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Birth Abroad --Citizenship through a U.S. Citizen parent

Children of U.S. citizen parent(s) born outside of the U.S. can acquire citizenship either at birth under INA §301 & §309 or prior to reaching age 18 under INA §320 and §322.  We are here to help you!

claiming citizenship through A U.S. citizen parent

Clarity About Which Law Governs

Clarity About Which Law Governs

Clarity About Which Law Governs

Whether a person acquired citizenship at birth is determined by reference to the applicable statutory provisions and conditions that existed at the time of the person’s birth. Statutory provisions have been modified extensively over the years.    


KLF will provide you clarity to understand which statute and which revision of that statute applies in order to qualify your claim to citizenship.  


NOTE:  The qualifications on this page provide only the current law only so please speak with the attorney at KLF regarding your individual case.  

5 Starting Principles

Clarity About Which Law Governs

Clarity About Which Law Governs

  • The law governing a person born abroad to a U.S. citizen parent(s) who wishes to acquire citizenship is the law that was in effect on the date of the claimant's birth, unless a subsequent law expressly provides for retroactive application to a person who had not already become a citizen by the provisions of the prior law. 
  • The law that  governs a person acquiring citizenship through naturalization of his or her parent(s) is determined by the date the parent(s) naturalized.   
  • When pertinent law requires specific conditions on the part of the U.S. citizen parent(s), the conditions must be met prior to the child's birth unless otherwise stated in the statute. 
  • Residence or physical presence transmission requirements can be met while the transmitting parent is not a citizen or even if parent was previously in the U.S. while undocumented. 
  • Residence or physical presence of parent must take place before the child's birth. 

KLF Can Get Results!

Clarity About Which Law Governs

KLF Can Get Results!

KLF has extensive experience with naturalization and citizenship issues.  KLF gives you a veritable expert on what you need to obtain your goals.  Using counsel will set you on the correct path and with the right supporting documentation.   Citizenship laws can get confusing so having an expert immigration attorney with you should you run into a misguided officer will really help. 

The time to hire an attorney is before you apply. 


KLF can streamline the process, file your application properly and completely, prepare you for the interview, and attend it with you. 

PAGE CONTENT - acquiring citizenship - broad overview

Automatic Citizenship Acquired Through Naturalization of Parent(s)
INA 320 - Automatic Citizenship for Child Born Abroad & Admitted as Lawful Permanent Resident
INA 320 - Child with Parents in Military or Civil Service
INA 322 - Expedited Naturalization - Child Born & Residing Abroad
INA 322 - Expedited Naturalization - Child with Parents in Military or Civil Service
Child Born Abroad in Wedlock to One or Two U.S. Citizen Parents
Child Born Abroad Out of Wedlock to One or Two U.S. Citizen Parents

documentation of citizenship status

Obtaining Evidence of U.S. Citizenship

 While 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); it is most advisable to apply  for documentation of such status.  You may also apply for a U.S. passport with the Department of State to serve as evidence of U.S. citizenship.
A person who is at least 18 years of age may submit the N-600 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. 

automatic citizenship Through Naturalization of Parents

Automatic Acquisition of Citizenship Through Naturalization of Parents

  • The applicable law is determined by the date the parents naturalized and whether one or both parents naturalized.
  • The Child Citizenship Act of 2000 is applicable to children under age 18
  • The date of the parent(s)'s naturalization and the date of the child's lawful admittance must occur before age 18 or 21 depending on the former. 
  • The date of automatic acquisition depends on whether the child is residing in the U.S. or abroad. 
  • Effective 2/27/2001
  • Not retroactive

Child Born Abroad & Admitted as Lawful ResidenT

Automatic Acquisition for Child Born Abroad & Admitted as Lawful Resident (INA 320)

  • The Child Citizenship Act of 2000 is applicable to children under age 18
  • At least one parent is a U.S. citizen by birth or naturalization.  
  • The child must reside in the U.S. in the legal & physical custody of a citizen parent pursuant to lawful admission for permanent residence.
  • Effective 2/27/2001
  • Not retroactive

Children of parents in Military or Civil Service

New Law for Children of Military Members & U.S. Gov't Employees Stationed Overseas (INA 320)

  On March 26, 2020, the Citizenship for Children of Military Members and Civil Servants Act (CCMMCSA) was enacted into law.  


