of a donor egg. As such, a mother could have a biological relationship to her child but not a genetic relationship.

Children Born Abroad through ART

USCIS and the Department of State (DOS), who share authority over these issues, collaborated in the development of this policy. A non-genetic gestational mother (person who carried and gave birth to the child) who is also the child’s legal mother may be recognized in the same way as genetic legal mothers are treated under the INA. A mother 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 consequently may transmit U.S. citizenship to the child if all other requirements are met. [26] Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire U.S. citizenship through that parent.

Child Born Abroad through ART in the Citizenship and Naturalization Contexts

A child born through ART may acquire U.S. citizenship from his or her non-genetic gestational mother at the time of birth, or after birth, depending on the applicable citizenship or naturalization provision, 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 applicable requirements under the relevant citizenship or naturalization provision.

2. Jurisdiction’s Recognition of Mother-Child Relationship

The relevant jurisdiction must recognize the mother-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 mother is recognized as the legal mother without her having to take any additional affirmative steps after birth. However, 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 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.

In either case, the law of the relevant jurisdiction governs whether the non-genetic gestational mother is the legal mother for purposes of U.S. immigration law. Importantly, a non-genetic gestational mother who is not the legally recognized mother may not transmit U.S. citizenship to the child. USCIS will follow a court judgment of the relevant jurisdiction if parentage is disputed. In addition, USCIS will not adjudicate cases involving children whose legal parentage remains in dispute unless there has been a determination by a proper authority.

The applicable citizenship provision may depend upon whether the child is born in wedlock or out of wedlock. USCIS must determine whether a child born through ART is born in wedlock or out of wedlock and will treat a child born to a legal gestational mother in the same manner as a child born to a genetic mother when determining if the child is born in or out of wedlock.

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.

A child can be legitimated under the laws of the child’s residence or domicile, or under the law of the father’s residence or domicile. See INA 101(c). A person’s “residence” is his or her place of general abode, that is, his or her principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s “domicile” refers to a person’s legal permanent home and principal establishment, to include an intent to return if absent. Black’s Law Dictionary (9th ed. 2009). In most cases, a person’s residence is the same as a person’s domicile.

 

6.

See INA 101(b) and INA 101(c).

 

7.

In certain cases, a court may terminate a parent’s parental rights or a parent may relinquish his or her parental rights depending on the laws of the relevant jurisdiction.

 

8.

See Chapter 3, United States Citizens at Birth (INA 301 and 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].

 

9.

See Matter of Moraga, 23 I&N Dec. 195, 197 (BIA 2001).

 

10.

See INA 101(c)(1).

 

11.

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 will be analyzed to determine whether the requirements for legitimation have been met.

 

12.

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.”

 

13.

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.

 

14.

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

 

15.

See Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

 

16.

See 8 CFR 320.1. See 8 CFR 322.1.

 

17.

See INA 101(b)(1)(E)(ii).

 

18.

See INA 101(b)(1)(E)(ii) and INA 101(b)(1)(F)(ii).

 

19.

See INA 101(c)(1).

 

20.

See Adjudicator’s Field Manual, Chapter 21.15, Self Petitions by Parents of U.S. Citizens.

 

21.

See INA 101(b)(1).

 

22.

See 8 CFR 320.1. See 8 CFR 322.1.

 

23.

See INA 101(b)(1)(E).

 

24.

See Fertility Clinic Success Rate and Certification Act of 1992 (FCSRCA), Pub. L. 102-493, 106 Stat. 3146.

 

25.

In addition, a couple may use a gestational carrier (also called a gestational surrogate). A gestational surrogate is a woman, who gestates, or carries, an embryo that was formed from the egg of another woman on behalf of the intended parent or parents. The gestational carrier usually has a contractual obligation to return the infant to his or her intended legal parents. For additional information on ART, see the Centers for Disease Control (CDC) Web site.

 

26.

Previously, a genetic relationship with a U.S. citizen parent was required in order for a child born abroad to acquire U.S. citizenship through that parent.

 

Chapter 3 - United States Citizens at Birth (INA 301 and 309)

A. General Requirements for Acquisition of Citizenship at Birth

A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a person born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe. [1] See INA 301(a) and INA 301(b). Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See 8 CFR 101.3.

In general, a person born outside of the United States may acquire citizenship at birth if:

The person has at least one parent who is a U.S. citizen; and

The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision. [2] Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).

A person born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother acquires U.S. citizenship at birth under INA 301 or INA 309 if:

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

The person meets all other applicable requirements under either INA 301 or INA 309. [3] For a more thorough discussion, see Chapter 2, Definition of Child for Citizenship and Naturalization, Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship. [4] The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.

An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years. [5] Officers should use the Nationality Charts to assist with the adjudication of these applications. The following sections provide the current law.

B. Child Born in Wedlock [6] See INA 301. See Nationality Chart 1.

1. Child of Two U.S. Citizen Parents [7] See INA 301(c).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

Both of the child’s parents are U.S. citizens; and

At least one parent had resided in the United States or one of its outlying possessions.

2. Child of U.S. Citizen Parent and U.S. National [8] See INA 301(d).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a U.S. citizen and the other parent is a U.S. national; and

The U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least one year.

3. Child of U.S. Citizen Parent and Foreign National Parent [9] See INA 301(g).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a foreign national and the other parent is a U.S. citizen; and

The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.

Time abroad counts as physical presence in the United States if the time abroad was:

As a member of the U.S. armed forces in honorable status;

Under the employment of the U.S. government or other qualifying organizations; or

As a dependent unmarried son or daughter of such persons.

4. Child of a U.S. Citizen Mother and Foreign National Father [10] See INA 301(h).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if:

The child was born before noon (Eastern Standard Time) May 24, 1934;

The child’s father is a foreign national;

The child’s mother was a U.S. citizen at the time of the child’s birth; and

The child’s U.S. citizen mother resided in the United States prior to the child’s birth.

