8 FAM 301.9
Acquisition of U.S. Citizenship by Parent(s')
Naturalization Prior to the Child Citizenship Act
(CT:CITZ-10; 10-02-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 301.9-1 Introduction
(CT:CITZ-1; 06-27-2018)
a. This subsection discusses evidence of naturalization
under various circumstances, including:
(1) Automatic inclusion of minors in the
naturalization of both parents;
(2) Automatic inclusion of minors in the naturalization
of one parent;
(3) Expeditious naturalization of minors as originally
enacted; and
(4) Expeditious naturalization of minors born to U.S.
citizens abroad as amended by the Immigration and Nationality Technical
Corrections Act of 1994 (INTCA) effective April 1, 1995.
b. Expeditious naturalization of foreign national
minors (both adopted and biological children of U.S. citizen(s)) under the
Child Citizenship Act of 2000 is addressed in 8 FAM 301.10.
8 FAM 301.9-2 Derivative
Naturalization of Children Born Abroad Through Parents Naturalization
(CT:CITZ-1; 06-27-2018)
a. There are two significant dates in determining
derivative naturalization of a child through the parent(s) naturalization:
(1) Date of the naturalization of parent(s) (which
determines which provisions of law and evidentiary requirements apply); and
(2) Age of the child: That the child be residing
permanently in the United States, as a lawful permanent resident (LPR), with
the parents and the parents naturalization occurs before the child reaches the
age specified in the pertinent statute.
b. In addition all U.S. laws regarding automatic
acquisition of derivative citizenship through naturalization of a parent
required that the child be lawfully admitted to the United States for permanent
residence.
8 FAM 301.9-3 Naturalization
Prior to May 24, 1934
(CT:CITZ-1; 06-27-2018)
a. Prior to the passage of the act of March 1907,
minors acquired citizenship of the United States under Section 2172 of the
Revised Statutes through the naturalization of their parents. That section of
law provided citizenship for children of parents duly naturalized, if dwelling
in the United States, and if they were under 21 at the time their parents were
naturalized.
b. Evidence of citizenship claim: A person claiming
derivative naturalization as a result of a parent(s) naturalization prior to
May 24, 1934 must submit the following evidence in support of the claim:
(1) A certified copy of the parent(s) naturalization
certificate bearing the seal of the issuing court;
(2) Evidence that the child was under the age of 21 at
the time the parent(s) were naturalized;
(3) Evidence that the child was residing in the United
States with the parents while under the age of 21; and
(4) Evidence that the child was lawfully admitted to
the United States for permanent residence such as a foreign passport with a
U.S. immigrant visa or Alien Registration Card.
c. Section 5 of the Act of March 2, 1907 provided that
citizenship was not acquired by the child until it began to reside permanently
in the United States. Permanent residence could begin after the parent(s)
naturalization, provided the child was under 21 years of age.
8 FAM 301.9-4 Naturalization
Prior to May 24, 1934 Chart
(CT:CITZ-1; 06-27-2018)
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Date of Parent(s) Naturalization
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Who Naturalized
|
Age Limit
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Date of Automatic Acquisition If Residing in United
States
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Date of Automatic Acquisition If Residing Abroad
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Law Applicable
|
|
Prior to March 2, 1907
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Either parent
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Under 21
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Date of naturalization of parent
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Date child lawfully admitted for to United States for
permanent residence
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Section 2172 Revised Statutes (Act of April 14, 1802)
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March 2, 1907 to Noon Eastern Standard Time May 24, 1934
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Either parent
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Under 21
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Date of naturalization of parent
|
Date child lawfully admitted to United States for
permanent residence
|
Section 2172 Revised Statutes; Section 5 of Act of March
2, 1907
|
8 FAM 301.9-5 Naturalization of
Children by Parents Naturalization On Or After 12 OClock Noon, Eastern
Standard Time, May 24, 1934
(CT:CITZ-1; 06-27-2018)
a. Section 5 of the act of March 2, 1907 was amended by
section 2 of the act of May 24, 1934 to provide citizenship of the United
States for children born abroad of alien parents, through the naturalization by
the father or mother. The naturalization must take place during the childs
minority, and citizenship did not begin until five years after the child began
to reside permanently in the United States.
b. Evidence of citizenship claim: A person claiming
derivative naturalization under the act of May 24, 1934 must submit the
following evidence in support of the claim:
(1) A certified copy of a certificate of
naturalization bearing the seal of the court, issued on or after May 24, 1934;
(2) Evidence of the childs birth reflecting that the
child was under the age of 21 when the parent was naturalized;
(3) Evidence that the child was residing permanently
in the United States for five years after the parents naturalization; and
evidence that the child was lawfully admitted to the United States for
permanent residence such as a foreign passport with a U.S. immigrant visa or
alien registration card;
(4) If one parent is deceased and the applicant is
claiming citizenship through the naturalization of the surviving parent, the
death certificate must be submitted; and
(5) Parent having legal custody: Custody can be
inferred from the totality of the application.