As of March 26, 2020, U.S. citizen parents who are military or U.S. government employees or spouses of military or U.S. government employees, and are stationed outside the United States, can apply for a Certificate of Citizenship for children residing outside the United States.  A child born abroad  even though residing outside the U.S. acquires automatic citizenship under INA  § 320 in cases where the child is a lawful permanent resident (LPR) and is in the legal and physical custody of his or her U.S. citizen parent who is:

  • Stationed and residing outside of the United States as a member of the U.S. armed forces;  
  • Stationed and residing outside of the United States as an employee of the U.S. government; or
  • The spouse residing outside the United States in marital union with a U.S. armed forces member or U.S. government employee who is stationed outside of the United States.


No longer must their children, if eligible under the new INA 320(c), reside in the United States.  The U.S. residency requirement is exempted for such children.  Except for this residency requirement, all generally applicable requirements   under INA 320(a) and (b) for automatic acquisition of citizenship apply.  In cases involving members of the U.S. armed forces, the child and the U.S. citizen parent (if the U.S. citizen parent is the spouse of the armed forces member) must be authorized to accompany and reside abroad with the armed forces member pursuant to the member's official orders. 

  • If the spouse of the U.S. armed forces member is the qualifying U.S. citizen parent, the spouse must be authorized to accompany and reside with the U.S. armed forces member as provided by the member’s official orders.
  • The official orders that authorize a child and, if applicable, his or her U.S. citizen parent, to accompany and reside with the member of the U.S. armed forces outside of the United States are a statutory requirement for that child to acquire citizenship under INA § 320.
  • If the child (and, if applicable, U.S. citizen parent) being added to the orders is the last action for the child to qualify for acquisition, then the date of the order becomes the date of acquisition. 
  • There is no statutory requirement for children of U.S. government employees or their spouses to be included on the employee’s official orders. 


Upon meeting the requirements and traveling to the United States to complete the process, the child will obtain a Certificate of Citizenship.  This change applies to eligible children who were under the age of 18 on March 26, 2020.    All statutory requirements must be met before the child reaches the age of 18, including, if applicable, the issuance of the official orders for the child (and, if applicable, the U.S. citizen parent) to accompany and reside with the U.S. armed forces member who is stationed outside the United States.  

Expedited Naturalization BORN & Residing Abroad

INA 322: Expedited Naturalization of Children Born & Residing Outside the United States

INA 322: Expedited Naturalization of Children Born & Residing Outside the United States

INA 322: Expedited Naturalization of Children Born & Residing Outside the United States

 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. 

  • The Child Citizenship Act of 2000 is applicable to children under age 18

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);
  • The child’s U.S. citizen parent or citizen grandparent meets certain physical presence requirements in the United States or an outlying possession;
  • 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, temporarily physically present in the U.S. pursuant to lawful admission & maintaining  lawful status 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.

There are certain exceptions to these requirements for children of U.S. citizens in the U.S. armed forces accompanying their parent outside the United States on official orders.
 Who Can Apply on the Child’s Behalf

  • Typically, a child’s U.S. citizen parent files on the child’s behalf.
  • If the U.S. citizen parent has died, a U.S. citizen grandparent or U.S. citizen legal guardian may file on the child’s behalf within 5 years of the parent's death.

 

INA 322: Physical Presence of Parent & Grandparent & Temporary

INA 322: Expedited Naturalization of Children Born & Residing Outside the United States

INA 322: Expedited Naturalization of Children Born & Residing Outside the United States

 

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 5 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.
  •  Exception for U.S. Armed Forces members:  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.
  •  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:
  • 1.  The U.S. citizen grandparent has been physically present in the United States or its outlying possessions for at least 5 years; and
  • b.  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.


Temporary Presence by Lawful Admission & Status in U.S. 

In most cases, the citizenship process for a child residing abroad cannot take place solely overseas.  The child must: 

  • Be lawfully admitted to United States, in any status
  • Be physically present in the United States;
  • Maintain the lawful status that he or she was admitted under while in the United States, and 
  • Take the Oath of Allegiance in the United States unless the oath requirement is waived.
  • Exception for Child of 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.

Expedited Natz - parents in MILITARY OR CIVIL SERVICE

INA 322: Expedited Naturalization: Born & Residing Abroad; Parents in Military or Civil Service

 Note that Section of 322 works in addition to INA 320.

