Children of U.S. Citizens - Acquisition and Derivative

Acquisition and derivative citizenship is based on federal law.  There is no constitutional amendment to set out a bright line rule.  Therefore, how citizenship is acquired or derived is based on policy set forth by Congress.  For example, the law relating to derivative citizenship for lawful permanent resident children gaining citizenship through their parents’ citizenship has been changed by Congress six times since 1934.  The last change in U.S. law occurred in 2001.  The determination of whether a person derived citizenship is based largely on the date the last act occurred and the law in effect at the time.  Distinctions in the changes within the law are drawn upon legitimization by a parent, distinctions between a U.S. citizen mother or father, and nuances of legal and physical custody.  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.

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.

The two major changes in U.S. law occurred 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. The current law is known as the Child Citizenship Act (CCA), which amended INA § 320. The CCA requires:[1]

1) At least one parent is a U.S. citizen either by birth or naturalization;

2) In the case of a child born out of wedlock, the mother must be the one who is or becomes a citizen OR, if the father is a US citizen through naturalization or other means then the child must have been legitimated by the father under either the law of the child’s residence or domicile or the law of the father’s residence or domicile and the legitimation must take place before the child reaches the age of 16;

3) Child is under 18 years of age;

4) Child must be unmarried;

5) Child is a lawful permanent resident;

6) Child is residing in the U.S. in the legal and physical custody of the citizen parent;

7) Adopted children qualify so long as he or she was adopted before the age of 16 and has been in the legal custody of, and has resided with, the adopting parent(s) for at least two years.  An adopted child who also qualifies as an orphan under INA § 101(b)(1)(F) also will qualify for derivation.

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.

A.     Definition of a Child

The definition of “child” for citizenship and naturalization differs from the definition used in other sections of the INA. The INA provides two different definitions of “child.” One definition of child applies to approval of visa petitions, issuance of visas, and similar issues and is found in Title I of the INA.  The second definition applies to citizenship and naturalization and is found in Title III of the INA.

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.[2]

The definition of “child” for the citizenship and naturalization provisions is an unmarried person under 21 years of age; and the biological, legitimated, or adopted son or daughter of a U.S. citizen.[3]

It is important to note that the definition of “child” must meet specific requirements relating to birth in wedlock or out of wedlock, which may require that certain conditions be met by 18 years of age rather than 21.  The requirement that a child reside in the United States for a certain period of time to retain citizenship was eliminated by Congress in 1994. Although not dealt with specifically in the INA, a child may be born through assisted reproductive technology, which refers to fertility treatments where either the egg or sperm is handled outside the body.  The parent may use a combination of his or her own genetic material or donated material.[4]

It is important to note the distinction between the definition of “child” in Title I and Title II of the INA.  Another important issue to whether a child can acquire citizenship is based on gender differencses.  The INA sets out a distinctions based on legitimation by a father as to whether citizenship may be “transmitted” to the child.

B. Legitimated Child

Legitimation is defined as the “the act of putting a child born out of wedlock in the same legal position as a child born in wedlock.” Matter of Cabrera, 21 I & N Dec. 589 (BIA 1996).  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. If the father or child had various residences before the child reached 18 or 21 years of age (depending on the applicable provision), then all the relevant laws of the places of residence must be considered.  A legitimated child is presumed to be in the legal custody of the legitimating parent.  Matter of Rivers, 17 I & N Dec. 419, 422 (BIA 1980).

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 the child's residence or domicile, or under the law of the child’s father's residence or domicile;

•   The child is legitimated as such before he or she reaches 16 years of age (except for certain cases where the child may be legitimated before reaching 18 years of age); and

•   The child is in the legal custody of the legitimating parent or parents at the time of the legitimation.

Legitimation has a basis in public policy as the United States does not want immigration status or citizenship in particular transmitted from a parent to a child where that parent may have no involvement in the child’s life or ties to the United States other than status.  A major issue with legitimation is that there are often cultural distinctions between the acts of marriage.  Many cultures do not adhere to formal acts of marriage as the United States or there may be distinctions between religious marriage and civil marriage.  Therefore, a child may have been born in wedlock based on aspects of common or a particular religion’s law in various countries, but may be categorized as out of wedlock in the United States.  The process to legitimate the child and put that child in the status of being born in wedlock will be up to an officer in the United States who is often determining the law of a foreign country.  Legitimation can create chaotic situations where parent / child relationships are determine by adjudicators basing decisions on their interpretation of foreign law and deciphering foreign documents and cultural practices.

C. Adopted Child

Adoption is another area of the child / parent relationship that can often determine citizenship for a child.  While many adoptions in the United States are formal and conducted through a legal process, others are not.  This is especially true where an adoption may have taken place in a foreign country by a non-U.S. citizen who later naturalizes.  That naturalized parent may have raised the child since an early age, but never completed a formal adoption process in the home country or within the United States.  This can lead to absurd results of children – brought to the United States as infants while living and residing with United States citizens are not considered a “child” for the acquisition of citizenship. 

An adopted child means that the child has been adopted through a full, final, and complete adoption. A child is an adopted son or daughter of his or her U.S. citizen parent if the child is adopted in the United State or abroad, the child is adopted before he or she reaches the age of sixteen (with limited exceptions in cases where the child may be adopted before 18), and the child is in the legal custody of the parent(s) at the time of adoption.  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).[5]

The process of adoption without the full and final regularity expected in the United States is based on sound public policy.  The United States does not want children from foreign countries being brought into the United States by illegitimate means and allow the transmission of citizenship to the child through the illegitimate parent.  However, the absurdity of an adopted child not being considered a “child” for the transmission of citizenship is compounded in the case of orphans.