8 FAM 301.9-6 Naturalization of
Children by Parents Naturalization On Or After 12 OClock Noon, Eastern
Standard Time, May 24, 1934 Chart
(CT:CITZ-1; 06-27-2018)
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Date of Parent(s) Naturalization
|
Who Naturalized
|
Age Limit
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Date of Automatic Acquisition If Residing in United States
|
Date of Automatic Acquisition If Residing Abroad
|
Law Applicable
|
|
Noon Eastern Standard Time May 24, 1934 to January 13,
1941
|
One parent, other remaining an alien
Or
Alien parent (other being a citizen);
Or
surviving parent;
Or
Parent having custody in legal separation
|
Under
.21
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Upon completion of 5 years residence in the United
States, including residence completed after age 21 and after January 13, 1941
|
Upon completion of 5 years residence in the United
States, including residence completed after age 21 and after January 13, 1941
|
Section 5 of Act of March 2, 1907, as amended by Section
2 of the Act of May 24, 1934
|
8 FAM 301.9-7 Naturalization of
Children Through Their Parents On and After January 13, 1941 - The Nationality
Act of 1940
(CT:CITZ-1; 06-27-2018)
Evidence of citizenship claim: A person claiming
derivative naturalization under the Nationality Act of 1940 on or after January
13, 1941 (the effective date of the Act), must submit the following in support
of the claim:
(1) A certified copy of the certificate of
naturalization of the parent(s) bearing the seal of the court;
(2) Evidence of the childs birth reflecting that the
child was under the age of 18 when the parent was naturalized; and
(3) Evidence that the child was residing permanently
in the United States on or after the parents naturalization, while under the
age of 18; and evidence that the child was lawfully admitted to the United
States for permanent residence, such as a foreign passport with a U.S.
immigrant visa or alien registration card.
8 FAM 301.9-8 Naturalization of
Children Through Their Parents On and After January 13, 1941 - The Nationality
Act of 1940 Chart
(CT:CITZ-1; 06-27-2018)
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Date of Parent(s) Naturalization
|
Who Naturalized
|
Age Limit
|
Date of Automatic Acquisition If Residing in United States
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Date of Automatic Acquisition If Residing Abroad
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Law Applicable
|
|
January 13, 1941 to December 24, 1952
|
Alien parent, other being U.S. citizen from childs
birth
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Under 18
|
Date of naturalization of parent
|
Date child lawfully admitted for to United States for
permanent residence
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Section 313 Nationality Act of 1940
|
|
January 13, 1941 to December 24, 1952
|
Both parents; surviving parent; or parent having custody
in legal separation
|
Under 18
|
Date of naturalization of parent
|
Date child lawfully admitted to United States for
permanent residence
|
Section 314 Nationality Act of 1940
|
8 FAM 301.9-9 Naturalization of
Children Through Their Parents
8 FAM 301.9-9 (A) On and After
December 24, 1952 - Section 320 of the Immigration and Nationality Act (INA) of
1952, As Originally Enacted
(CT:CITZ-1; 06-27-2018)
a. The now repealed INA 320 was entitled Child Born
Outside of the United States to One Alien Parent and One Citizen Parent At Time
of Birth; Conditions Under Which Citizenship Was Automatically Acquired. Inherent
in the title of the section, as well as in the text, is the requirement that
the U.S. citizen parent must have been a citizen at the time of the child's
birth. The former Section 320(a) read in part as follows: "A child born
outside of the United States, one of whose parents at the time of the child's
birth was an alien and the other of whose parents then was and never thereafter
ceased to be a citizen of the United States." Therefore, in the case at
hand, the U.S. citizen parent must have been a citizen at the time of the
child's birth for the child to avail him or herself of the benefits of the
previous 320. There may still be claims to U.S. citizenship under this section
as originally enacted.
b. The former INA 320(a)(2) also stipulated that the
child must have been "residing in the United States pursuant to a lawful
admission for permanent residence at the time of naturalization or thereafter
and begins to reside permanently in the United States while under the age of
18." It is quite clear that the children did not automatically acquire U.S.
citizenship if they were never in the United States as lawful permanent
residents at the time of the alien parent's naturalization or subsequent
thereto while under the age of either 16 or 18 (subsequent to October 15,
1978).