  • In addition to certain provisions for children of U.S. armed forces members and U.S. government employees stationed or employed outside the United States under INA 320, such U.S. citizen parents may apply for U.S. citizenship under INA 322 on behalf of their children under age 18 (if the children have not acquired citizenship under INA 320).   
  • Children of members of the U.S. armed forces who are accompanying their parents outside of the United States on official orders may be eligible to complete all aspects of the naturalization proceedings outside the United States. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.

 

Children Born IN WEDLOCK OUTSIDE the united states

If Born in Wedlock & a Child of Two U.S. Citizen Parents

If Born in Wedlock & a Child of a U.S. Citizen Parent & Foreign National Parent

If Born in Wedlock & a Child of a U.S. Citizen Parent & Foreign National Parent

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 resided in the U.S. or an outlying possession.

If Born in Wedlock & a Child of a U.S. Citizen Parent & Foreign National Parent

If Born in Wedlock & a Child of a U.S. Citizen Parent & Foreign National Parent

If Born in Wedlock & a Child of a U.S. Citizen Parent & Foreign National Parent

Acquires citizenship at birth if at the time of birth:

  • One parent is an foreign national and the other parent is a U.S. citizen; and
  • The U.S. citizen parent was *physically present in the U.S. for at least 5 years, including at least 2 years after 14 years of age.


*Time abroad counts as physical presence in the U.S. 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.

CHILDREN BORN OUT of WEDLOCK OUTSIDE THE UNITED STATES

How Paternity is Established Depends on Which Version of INA 309(a) Applies

If Born Out of Wedlock & Claiming Through a U.S. Citizen Father & Foreign National Mother

If Born Out of Wedlock & Claiming Through a U.S. Citizen Father & Foreign National Mother

Again, date of birth governs which version of 309(a) applies. 

If Born Out of Wedlock & Claiming Through a U.S. Citizen Father & Foreign National Mother

If Born Out of Wedlock & Claiming Through a U.S. Citizen Father & Foreign National Mother

If Born Out of Wedlock & Claiming Through a U.S. Citizen Father & Foreign National Mother

Children born out of wedlock claiming citizenship through a U.S. citizen father follow the general requirements as do children born in wedlock.  This applies 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 (may be dated at any time before the child’s 18th birthday); 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 under INA §301 continue to apply to children born out of wedlock who claim citizenship through their fathers.

Some examples of financial support documents that the USCIS may consider include: 

  • A previously submitted Affidavit of Support (Form I-134 or 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; 
  • 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. 

If Born Out of Wedlock & Claiming Through a U.S. Citizen Mother

If Born Out of Wedlock & Claiming Through Two U.S. Citizen Parents

If Born Out of Wedlock & Claiming Through Two U.S. Citizen Parents

  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, 2017A 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 U.S. or one of its outlying possessions for 1 continuous year prior to the child’s birth. 

Child Born On or After June 12, 2017A 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 U.S. 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). 

Effect of Sessions v. Morales-Santana Decision -- The Equal Protection Act requires the same physical presence requirements for the mother as exists for the father. Prior to the U.S. Supreme Court’s decision in Sessions v. Morales-Santana, 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 U.S. for 1 continuous year prior to the child's birth. 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 U.S. or one of its outlying possessions. 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. The U.S. Supreme Court indicated that the 5 years of physical presence (at least 2 years of which were after age 14) 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. 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.  After Sessions v. Morales-Santana, the 1-year continuous physical presence requirement remains in effect only for those children born prior to June 12, 2017 outside of the United States to unwed U.S. citizen mothers.  

If Born Out of Wedlock & Claiming Through Two U.S. Citizen Parents

If Born Out of Wedlock & Claiming Through Two U.S. Citizen Parents

If Born Out of Wedlock & Claiming Through Two U.S. Citizen Parents

A child born before 6/12/2017 acquires at birth if the U.S. citizen father first meets INA 309(a).  By the terms of 309(a), INA 301 then applies allowing either parent to establish that he or she has had a residence in the U>S. prior to the child's birth. 


If the father did not satisfy INA 309(a), the child may acquire through the mother under appropriate 309 and 301 provisions.


A child born on or after 6/12/2017whose father does not satisfy INA 309(a) will benefit from legal counsel.  Adjudicators are instructed to get guidance when they encounter a  child whose father did not satisfy INA 309(a) but whose mother or father or whose mother resided in the U.S. at any time prior to the child's birth. 




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