D. Orphan

In general, the definition for adopted children applies to adopted orphans. USCIS, however, does not consider an orphan adopted if 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.[6]

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. Orphans are obviously a very vulnerable group.  Unfortunately, in many countries orphans end up with parents who do not follow formal procedures.  Some orphans are sent to the live with new parents in the United States at a very young age.  However, without the formal procedure of adoption then the orphan many not be considered a child for the transmission of citizenship from parent to child.

The question of what is a child under Title III of the INA for the transmission of citizenship is threshold question.  If the individual is not considered a child then the process of transmission of citizenship from parent to child cannot take place.  The transmission of citizenship from parent to child is formally known as acquisition and derivation of citizenship.

E.  General Requirements for Acquisition of Citizenship at Birth (INA 301 and 309)

There is a presumption of alienage for any individual born outside of the United States.  Matter of Tijerina-Villarreal, 13 I & N Dec. 327, 330 (BIA 1969).  The burden to rebut the presumption is on the petitioner. In general, a person born outside of the United States may acquire citizenship at birth if one parent 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.  This includes any time spent abroad in the U.S. armed forces or other qualifying organization.[7]  Requirements of physical presence for the child in the United States to retain their citizenship were eliminated under the Act of October 10, 1978.  However, there may be some individuals born before that date that remain subject to the retention requirement.[8]  

The residence or physical presence of the United States citizen parent is established by the law in effect at the time of the child’s birth.  The United States citizen parent must reside or be physically present in the U.S. for specified time periods in order for the “transmission” of citizenship.

In order to determine the law applicable at the time of the child’s birth it is best to reference nationality charts.

•   https://www.ilrc.org/sites/default/files/resources/natz_chart_b-7-14-20.pdf

F.     Derivation of Citizenship (INA 320)

A child born outside the United States may become a citizen by virtue of his or her parents’ citizenship through birth or naturalization.  The current version of the law governing derivation no longer requires that the parents be legally separated or divorced if the child is in the custody of one parent.  The Child Citizenship Act of 2000 removed that requirement and instead states that a child derives citizenship as long as:

1) one parent is a citizen by birth or naturalization;

2) the child was under 18 at the time of the parent’s naturalization;

3) the child is residing in the U.S. as an LPR;

4) the child is residing the legal and physical custody of the U.S. citizen parent.[9]

There is a presumption of legal custody in all of the following scenarios absent evidence to the contrary:

•   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;

•     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.

The law governing whether a child derived citizenship is determined by the date of the last act (e.g., date of naturalization of the parent, date of LPR status of child).  To determine the law that governs a particular case it is a best practice to reference the chart, available at: https://www.ilrc.org/sites/default/files/resources/natz_chart-c-2020-7-14.pdf

G.    Child Residing Outside the United States (INA 322)

A child who does not acquire citizenship at birth abroad or derive citizenship through the naturalization of a parent may obtain a certificate of citizenship if:

1) one parent is a United States citizen;

2) the child is temporarily present in the United States pursuant to a lawful admission and in legal status;

3) the child is under the age of 18; and

4) the child is residing outside the U.S. in the legal and physical custody of the United States citizen parent who has been in the U.S. 5 years, 2 of which were after the parent’s 14th birthday.  Exemptions exist of children of persons serving in the armed forces.[10] 

For children of U.S. citizens regularly residing abroad (INA § 322): https://www.ilrc.org/sites/default/files/resources/natz_chart-a-2020-7-14.pdf

H.  Application for Certificate of Citizenship

A person may be a United States citizen, but without proper proof then that person will not enjoy the benefits of the status.  A persona may either apply for United States passport or apply for a Certificate of Citizenship.  It is common for individuals to apply for a certificate of citizenship from USCIS given the complexity of many derivation and acquisition cases.

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.[11]  An applicant of 18 years of age may submit an application on their own behalf.  If the applicant is under the age of 18 then a U.S. citizen parent or legal guardian must submit the application.[12]

In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. 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.

[1] Immigrant Legal Resource Center (IRLC), Naturalization Quick Reference Charts, available at: http://www.ilrc.org/resources/naturalization-quick-reference-charts.  See also, U.S. Department of Homeland Security, Bureau of Citizenship and Immigration Services, “Eligibility of Children Born out of Wedlock for Derivative Citizenship,” Memo Number HQ 70/34.2-P, Septeber 26, 2003.

[2] USCIS Policy Manual, Volume 12, Part H, Chapter 2, “Definition of Child” [last accessed July 21, 2015]

[3] Id.

[4] Fertility Clinic Success Rate and Certification Act of 1992 (FCSRCA), Pub. L. No. 102-493, 106 Stat. 3146

[5] USCIS Policy Manual, Volume 12, Part H, Chapter 2, Part C: Adoption [last accessed July 21, 2015]

[6] 8 C.F.R. § 320.1; USCIS Policy Manual, Volume 12, Part H, Chapter 2, Part D: Orphan [last accessed July 21, 2015]

[7] INA § 301(g)

[8] The Act of October 10, 1978, Pub. L. 95-432

[9] INA § 320(a)

[10] INA § 322(d)

[11] INA § 309(c)

[12] 8 CFR § 341.1.