A child who is:
- born to a U.S. citizen who did not live in (or come to) the United States for a period of time prior to the child’s birth, or
- born to one U.S. citizen parent and one alien parent or two alien parents who naturalize after the child’s birth, or
- who is adopted and is permanently residing in the United States
can become a U.S. citizen by action of law on the date on which all of the following requirements have been met:
- The child was still under 18 years of age; and the child was not married; and
- The child was the parent’s legitimate child or was legitimated by the parent before the child’s 16th birthday (Stepchildren or children born out of wedlock who were not legitimated before their 16th birthday do not derive United States citizenship through their parents.); and
- If adopted, the child met the requirements of section 101(b)(1)(E) or (F) and has had a full and final adoption; and
- The child was residing in the United States in the legal custody of the U.S. citizen parent (this includes joint custody); and
- The child was residing in the United States in the physical custody of the U.S. citizen parent.
If you and your child meet all of these requirements, you may obtain a U.S. passport for the child as evidence of citizenship. If the child needs further evidence of citizenship, an “Application for Certificate of Citizenship” may be sumbitted to USCIS to obtain a Certificate of Citizenship. (Note: a child who meets these requirements before his or her 18th birthday may obtain a passport of Certificate of Citizenship at any time, even after he or she turns 18). A child who is regularly residing IN the United States can become a citizen of the United States only by meeting the requirements listed above. If a child regularly resides IN the United States and is not a lawful permanent resident, he or she cannot acquire citizenship automatically until he or she is granted lawful permanent residence. If a child who has been lawfully admitted for permanent residence fails to qualify for citizenship under the provisions of law, he or she may apply for naturalization after reaching 18 years of age by filing an N-400, provided that he or she has the required 5 years of lawful permanent residence.
U.S. citizens with children by birth or adoption who do NOT regularly reside in the United States, may apply for citizenship for such a child if all of the following conditions are met:
- The child is under 18 years of age; and
- The child is not married; and
- The child regularly resides outside the United States; and
- The child is temporarily present in the United States pursuant to a lawful admission and is maintaining such lawful status; and
- The child is in legal and physical custody of a parent who is a U.S. citizen; and
- The child is the U.S. citizen’s legitimate child, or was legitimated before the child’s 16th birthday (stepchildren or children born out of wedlock who were not legitimated before their 16th birthday are not eligible for this procedure); and
- If adopted, the child meets the requirements of section 101(b)(1)(E) or (F) and had a full and final adoption; and either of the following is true:
- The citizen parent has lived at least 5 years in the United States, and at least 2 of which were after the citizen parent’s 14th birthday; or
- If the child’s citizen parent has not lived in the United States for at least 5 years, 2 of which were after that parent’s 14th birthday, the citizen parent currently has a parent(the child’s grandparent) who:
- is also a U.S. citizen, and
- lived in the United States for 5 years, at least 2 of which were after the citizen grandparent’s 14th birthday; and
- is still living at the time of the adjudication of the application and the taking of the Oath.
If the foregoing conditions are met, the citizen parent can apply for citizenship and a certificate of citizenship in behalf of the child using an “Application for Citizenship and Issuance of a Certificate under Section 322.” Both the citizen parent and the child must appear at an interview with an USCIS officer in the United States. The child must meet ALL of the required conditions at the time when he or she takes the Oath of Allegiance (Note: the Oath may be waived if the child is too young to understand it).
If the child meets the requirements of Section 322 of the Immigration and Nationality Act as a child residing outside the United States, one may submit an “Application for Citizenship and Issuance of Certificate under Section 322.”
*NOTE – Children who immigrated under the “IR-3” or “IR-4” categories must have had an immigrant petition filed on their behalf before their 16th birthday. All adoptions for any other type of immigration benefit, including naturalization, must be completed by the child’s 16th birthday, with one exception: A child adopted while under the age of 18 years by the same parents who adopted a natural sibling who met the usual requirements.
**NOTE – The “one U.S. citizen parent” rule applies only to children who first fulfilled the requirements for automatic citizenship (other than at birth abroad) on or after February 27, 2001. In order to qualify for automatic citizenship (other than at birth abroad) on or before February 26, 2001, all of the child’s parents must have been United States citizens either at birth or through naturalization- both parents if the child had two parents; the surviving parent if a parent had died; the parent with legal custody if the parents were divorced or legally separated; or the mother only, if the child had been born out of wedlock and the child’s paternity had not been established by legitimation.
If you would like to know more about eligibility for citizenship and about the process, please contact one of our attorneys for assistance.