C. Child Born Out of Wedlock [11] See INA 309. See Nationality Chart 2.

1. Child of U.S. Citizen Father

General Requirements for Fathers of Children Born Out of Wedlock

The general requirements for acquisition of citizenship at birth [12] See INA 301(c), INA 301(d), INA 301(e), and INA 301(g). See Section A, General Requirements for Acquisition of Citizenship at Birth [12 USCIS-PM H.3(A)]. for a child born in wedlock also apply to a child born out of wedlock outside of the United States (or one of its outlying possessions) who claims citizenship through a U.S. citizen father. Specifically, the provisions apply in cases where:

A blood relationship between the child and the father is established by clear and convincing evidence;

The child’s father was a U.S. citizen at the time of the child’s birth;

The child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and

One of the following criteria is met before the child reaches 18 years of age:

The child is legitimated under the law of his or her residence or domicile;

The father acknowledges in writing and under oath the paternity of the child; or

The paternity of the child is established by adjudication of a competent court.

In addition, the residence or physical presence requirements contained in the relevant paragraph of INA 301 continue to apply to children born out of wedlock, who are claiming citizenship through their fathers.

Written Agreement to Provide Financial Support

In order for a child born out of wedlock outside of the United States (or one of its outlying possessions) to acquire U.S. citizenship through his or her father, Congress included a requirement that the father agree in writing to provide financial support for the child until the child reaches the age of 18. [13] A separate agreement or contract is not required for the father to satisfy the requirement. See INA 309(a)(3). See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (November 14, 1986). Congress included the language to prevent children from becoming public charges. [14] See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (November 14, 1986). The Immigration and Nationality Act (INA) was intended to keep families together and generally construed in favor of family unity and the acceptance of responsibility by family members. See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005). USCIS interprets the phrase in the statute “has agreed in writing to provide financial support” [15] See INA 309(a)(3). to mean that there must be documentary evidence that supports a finding that the father accepted the legal obligation to support the child until the age of 18.

The written agreement of financial support may be dated at any time before the child’s 18th birthday. If the child is under the age of 18 at the time of filing an Application for Certificate of Citizenship, the father may provide the written agreement of financial support either concurrently with the filing of the application or prior to the adjudication of the application. USCIS may request the written agreement of financial support at the time of issuance of a Request for Evidence or at the time of an interview (unless the interview is waived).

Alternatively, if the applicant is already over the age of 18, he or she may meet the requirement if one or more documents support a finding that the father accepted his legal obligation to support the child. In such cases, the evidence must have existed (and have been finalized) prior to the child’s 18th birthday and must have met any applicable foreign law or U.S. law governing the child’s or father’s residence to establish acceptance of financial responsibility. [16] In many cases, the issue of whether the father agreed to provide financial support depends on foreign law. The applicant bears the burden of proving the father has met any applicable requirements to make a binding agreement under the law. See Matter of Annang, 14 I&N Dec. 502 (BIA 1973). Officers should consult USCIS counsel about any requirements under the law.

In all cases, the applicant has the burden of proving the father has met any applicable requirements under the law to make an agreement to provide financial support. A written agreement of financial support is not required if the father died before the child’s 18th birthday. [17] See INA 309.

Written Agreement Requirements

In order for a document to qualify as a written agreement of financial support under INA 309(a)(3), the document:

Must be in writing and acknowledged by the father; [18] A court document may be signed by a judge rather than the father, but may still serve as evidence to meet this requirement if there is an indication in the record of proceedings that the father consented to the determination of paternity.

Must indicate the father’s agreement to provide financial support for the child; [19] Since the statute only provides for the agreement of the father to provide support and does not provide for any loss of citizenship if the agreement is not met, USCIS does not consider whether the father actually provided financial support. and

Must be dated before the child’s 18th birthday.

In addition, USCIS considers whether the agreement was voluntary.

Other Acceptable Documentation

A written agreement of financial support may come in different forms and documents. USCIS may consider other similar documentation in which the father accepts financial responsibility of the child until the age of 18. Some examples of documents USCIS may consider include:

A previously submitted Affidavit of Support (Form I-134) or Affidavit of Support Under Section 213A of the INA (Form I-864);

Military Defense Enrollment Eligibility Reporting System (DEERS) enrollment;

Written voluntary acknowledgement of a child in a jurisdiction where there is a legal requirement that the father provide financial support; [20] For example, a birth certificate or acknowledgement document submitted and certified by the father. Under U.S. jurisdictions, a written voluntary acknowledgement of a child generally triggers a legal obligation to support the child. However, under foreign jurisdictions, a voluntary written agreement may not always trigger a legal obligation to support the child. The officer may consult with local USCIS counsel for questions regarding the effect of the law.

Documentation establishing paternity by a court or administrative agency with jurisdiction over the child’s personal status, if accompanied by evidence from the record of proceeding establishing the father initiated the paternity proceeding and the jurisdiction legally requires the father to provide financial support; or

A petition by the father seeking child custody or visitation with the court of jurisdiction with an agreement to provide financial support and the jurisdiction legally requires the father to provide financial support.

2. Child of U.S. Citizen Mother

The rules that determine whether a child born out of wedlock outside of the United States derives citizenship at birth from his or her U.S. citizen mother vary depending on when the child was born.

Child Born On or After December 23, 1952 and Before June 12, 2017

A child born between December 23, 1952 and June 12, 2017 who is born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:

The child’s mother was a U.S. citizen at the time of the child’s birth; and

The child’s U.S. citizen mother was physically present in the United States or one of its outlying possessions for 1 continuous year prior to the child’s birth. [21] See INA 309(c).

Child Born On or After June 12, 2017

A child born on or after June 12, 2017, who is born out of wedlock outside of the United States or one of its outlying possessions acquires citizenship at birth if:

The child’s mother was a U.S. citizen at the time of the child’s birth; and

The child’s U.S. citizen mother was physically present in the United States or one of its outlying possessions for at least 5 years prior to the child’s birth (at least 2 years of which were after age 14). [22] See INA 301(g). See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

Effect of Sessions v. Morales-Santana Decision

Prior to the U.S. Supreme Court’s decision in Sessions v. Morales-Santana, [23] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). the physical presence requirements for children born out of wedlock were different for a child acquiring citizenship through a U.S. citizen mother than for those acquiring through a U.S. citizen father. An unwed U.S. citizen mother could transmit citizenship to her child if the mother was physically present in the United States for 1 continuous year prior to the child's birth. [24] See INA 309(c). An unwed U.S. citizen father, by contrast, was held to the longer physical presence requirement of 5 years (at least 2 years of which were after age 14) in the United States or one of its outlying possessions. [25] See INA 301(g).

