In order to determine if a child born outside the US and regularly residing outside the US can become a US citizen, you need to consult the law that was in effect at the time of the birth. These laws have changed a few times as years went by, but they generally require that at least one parent was a US citizen and that he or she has lived in the United States (established residence) for a certain period of time.
Pursuant to INA Section 320, which went into effect on February 27, 2001, if a child meets all the conditions required by the law (including being under the age of 18, being unmarried and in the physical and legal custody of a US citizen parent or guardian), he or she automatically gains US citizenship through the process of acquisition. However, a policy effective as of October 29, 2019, more narrowly restricts the application of that law. Specifically, USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as â€œresiding in the United Statesâ€. Consequently, those children are no longer considered to have acquired citizenship automatically. Instead, the avenue of naturalization is open to such a child, with the U.S. citizen parent of that child applying on the child's behalf under INA 322.
It is important to note that some laws also make provisions regarding the parent's marital status at the time of birth — so if the child was born out of wedlock, he or she may be required to provide evidence that establishes his or her blood relation with the U.S. parent.
Another option exists. The child may be eligible to obtain citizenship through the grandparent. Even if the child's U.S. citizen parent does not meet the physical presence requirement or has died, the child's grandparent or legal guardian can apply for citizenship on the child's behalf, as long as the grandparent or legal guardian meets the physical presence requirement (and, in the case where the US citizen parent has died, applies within 5 years of the parent's death). This provision still applies even if the grandparent in question has died.
The law treats adopted children the same as biological children if they meet certain requirements. Generally, INA Section 320 applies to a child adopted by a U.S. citizen parent if the child was adopted while under the age of 16 and if the child has been in the legal custody of, and has resided with, the adopting parent for at least two years; or who is an orphan on whose behalf an immediate relative petition has been filed while under the age of 16. The adoption must be final for the child to acquire U.S citizenship.
The process begins with the filing of an Application for Citizenship and Issuance of Certificate. USCIS will review this and either approve or deny the application. If approved, USCIS will schedule the child to appear for an interview in the US with his or her parent or grandparent. At that time, they are required to present all the original documents of the copies submitted with the application, as well as any other required documents that will establish his or her eligibility.
The laws regarding citizenship obtained through acquisition are extremely complex, which is why retaining an experienced immigration attorney to represent you in the process is not only smart, but necessary. The attorney can help you navigate the bureaucracy and ensure that you accomplish your objective of becoming a US citizen.
Do you have additional inquiries about the subject? Attorney Emmanuel V. Meimaris provides legal counsel on matters related to immigration, family law, real estate and business. Book a free consultation or call us at (781) 636-3636.