c. In considering former INA 320 cases, it was
imperative to determine whether or not the child was residing or had begun to
reside permanently in the United States. Absent evidence establishing that the
child had a permanent residence in the United States while under the age of 16
or 18, as applicable, or had begun to establish one, citizenship acquisition
would not occur. It is important therefore to consider INA 101(a)(33) wherein
"residence" is defined as "the place of general abode; the place
of general abode of a person means his principal, actual dwelling place in
fact, without regard to intent." In determining whether an individual has
established a permanent residence, you must consider the specific facts of each
case.
d. Evidence of citizenship claim: A person claiming derivative
naturalization through the naturalization of a parent(s) under INA 320 as
originally enacted must submit the following evidence in support of the claim:
(1) Evidence that one parent was a U.S. citizen at the
time of the childs birth;
(2) A certified copy of the certificate of
naturalization of the alien parent bearing the seal of the court;
(3) Evidence of the childs birth reflecting that the
child was under the age of 18;
(4) Evidence that the child was residing permanently
pursuant to a lawful admission for permanent residence in the United States on
or after the parents naturalization, while under the age of 16; and evidence
that the child was lawfully admitted to the United States for permanent
residence, such as a foreign passport with a U.S. immigrant visa or alien
registration card; and
(5) If born out of wedlock and mother is naturalized,
evidence that paternity has not been established by legitimation.
(6) 7 FAM 1156.10
provides a chart summarizing the provisions of INA 320 as originally enacted,
and as amended.
8 FAM 301.9-9(B) On and After
December 24, 1952 - Section 320 and 321 of the Immigration and Nationality Act
(INA) of 1952, As Originally Enacted Chart
(CT:CITZ-1; 06-27-2018)
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Date of Parent(s) Naturalization
|
Who Naturalized
|
Age Limit
|
Date of Automatic Acquisition If Residing in United States
|
Date of Automatic Acquisition If Residing Abroad When
Parent(s) Naturalized
|
Law Applicable
|
|
Subsequent to October 5, 1978
|
Alien parent, other being U.S. citizen from childs
birth
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Under 18
|
Date of naturalization of parent
|
Date child lawfully admitted to United States for
permanent residence
|
INA 320, as amended
|
|
Subsequent to December 24, 1952
|
Alien parent, other being U.S. citizen from childs
birth
|
Under 16, but see 7 FAM 1156.11,
this section has been reinterpreted to apply from December 24, 1952 to minors
under the age of 18.
|
Date of naturalization of parent
|
Date child lawfully admitted to United States for
permanent residence
|
INA 320, as originally enacted
|
|
Subsequent to December 24, 1952
|
Both parents; surviving parent; parent having custody in
legal separation; or mother of child born out of wedlock
|
Under 16, but see 7 FAM 1156.11,
this section has been reinterpreted to apply from December 24, 1952 to minors
under the age of 18.
|
Date of naturalization of parent
|
Date child lawfully admitted to the United States for
permanent residence
|
INA 321, as originally enacted
|
8 FAM 301.9-9 (C) 1978 and 1981
Amendments to INA 321(a) and New Interpretation of INA 321(a) as Amended
(CT:CITZ-1; 06-27-2018)
a. The act of October 5, 1978, Public Law 95-417, 92
Statutes at Large 917 amended INA 321(a) as originally enacted, to raise from
16, to 18, the age upon which all the conditions of the law had to be fulfilled
in order for citizenship to be acquired.
b. Effective November 6, 1996, CA/PPT, CA/OCS and the
former INS agreed on a more judicious interpretation of INS 321(a). It was
agreed that as long as all the conditions specified in INA 321(a) are satisfied
before the minors 18th birthday, the order in which they occur is irrelevant.
Citizenship would be acquired on the date the last condition is satisfied.
c. Moreover, In re Julio Augusto Fuentes-Martinez, the
U.S. Department of Justice, Executive Office for Immigration Review, Board of
Immigration Appeals (BIA) decided on March 18, 1997, that a child who has
satisfied the statutory conditions of INA 321(a), before the age of 18 has
acquired derivative United States citizenship regardless of the childs age at
the time the amendments to that section of the Act of October 5, 1978 took
effect. BIA concluded that the two provisions of the 1978 Amendments,
amending sections 320 and 321 of the act, are retroactive to the December 24,
1952 enactment of the act, and persons who can establish that they fulfilled
the amended provisions may be documented as United States citizens.