On June 12, 2017, the U.S. Supreme Court held, in Sessions v. Morales-Santana, that the different physical presence requirements for an unwed U.S. citizen father and an unwed U.S. citizen mother violated the U.S. Constitution’s Equal Protection Clause. [26] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). See U.S. Constitution, amend. XIV. The U.S. Supreme Court indicated that the 5 years of physical presence (at least 2 years of which were after age 14) [27] See INA 301(g). requirement should apply prospectively to all cases involving a child born out of wedlock outside the United States to one U.S. citizen parent and one foreign national parent, regardless of the gender of the parent. [28] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

The U.S. Supreme Court decision effectively eliminated, prospectively, the 1 year continuous physical presence requirement that previously applied to unwed U.S. citizen mothers, and replaced it with the higher physical presence requirement that previously applied to unwed U.S. citizen fathers. [29] See INA 309(c). After Sessions v. Morales-Santana, the 1-year continuous physical presence requirement [30] See INA 309(c). remains in effect only for those children born prior to June 12, 2017 outside of the United States to unwed U.S. citizen mothers.

D. Application for Certificate of Citizenship (Form N-600)

A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. passport with the Department of State to serve as evidence of his or her U.S. citizenship. [31] See 8 CFR 341.1. The Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are abroad, and the Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States. See INA 103(a)(1) and INA 104(a)(3). There is nothing precluding USCIS from accepting a Form N-600 filed under INA 301 or INA 309 by a person who does not live in the United States. See INA 341(a).

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child's U.S. citizen parent or legal guardian must submit the application. [32] See 8 CFR 341.1.

USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so. [33] See Section F, Decision and Oath of Allegiance [12 USCIS-PM H.3(F)]. See 8 CFR 341.5(b).

E. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or legal guardian if the application is filed on behalf of a child under 18 years of age. [34] See 8 CFR 341.2(a)(2). USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant's eligibility is already included in USCIS administrative records, or if the application is accompanied by one of the following:

Consular Report of Birth Abroad (FS-240);

Applicant’s unexpired U.S. passport issued initially for a full 5 or 10-year period; or

Certificate of Naturalization of the applicant's parent or parents. [35] See 8 CFR 341.2(a).

F. 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 Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship. [36] See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].

However, the Immigration and Nationality Act (INA) permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning. [37] See INA 337(a). See 8 CFR 341.5(b). 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. [38] See 8 CFR 341.5(d) and 8 CFR 103.3(a). An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes

1.

See INA 301(a) and INA 301(b). Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See 8 CFR 101.3.

 

2.

Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).

 

3.

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

 

4.

The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.

 

5.

Officers should use the Nationality Charts to assist with the adjudication of these applications.

 

6.

See INA 301. See Nationality Chart 1.

 

7.

See INA 301(c).

 

8.

See INA 301(d).

 

9.

See INA 301(g).

 

10.

See INA 301(h).

 

11.

See INA 309. See Nationality Chart 2.

 

12.

See INA 301(c), INA 301(d), INA 301(e), and INA 301(g). See Section A, General Requirements for Acquisition of Citizenship at Birth [12 USCIS-PM H.3(A)].

 

13.

A separate agreement or contract is not required for the father to satisfy the requirement. See INA 309(a)(3). See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (November 14, 1986).

 

14.

See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (November 14, 1986). The Immigration and Nationality Act (INA) was intended to keep families together and generally construed in favor of family unity and the acceptance of responsibility by family members. See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).

 

15.

See INA 309(a)(3).

 

16.

In many cases, the issue of whether the father agreed to provide financial support depends on foreign law. The applicant bears the burden of proving the father has met any applicable requirements to make a binding agreement under the law. See Matter of Annang, 14 I&N Dec. 502 (BIA 1973). Officers should consult USCIS counsel about any requirements under the law.

 

17.

See INA 309.

 

18.

A court document may be signed by a judge rather than the father, but may still serve as evidence to meet this requirement if there is an indication in the record of proceedings that the father consented to the determination of paternity.

 

19.

Since the statute only provides for the agreement of the father to provide support and does not provide for any loss of citizenship if the agreement is not met, USCIS does not consider whether the father actually provided financial support.

 

20.

For example, a birth certificate or acknowledgement document submitted and certified by the father. Under U.S. jurisdictions, a written voluntary acknowledgement of a child generally triggers a legal obligation to support the child. However, under foreign jurisdictions, a voluntary written agreement may not always trigger a legal obligation to support the child. The officer may consult with local USCIS counsel for questions regarding the effect of the law.

 

21.

See INA 309(c).

 

22.

See INA 301(g). See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

 

23.

See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

 

24.

See INA 309(c).

 

25.

See INA 301(g).

 

26.

See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). See U.S. Constitution, amend. XIV.

 

27.

See INA 301(g).

 

28.

See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

 

29.

See INA 309(c).

 

30.

See INA 309(c).

 

31.

See 8 CFR 341.1. The Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are abroad, and the Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States. See INA 103(a)(1) and INA 104(a)(3). There is nothing precluding USCIS from accepting a Form N-600 filed under INA 301 or INA 309 by a person who does not live in the United States. See INA 341(a).

 

32.

See 8 CFR 341.1.

 

33.

See Section F, Decision and Oath of Allegiance [12 USCIS-PM H.3(F)]. See 8 CFR 341.5(b).

 

34.

See 8 CFR 341.2(a)(2).

 

35.

See 8 CFR 341.2(a).

 

36.

See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].

 

37.

See INA 337(a). See 8 CFR 341.5(b).

 

38.

See 8 CFR 341.5(d) and 8 CFR 103.3(a).

 

Chapter 4 - Automatic Acquisition of Citizenship after Birth (INA 320)

A. General Requirements: Genetic, Legitimated, or Adopted Child Automatically Acquiring Citizenship after Birth [1] See INA 320. See Nationality Chart 3.

A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001: [2] February 27, 2001 is the effective date for these CCA amendments.

The child has at least one parent, including an adoptive parent [3] If the requirements of INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G) are met. who is a U.S. citizen by birth or through naturalization;

The child is under 18 years of age;

The child is a lawful permanent resident (LPR); [4] A person is generally considered to be an LPR once USCIS approves his or her adjustment application or once he or she enters the United States with an immigrant visa. See INA 245(b). For certain classifications, however, the effective date of becoming an LPR is a date that is earlier than the actual approval of the status (commonly referred to as a “rollback” date). See Part D, General Naturalization Requirements, Chapter 2, LPR Admission for Naturalization, Section A, LPR at Time of Filing and Naturalization [12 USCIS-PM D.2(A)]. A person who is born a U.S. national and is the child of a U.S. citizen may establish eligibility for a Certificate of Citizenship without having to establish LPR status. and

The child is residing in the United States in the legal and physical custody of the U.S. citizen parent. [5] See INA 320. See 8 CFR 320.2. Children of U.S. government employees temporarily stationed abroad are considered to be “residing in the United States” for purposes of acquisition of citizenship under INA 320.

A child born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother may acquire U.S. citizenship under INA 320 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 320, including that the child is residing in the United States in the legal and physical custody of the U.S. citizen parent. [6] For a more thorough discussion, see Chapter 2, Definition of Child for Citizenship and Naturalization, Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

A stepchild who has not been adopted does not qualify for citizenship under this provision.

B. Legal and Physical Custody of U.S. Citizen Parent

Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios: [7] See 8 CFR 320.1.

A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;

A biological child who currently resides with a surviving biological parent, if the other parent is deceased;

A biological child born out of wedlock who has been legitimated and currently resides with the parent;

An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent; [8] If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.

USCIS considers a U.S. citizen parent who has been awarded “joint custody” to have legal custody of a child. There may be other factual circumstances under which USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.

C. Acquisition of Citizenship Prior to Child Citizenship Act of 2000

The Child Citizenship Act (CCA) applies only to those children born on or after February 27, 2001, or those who were under 18 years of age as of that date. Persons who were 18 years of age or older on February 27, 2001, do not qualify for citizenship under INA 320. For such persons, the law in effect at the time the last condition was met before reaching 18 years of age is the relevant law to determine whether they acquired citizenship. [9] See Chapter 3, United States Citizens at Birth (INA 301 and 309) [12 USCIS-PM H.3].

In general, former INA 321 applies to children who were already 18 years of age on February 27, 2001, but who were under 18 years of age in 1952, when the current Immigration and Nationality Act became effective.

In general, a child born outside of the United States to two foreign national parents, or one foreign national parent and one U.S. citizen parent who subsequently lost U.S. citizenship, acquires citizenship under former INA 321 if:

The child’s parent(s) meet one of the following conditions:

Both parents naturalize;

One surviving parent naturalizes if the other parent is deceased;

One parent naturalizes who has legal custody of the child if there is a legal separation of the parents; or

The child’s mother naturalizes if the child was born out of wedlock and paternity has not been established by legitimation.

The child is under 18 years of age when his or her parent(s) naturalize; and

The child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.

As originally enacted in 1952, this section did not apply to adopted children of naturalized citizens. [10] See Section 321(b) of INA of 1952, Pub. L. 82-414, 66 Stat. 163, 245 (June 27, 1952). Beginning on October 5, 1978, however, INA 321 became generally applicable to an adopted child if the child was residing in the United States at the time the adoptive parent or parents naturalized and the child was in the custody of his or her adoptive parents pursuant to a lawful admission for permanent residence. [11] See Section 5 of the Act of October 5, 1978, Pub. L. 95-417. The 1978 amendment limited this benefit to a child adopted while under 16 years of age. This restriction was removed in 1981 by the Act of December 21, 1981, Pub. L. 97-116, but is also included in the definition of “child” in INA 101(c).

D. Application for Certificate of Citizenship (Form N-600)

A person who automatically obtains citizenship is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. passport with the Department of State to serve as evidence of his or her U.S. citizenship.

A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child's U.S. citizen biological parent, adoptive parent, or legal guardian must submit the application. [12] See 8 CFR 320.3(a).

USCIS will issue proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so. [13] See Section G, Decision and Oath of Allegiance [12 USCIS-PM H.4(G)]. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].

E. Documentation and Evidence

The applicant must submit the following required documents unless such documents are already contained in the USCIS administrative record or do not apply: [14] See 8 CFR 320.3(b).

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.

Copy of Permanent Resident Card or Alien Registration Receipt Card or other evidence of lawful permanent resident status, such as an I-551 stamp in a valid foreign passport or travel document issued by USCIS.

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 parent(s) had custody of, and lived with, the child for at least two years. [15] See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child [12 USCIS-PM H.2(C)].

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). [16] 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.

For a Hague Convention adoptee, 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). [17] If admitted as an IH-4, the parent(s) must have completed the adoption in the United States.

If the child was admitted as an LPR as an orphan or Hague Convention adoptee [18] See INA 101(b)(1). (this evidence may already be in the child’s A-file).

Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.

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.

F. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or parents if the application is filed on behalf of a child under 18 years of age. [19] See 8 CFR 320.4. USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant's eligibility is already included in USCIS administrative records or if the required documentation is submitted along with the application. [20] See 8 CFR 341.2. See Section E, Documentation and Evidence [12 USCIS-PM H.5(E)].

G. 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 Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship. [21] See 8 CFR 320.5(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].

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. [22] See INA 337(a). See 8 CFR 341.5(b). 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. [23] See 8 CFR 320.5(b) and 8 CFR 103.3(a). An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes

1.

See INA 320. See Nationality Chart 3.

 

2.

February 27, 2001 is the effective date for these CCA amendments.

 

3.

If the requirements of INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

 

4.