8 FAM 301.9-9(D) Immigration
and Nationality Technical Corrections Act of 1994 (INTCA) -Expeditious
Naturalization April 1, 1995 - February 26, 2001 - INA 322
(CT:CITZ-1; 06-27-2018)
a. The Immigration and Nationality Technical
Corrections Act of 1994 (INTCA) (Public Law 103-416), enacted October 25, 1994,
which became effective April 1, 1995, provided for changes to INA 322, allowing
a U.S. citizen who was unable to meet the transmission requirements of INA 301
as made applicable by INA 309, to apply for the expeditious naturalization of
that child. The 1994 revision provided that certain prerequisites must be
satisfied:
(1) One parent must be a U.S. citizen;
(2) The child is physically present in the United
States pursuant to a lawful admission;
(3) The child is under age 18 and in the legal custody
of the U.S. citizen parent;
(4) If the child has been adopted, the adoption must
have been finalized prior to the age of 16 and the child meets the adoption
requirements of INA 101(a)(1)(E) or INA 101(b)(1)(F);
|
NOTE: This should not be
confused with the Child Citizenship Act of 2000.
|
(5) If the citizen parent has not been physically
present in the United States for a minimum of five years at least two after
reaching the age of 14, the child is residing in the United States as a lawful
permanent resident; and
(6) If the child is not a lawful permanent resident,
he or she has a U.S. citizen grandparent who has been physically present for
the requisite period of time.
b. If the U.S. citizen parent and child (unmarried,
under the age of 18) were living in the United States and the child entered the
United States with a U.S. immigrant visa as a lawful permanent resident, the
parent could apply for expeditious naturalization of the child at the USCIS
District Office with jurisdiction over their place of residence in the United
States using USCIS form N-600, Application for Certificate of Citizenship. A
person who met the requirements of the law can still apply for a Certificate of
Citizenship, even though the law has been repealed.
c. Overseas applications: If the U.S. citizen parent
and the child (unmarried, under the age of 18) were residing abroad, the child
could be eligible for expeditious naturalization if the U.S. citizen parents
parent (the child's U.S. citizen grandparent) was physically present in the
United States for a period totaling 5 years, 2 after the age of 14. The
grandparent could be living or deceased at the time of the application. If
deceased, the grandparent must have been a citizen prior to the child's birth
and at the time of the grandparent's death. The parent should complete and
file USCIS form N-600-K, Application for Certificate of Citizenship Issuance of
Certificate under INA 322 and send the form, supporting documents, and the
required fee to one of the USCIS field offices in the United States. USCIS
will determine whether the child is eligible and approve the application and
forward the parent a letter and naturalization appointment. The parent should
present this to the U.S. embassy or consulate. The U.S. embassy or consulate
will issue the child a B-2 visa. (See 9 FAM
402.2-4(B)(7) This procedure allows
parents to make a "one stop" visit to the United States for the
purposes of naturalizing their child as a U.S. citizen. For the naturalization
benefit to be granted, the application must be filed, adjudicated, and approved
by USCIS, with the oath of allegiance administered before the child's 18th birthday.
d. Evidence of citizenship to be presented for a person
claiming expeditious naturalization under INA 322, as enacted in the
Immigration and Nationality Technical Correction act of 1994 consists of a
certificate of citizenship issued to the applicant.
e. If passport specialists have any questions about
this contact:
(1) Passport agencies and centers should contact
CA/PPT/S/A/AP at AskPPTAdjudication@state.gov; and
(2) Consular officers abroad should contact CA/OCS/L
(Ask-OCS-L@state.gov).
8 FAM 301.9-10 Adopted Children
and Derivative Naturalization PRIOR TO FEBRUARY 27, 2001
(CT:CITZ-10; 10-02-2018)
a. Before October 5, 1978, foreign-born adopted
children had to be naturalized in their own right. They could not claim
citizenship through their adoptive parents naturalization. Applicants in this
category should submit their naturalization certificates or a previously issued
U.S. passport.
b. As of October 5, 1978 (Public Law 95-417),
foreign-born children adopted by aliens who later became naturalized U.S.
citizens automatically became naturalized U.S. citizens themselves provided:
(1) They were adopted before they reached age 16; and
(2) A parent naturalized before the child reached age
18.
c. As of December 29, 1981 (Public Law 97-116),
foreign-born children adopted by aliens who later became naturalized U.S.
citizens automatically became naturalized U.S. citizens themselves provided:
(1) They were adopted before they reached age 18;
(2) A parent naturalized before the child reached age
18; and
(3) The applicant must have been residing in the
United States in the lawful custody of the adoptive parents when the parent(s)
were naturalized.
d. Applicants in categories (b) or (c) must submit:
(1) Certificate of birth (this may be the foreign
birth certificate or, if adopted/re-adopted in the United States, the
state-issued birth certificate) with the seal of the issuing office;
(2) Certified copy of adoption decree, with
translation if appropriate;
(3) Evidence of the adoptive parents identity;
(4) Evidence of the adoptive parents U.S.
citizenship;
(5) Evidence that the child resides with a U.S.
citizen parent; and
(6) Primary Evidence of Permanent Residence Status:
Childs permanent resident alien registration card indicating an acceptable IR
category or foreign passport with U.S. entry stamp reflecting admission as
lawful permanent resident.