A person is generally considered to be an LPR once USCIS approves his or her adjustment application or once he or she enters the United States with an immigrant visa. See INA 245(b). For certain classifications, however, the effective date of becoming an LPR is a date that is earlier than the actual approval of the status (commonly referred to as a “rollback” date). See Part D, General Naturalization Requirements, Chapter 2, LPR Admission for Naturalization, Section A, LPR at Time of Filing and Naturalization [12 USCIS-PM D.2(A)]. A person who is born a U.S. national and is the child of a U.S. citizen may establish eligibility for a Certificate of Citizenship without having to establish LPR status.

 

5.

See INA 320. See 8 CFR 320.2. Children of U.S. government employees temporarily stationed abroad are considered to be “residing in the United States” for purposes of acquisition of citizenship under INA 320.

 

6.

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

 

7.

See 8 CFR 320.1.

 

8.

If the requirements of INA 101(b)(1)(E), or INA 101(b)(1)(F), or INA 101(b)(1)(G) are met.

 

9.

See Chapter 3, United States Citizens at Birth (INA 301 and 309) [12 USCIS-PM H.3].

 

10.

See Section 321(b) of INA of 1952, Pub. L. 82-414, 66 Stat. 163, 245 (June 27, 1952).

 

11.

See Section 5 of the Act of October 5, 1978, Pub. L. 95-417. The 1978 amendment limited this benefit to a child adopted while under 16 years of age. This restriction was removed in 1981 by the Act of December 21, 1981, Pub. L. 97-116, but is also included in the definition of “child” in INA 101(c).

 

12.

See 8 CFR 320.3(a).

 

13.

See Section G, Decision and Oath of Allegiance [12 USCIS-PM H.4(G)]. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].

 

14.

See 8 CFR 320.3(b).

 

15.

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

 

16.

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.

 

17.

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

 

18.

See INA 101(b)(1).

 

19.

See 8 CFR 320.4.

 

20.

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

 

21.

See 8 CFR 320.5(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].

 

22.

See INA 337(a). See 8 CFR 341.5(b).

 

23.

See 8 CFR 320.5(b) and 8 CFR 103.3(a).

 

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] See Nationality Chart 4.

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] See INA 322.

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] Adoptive parent must meet requirements of either INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

The child’s U.S. citizen parent or citizen grandparent meets certain physical presence requirements in the United States or an outlying possession; [4] See Section C, Physical Presence of U.S. Citizen Parent or Grandparent [12 USCIS-PM H.5(C)].

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

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 five years of the parent's death. [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 (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.

C. Physical Presence of the U.S. Citizen Parent or Grandparent [7] See INA 322(a)(2). See 8 CFR 322.2(a)(2).

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 five 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] 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).

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 five 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] See INA 322(a)(5). See 8 CFR 322.2(a)(5).

The child is required to maintain the lawful status that he or she was admitted under while in the United States; [10] See INA 322(a)(5). and

The child is required to take the Oath of Allegiance in the United States unless the oath requirement is waived. [11] See INA 322(b). See Section G, Decision and Oath of Allegiance [12 USCIS-PM H.5(G)].

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] 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).

E. 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 five years after the death of the U.S. citizen parent. [13] See 8 CFR 322.3(a).

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.

F. 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. [14] See 8 CFR 322.3(b).

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. [15] See INA 322(d)(2). 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 two years. [16] See INA 101(b)(1)(E). See Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child [12 USCIS-PM H.2].

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). [17] 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.

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

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.

G. 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. [19] See 8 CFR 322.4. 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. [20] See 8 CFR 341.2. See Section F, Documentation and Evidence [12 USCIS-PM H.5(F)].

H. 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. [21] 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].

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. [22] See INA 337(a). See 8 CFR 341.5(b). 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. [23] See 8 CFR 322.5(b) and 8 CFR 103.3(a). 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 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 (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 G, Decision and Oath of Allegiance [12 USCIS-PM H.5(G)].

 

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 8 CFR 322.3(a).

 

14.

See 8 CFR 322.3(b).

 

15.

See INA 322(d)(2).

 

16.

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

 

17.

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.

 

18.

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

 

19.

See 8 CFR 322.4.

 

20.

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

 

21.

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].

 

22.

See INA 337(a). See 8 CFR 341.5(b).

 

23.

See 8 CFR 322.5(b) and 8 CFR 103.3(a).

 

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] ​ 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)​].​

1. Eligibility for Special Provision

A child [2] The child must be 18 years of age or older to apply for naturalization. is eligible for naturalization under the spousal naturalization provisions [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). 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] See INA 204(a)(1)(B)(ii). The definition of child includes certain stepchildren. See INA 101(b)(1).

An approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) as the derivative child [5] A derivative child is an unmarried child who can accompany the principal beneficiary based on a parent-child relationship. 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] 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). 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] See INA 240A(b)(2)(A)(i)(I) or INA 240A(b)(2)(A)(i)(III).

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 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).

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

Stepchildren of U.S. citizens may also naturalize under this provision if otherwise eligible. [10] See INA 101(b)(1).

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] See INA 319(a).

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

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

1. Eligibility for Special Provision


​A surviving child, who has not already acquired U.S. citizenship, may be eligible for naturalization.
[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]. 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] 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]. 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] See Part H, Children of U.S. Citizens, Chapter 2, Definition of Child for Citizenship and Naturalization [12 USCIS-PM H.2]. 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] For further guidance on the definition of child for citizenship and naturalization purposes, see Chapter 2, Definition of Child for Citizenship and Naturalization [12 USCIS-PM H.2]. 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 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 (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 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 for Citizenship and Naturalization [12 USCIS-PM H.2].

 

Appendices

Nationality Chart 1

Appendix: Children Born Outside the United States in Wedlock (Nationality Chart 1)

Nationality Chart 1

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]. Born Outside the United States in Wedlock

PERIOD IN WHICH CHILD WAS BORN

STEP 1: Determine period in which child was born

CITIZENSHIP OF PARENTS AT TIME OF CHILD’S BIRTH

STEP 2: Determine parents’ citizenship at time of child’s birth

PARENTS’ RESIDENCE & PHYSICAL PRESENCE PRIOR TO CHILD’S BIRTH

STEP 3: Did U.S. citizen (USC) parent meet residence or physical presence requirement prior to birth? (If yes, child was a USC at birth)

CHILD’S RETENTION REQUIREMENT

STEP 4: Did child meet retention requirement (if any)? (Child lost citizenship on date it became impossible to meet requirement)

Prior to

May 24, 1934

Either parent a USC [2] USC mother added by Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416, 108 Stat. 4305 (October 5, 1994).

USC parent resided in the United States

Not Applicable

On or After May 24, 1934

and Prior To

Jan. 13, 1941

Both parents USCs

At least one USC parent resided in the United States

Not Applicable

One USC parent and one alien parent

USC parent resided in the United States

5 years residence [3] Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee. in the United States or Outlying Possession (OLP) between ages 13 and 21 (must start before age 16) [4] See former Section 301(b) in the INA of 1952, Pub. L. 82-414, 66 Stat. 163, 236 (June 27, 1952). The child’s residence must also start before the INA of 1952’s effective date, December 24, 1952.

OR

5 years continuous physical presence in the United States between ages 14 and 28 (must start before age 23)

OR

2 years continuous physical presence in the United States between ages 14 and 28 (must start before age 26)

OR

Exempt, if at time of child’s birth, USC parent was employed by U.S. government or specified organization

On or After Jan. 13, 1941

and Prior To Dec. 24, 1952

One USC parent and one alien parent

USC parent resided in United States or OLP for 10 years, at least 5 years of which were after age 16

Special provisions for parents with honorable service in the U.S. armed forces:

(1) Between Dec. 7, 1941 and Dec. 31, 1946, 10 years of residence, at least 5 years of which were after age 12

(2) Between Jan. 1, 1947 and Dec. 24, 1952, 10 years of physical presence, at least 5 years of which were after age 14 [5] Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

5 years residence in the United States or OLP between ages 13 and 21 (must start before age 16) [6] See former Section 301(b) in the INA of 1952, Pub. L. 82-414, 66 Stat. 163, 236 (June 27, 1952). The child’s residence must also start before the INA of 1952’s effective date, December 24, 1952.

OR

5 years continuous physical presence in the United States between ages 14 and 28 (must start before age 23) [7] See Act of October 27, 1972, Pub. L. 92-584, 86 Stat. 1289. The child’s residence must also start before the Act’s effective date, October 27, 1972.

OR

2 years continuous physical presence in the United States between ages 14 and 28 (must start before age 26)

OR

Exempt, if at time of child’s birth, USC parent was employed by U.S. government or specified organization (exemption does not apply if parent used a special provision in column 3) [8] Absence of less than 12 months in the aggregate during the 5-year period does not break continuity of residence or physical presence. Absence of less than 60 days in the 2-year period in the aggregate does not break continuity of physical presence. Honorable service in the U.S. armed forces counts as residence or physical presence.Retention Requirements•A child is relieved from the retention requirements if, prior to his or her 18th birthday, the child begins to reside permanently in the United States and the foreign national parent naturalizes.​•The Act of October 10, 1978, Pub. L. 95-423, repealed retention requirements prospectively only. Anyone born on or after October 11, 1952 (not age 26 on October 10, 1978) was no longer subject to retention requirements. Since the amending legislation was prospective only, it did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.

Both parents USCs

At least one USC parent resided in the United States or OLP [9] Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

Not Applicable

On or After Dec. 24, 1952


​and Prior To
Nov. 14, 1986

Both parents USCs

At least one USC parent resided in the United States or OLP [10] Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

Not Applicable

One USC parent and one alien parent

USC parent physically present in the United States or OLP for 10 years, at least 5 years of which were after age 14 [11] Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

Not Applicable

On or After Nov. 14, 1986

Both parents USCs

At least one USC parent resided in the United States or OLP

Not Applicable

One USC parent and one alien parent

USC parent physically present in the United States or OLP for 5 years, at least 2 years of which were after age 14 [12] See former Section 301(b) in the INA of 1952, Pub. L. 82-414, 66 Stat. 163, 236 (June 27, 1952). The child’s residence must also start before the INA of 1952’s effective date, December 24, 1952.

Not Applicable

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].

2 [^]

USC mother added by Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416, 108 Stat. 4305 (October 5, 1994).

3 [^]

Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

4 [^]

See former Section 301(b) in the INA of 1952, Pub. L. 82-414, 66 Stat. 163, 236 (June 27, 1952). The child’s residence must also start before the INA of 1952’s effective date, December 24, 1952.

5 [^]

Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

6 [^]

See former Section 301(b) in the INA of 1952, Pub. L. 82-414, 66 Stat. 163, 236 (June 27, 1952). The child’s residence must also start before the INA of 1952’s effective date, December 24, 1952.

7 [^]

See Act of October 27, 1972, Pub. L. 92-584, 86 Stat. 1289. The child’s residence must also start before the Act’s effective date, October 27, 1972.

8 [^]

Absence of less than 12 months in the aggregate during the 5-year period does not break continuity of residence or physical presence. Absence of less than 60 days in the 2-year period in the aggregate does not break continuity of physical presence. Honorable service in the U.S. armed forces counts as residence or physical presence.

Retention Requirements

A child is relieved from the retention requirements if, prior to his or her 18th birthday, the child begins to reside permanently in the United States and the foreign national parent naturalizes.

The Act of October 10, 1978, Pub. L. 95-423, repealed retention requirements prospectively only. Anyone born on or after October 11, 1952 (not age 26 on October 10, 1978) was no longer subject to retention requirements. Since the amending legislation was prospective only, it did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.

9 [^]

Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

10 [^]

Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

11 [^]

Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as a dependent, unmarried son or daughter, who is member of the household of such an employee.

12 [^]

See former Section 301(b) in the INA of 1952, Pub. L. 82-414, 66 Stat. 163, 236 (June 27, 1952). The child’s residence must also start before the INA of 1952’s effective date, December 24, 1952.

Nationality Chart 2

Appendix: Children Born Outside the United States Out of Wedlock (Nationality Chart 2)

Nationality Chart 2 (4 tables below)

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]. Born Outside the United States Out of Wedlock

Child Born Out of Wedlock to U.S. Citizen Mother (Table 1 of 4)

PERIOD IN WHICH CHILD WAS BORN

ELIGIBILITY REQUIREMENTS

Prior To

May 24, 1934

The child was born an alien. HOWEVER, the child became a U.S. citizen (USC) retroactively to birth, effective on Jan. 13, 1941, if the child’s mother resided in the United States or Outlying Possession (OLP) prior to the child’s birth, UNLESS the child was legitimated by the alien father prior to Jan. 13, 1941.

On or After

May 24, 1934

and Prior To

Dec. 24, 1952

The mother resided in the United States or OLP at any time prior to the child’s birth.

On or After

Dec. 24, 1952

and Prior To

June 12, 2017

The mother maintained at least 1 year of continuous physical presence in the United States or OLP at any time prior to the child’s birth.

On or After

June 12, 2017 [2] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

The mother was physically present in the United States or OLP for at least 5 years prior to the child’s birth (at least 2 years of which were after age 14).

Child Born Out of Wedlock to U.S. Citizen Father and Alien Mother

Child Legitimated by Father (Table 2 of 4)

PERIOD IN WHICH CHILD WAS BORN

ELIGIBILITY REQUIREMENTS

Prior To

May 24, 1934

The child was legitimated at any time after birth under the laws of the father’s domicile;

The USC father resided in the United States prior to the child’s birth; and

No residence required for the child to retain U.S. citizenship.

On or After

May 24, 1934

and Prior To

Jan. 13, 1941

The child was legitimated at any time after birth under the laws of the father’s domicile;

The USC father resided in the United States prior to the child’s birth; [3] Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as the dependent unmarried son who resided as a member of the employee’s household during any relevant period(s) of absence from the United States. and

The child met retention requirements.

See Nationality Chart 1 for retention requirements.

On or After

Jan. 13, 1941

and Prior To

Dec. 24, 1952

The child was legitimated before age 21 under the laws of the father’s domicile;

The USC father resided in the United States or OLP for at least 10 years, at least 5 years of which were after age 14, at the time of the child’s birth; and

The child met retention requirements.

See Nationality Chart 1 for special provisions and for retention requirements.

On or After

Dec. 24, 1952

and Prior To

Nov. 14, 1986

The child was legitimated before age 21 under the laws of the father’s domicile; [4] In cases arising within the Ninth Circuit, the laws of the father’s residence and the laws of the child’s residence must be considered to determine whether legitimation occurred. See Burgess v. Meese, 802 F.2d 338 (9th Cir. 1986).

The child was legitimated PRIOR TO Nov. 14, 1986;

The child must be unmarried;

The USC father was physically present in the United States or OLP for 10 years, at least 5 years of which were after age 14, at the time of the child’s birth; and

No residence required for the child to retain U.S. citizenship.

See Nationality Chart 1 for special provisions.

Child Born Out of Wedlock to U.S. Citizen Father and Alien Mother

Child Legitimated or Acknowledged by Father (Table 3 of 4)

DATE RELATIONSHIP ESTABLISHED

ELIGIBILITY REQUIREMENTS

On or After

Nov. 14, 1986

The child was legitimated OR acknowledged before age 18* (legitimated under the laws of the child’s residence or domicile; or paternity acknowledged in writing under oath; or paternity established by court order);

A blood relationship between the child and father was established;

The father, unless deceased, has agreed in writing to provide financial support until child reaches age 18; [5] For additional information regarding a written statement of financial support, see Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

The child must be unmarried; and

The USC father was physically present in the United States or OLP for 5 years, at least 2 years of which were after age 14, at the time of the child’s birth.

*A child age 18 or over on Nov. 14, 1986 could use the old law. [6] See Child Born Out Of Wedlock to U.S. Citizen Father and Alien Mother; Child Legitimated by Father (Table 2 of 4). A child at least age 15, but under 18, could use either law (date of birth on or after Nov. 15, 1968).

Child Born Out of Wedlock to Two U.S. Citizen Parents (Table 4 of 4)

PERIOD IN WHICH CHILD WAS BORN

ELIGIBILITY REQUIREMENTS

If both parents are U.S. citizens, the child may qualify under either parent. The child must meet the requirements for acquisition of citizenship under the mother OR the father; the child does not need to meet both requirements.

On or After

Dec. 24, 1952

and Prior To

Nov. 14, 1986

Citizenship through U.S. Citizen Mother

The mother had at least 1 year of continuous physical presence in the United States or OLP at any time prior to the child’s birth.

Citizenship through U.S. Citizen Father

The child was legitimated before age 21 under the laws of the father’s domicile; [7] In cases arising within the Ninth Circuit, the laws of the father’s residence and the laws of the child’s residence must be considered to determine whether legitimation occurred. See Burgess v. Meese, 802 F.2d 338 (9th Cir. 1986).

The child was legitimated PRIOR TO Nov. 14, 1986;

The child must be unmarried; and

Either parent resided in the United States at any time prior to the child’s birth.

On or After

Nov. 14, 1986

and Prior To

June 12, 2017

Citizenship through U.S. Citizen Mother

The mother had at least 1 year of continuous physical presence in the United States or OLP at any time prior to the child’s birth.

Citizenship through U.S. Citizen Father

The child was legitimated OR acknowledged before age 18* (legitimated under the laws of the child’s residence or domicile; or paternity acknowledged in writing under oath; or paternity established by court order);

A blood relationship between the child and father was established;

The father, unless deceased, has agreed in writing to provide financial support until child reaches age 18; [8] For additional information regarding a written statement of financial support, see Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

The child must be unmarried; and

Either parent resided in the United States at any time prior to the child’s birth.

*A child age 18 or over on Nov. 14, 1986 could use the old law. [9] See Child Born Out Of Wedlock to U.S. Citizen Father and Alien Mother; Child Legitimated by Father (Table 2 of 4). A child at least age 15, but under 18, could use either law (date of birth on or after Nov. 15, 1968).

On or After

June 12, 2017

Citizenship through U.S. Citizen Father

The child was legitimated OR acknowledged before age 18 (legitimated under the laws of the child’s residence or domicile; or paternity acknowledged in writing under oath; or paternity established by court order);

A blood relationship between child and father was established;

The father, unless deceased, has agreed in writing to provide financial support until child reaches age 18; [10] For additional information regarding a written statement of financial support, see Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

The child must be unmarried; and

Either parent resided in the United States at any time prior to the child’s birth.

If the child does not meet these requirements, but one or both parents resided in the United States at any time prior to the child’s birth, the officer should consult the Office of Chief Counsel (OCC).

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].

2 [^]

See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

3 [^]

Includes periods spent abroad while employed by the U.S. government or an international organization as defined in 22 U.S.C. 288, or as the dependent unmarried son who resided as a member of the employee’s household during any relevant period(s) of absence from the United States.

4 [^]

In cases arising within the Ninth Circuit, the laws of the father’s residence and the laws of the child’s residence must be considered to determine whether legitimation occurred. See Burgess v. Meese, 802 F.2d 338 (9th Cir. 1986).

5 [^]

For additional information regarding a written statement of financial support, see Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

6 [^]

See Child Born Out Of Wedlock to U.S. Citizen Father and Alien Mother; Child Legitimated by Father (Table 2 of 4).

7 [^]

In cases arising within the Ninth Circuit, the laws of the father’s residence and the laws of the child’s residence must be considered to determine whether legitimation occurred. See Burgess v. Meese, 802 F.2d 338 (9th Cir. 1986).

8 [^]

For additional information regarding a written statement of financial support, see Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

9 [^]

See Child Born Out Of Wedlock to U.S. Citizen Father and Alien Mother; Child Legitimated by Father (Table 2 of 4).

10 [^]

For additional information regarding a written statement of financial support, see Volume 12, Citizenship & Naturalization, Part H, Children of U.S. Citizens, Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section C, Child Born Out of Wedlock [12 USCIS-PM H.3(C)].

Nationality Chart 3

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.

Nationality Chart 4

Appendix: Children of U.S. Citizens Regularly Residing Outside United States (INA 322) (Nationality Chart 4)

Nationality Chart 4

Children of U.S. Citizens Regularly Residing
​Outside the United States (INA 322)
[1] Since the enactment of the Immigration and Nationality Act (INA) of 1952, Pub. L. 82-414 (June 27, 1952), Congress has provided for the naturalization of a child under age 18 upon petition by the U.S. citizen parent. See INA 322. The requirements varied with different amendments, but naturalization under this provision always required an application or petition by the parent; citizenship was not automatic.

GENERAL REQUIREMENTS

PHYSICAL PRESENCE OF
​PARENT OR GRANDPARENT

Must meet the definition of child under INA 101(c)(1). [2] 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]. See INA 101(c)(1).

The child has at least one U.S. citizen (USC) parent by birth or through naturalization (including an adoptive parent). An adoptive parent must meet the requirements of INA 101(b)(1)(E), INA 101(b)(1)(F), or INA 101(b)(1)(G).

The child’s USC parent or USC grandparent meets physical presence requirements.

The child is under 18 years of age (at the time of adjudication and the taking of the Oath of Allegiance, [3] See Volume 12, Citizenship & Naturalization, Part J, Oath of Allegiance [12 USCIS-PM J]. unless the Oath is waived because the child is unable to understand its meaning by reason of mental incapacity or young age).

The child is residing outside of the United States in the legal and physical custody of the USC parent, or a person who does not object to the application if the USC parent is deceased.

At the time the application is approved and time of naturalization, the child is lawfully admitted, physically present, and maintaining a lawful status in the United States. Both the child and the citizen parent must appear at an interview.

Children of Military Members

For children of military members authorized to accompany the member abroad and residing with the military member parent:

The parent’s authorized period abroad counts as physical presence in the United States;

The child does not need to reside in the United States in lawful status; and

The child may take the Oath abroad. [4] See INA 322(d).

U.S. Citizen Grandparent or Legal Guardian Filing on Behalf of Child

If the USC parent has died, the child’s USC grandparent or USC legal guardian may file on the child’s behalf within 5 years of the USC parent’s death.

U.S. Citizen Parent

USC parent was physically present in the United States or its outlying possessions for at least 5 years (at least 2 years of which were after age 14)

OR

U.S. Citizen Grandparent

If the USC parent has died, the USC parent must have met the physical presence requirement stated above at time of death. If the child’s USC parent does not meet the requirement, the child may rely on the physical presence of the child’s USC grandparent (at least 5 years, at least 2 years of which were after age 14), provided the grandparent meets the requirement as of the USC parent’s time of death.

Footnotes


1 [^]

Since the enactment of the Immigration and Nationality Act (INA) of 1952, Pub. L. 82-414 (June 27, 1952), Congress has provided for the naturalization of a child under age 18 upon petition by the U.S. citizen parent. See INA 322. The requirements varied with different amendments, but naturalization under this provision always required an application or petition by the parent; citizenship was not automatic.

2 [^]

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]. See INA 101(c)(1).

3 [^]

See Volume 12, Citizenship & Naturalization, Part J, Oath of Allegiance [12 USCIS-PM J].

4 [^]

See INA 322(d).

Updates

POLICY ALERT – Special Naturalization Provisions for Children

September 26, 2018

​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.

Technical Update – Certificates of Citizenship for U.S. National Children

August 15, 2018

This technical update clarifies that a person who is born a U.S. national and is the child of a U.S. citizen may acquire citizenship and may obtain a Certificate of Citizenship without having to establish lawful permanent resident status.

POLICY ALERT – Acquisition of U.S. Citizenship for Children Born Out of Wedlock

April 18, 2018

U.S. Citizenship and Immigration Services (USCIS) is updating policy guidance to clarify certain requirements for U.S. citizenship for children born outside the United States and out of wedlock under INA 301 and 309. USCIS is making conforming edits to the USCIS nationality charts.

POLICY ALERT – Effective Date of Lawful Permanent Residence for Purposes of Citizenship and Naturalization

July 27, 2016

​U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance regarding the date of legal permanent residence (LPR) for naturalization and citizenship purposes. 

Technical Update – Child Citizenship Act and Children of U.S. Government Employees Residing Abroad

July 20, 2015

This technical update clarifies that the child of a U.S. government employee temporarily stationed abroad is considered to be residing in the United States for purposes of acquisition of citizenship under INA 320.

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).

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.