US Citizenship: Automatic Citizenship For Children
18 February 2020Author: NYC Immigration Citizenship Lawyer Alena Shautsova
A person who was brought to the USA as a child may not know that he or she is already a citizen. Often, children do not worry about their immigration status and continue to renew their green cards up until the time they need to travel overseas or there is some sort of legal issue. At times, children born outside the US are considered to be US citizens at birth. Here, we will go over the requirements for automatic citizenship for children.
Children Residing In The United States Who Were Not Born To US Citizens
On Or After February 27, 2001
The US automatic citizenship law has changed several times, the most recent change was brought by the Child Citizenship Act. If the following conditions are met on or after February 27, 2001, a child would be considered a US citizen and may apply either for a US citizen passport or certificate of citizenship or both.
- At least one of the child’s parents (including an adoptive parent) is a citizen by birth or naturalization (a stepchild who was not adopted does not qualify for the automatic citizenship through this provision) Also note that child has to be adopted before the age of 16 to be regarded as a child for US Immigration purposes;
- The child is under 18 years of age;
- The child is a lawful permanent resident (a green card holder or an LPR); and
- The child is residing in the United States in the legal and physical custody of the U.S. citizen parent. (Note, the custody may occur after the parent’s naturalization, but as long as the child was under 18, he/she will still be eligible for the automatic citizenship).
This simple at the first glance rule, may actually become very complicated in the modern world: 1. When a child is born through assisted reproductive technology (ART) and 2. When the USCIS challenges that the child was residing in physical and legal custody of the U.S. parent. For case law related to the custody, requirement read our blog.
Before February 27, 2001
For children who were 18 years of age or older on February 27, 2001, there are different rules. These rules apply for those who are were under 18 from 1952 but were 18 on February 27, 2001.
In general, a child born outside of the United States to two alien parents, or one alien parent and one U.S. citizen parent who subsequently lost U.S. citizenship, acquires citizenship under former INA 321 if:
(1)The child’s parent(s) meet one of the following conditions:
- Both parents naturalize;
- One surviving parent naturalizes if the other parent is deceased;
- One parent naturalizes who has legal custody of the child if there is a legal separation of the parents; or
- The child’s mother naturalizes if the child was born out of wedlock and paternity has not been established by legitimation.
(2)The child is under 18 years of age when his or her parent(s) naturalize; and
(3) The child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.
*Legal custody
Legal custody of the child is often presumed absent separation or divorce. If a child’s parents are separated, then USCIS will engage in factual analysis to determine if a child’s parent had legal custody over the child. 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 will be considered residing in the legal custody of that parent.
A Child Is Born Outside The US Using ART
The US Department of State will consider a child born abroad for automatic citizenship if the child is biologically related to the US citizens parent, and the child’s parent meets the necessary requirements:
- A U.S. citizen father must be the genetic parent of the child and meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth.
- A U.S. citizen mother must be the genetic and/or the gestational and legal mother of the child at the time and place of the child’s birth and must meet all other statutory requirements in order to transmit U.S. citizenship to the child at birth. A gestational mother is a woman who carries and gives birth to the child. However, the gestational mother has to be recognized as the child’s legal mother under the appropriate jurisdiction and the child has to reside in physical and legal custody of the U.S. citizen parent. The laws of the child’s place of birth will be used as “appropriate” jurisdiction to determine if the gestational mother is the child’s legal mother.
Note, if the child was born outside the US to a US citizen parent but this parent actually never resided in the US, such a parent does not automatically transmit US citizenship to a child.
Surrogate Mother and US Citizenship of the Child
Please note that if a surrogate mother is the child’s legal mother under the laws of the place of birth, her consent will be required for obtaining child’s US citizen passport.
If the child is biologically not related to either parent, he/she will not be considered a U.S. citizen at birth, even if legally the U.S. parents will be considered the child’s parents under the local laws.
Children Born Overseas Who Are US Citizens At Birth
A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a person born to a member of a native tribe.
In general, a person born outside of the United States may acquire citizenship at birth if:
- At least one parents is a US 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 in accordance with the relevant provision.
Here, also there are complications depending on various factors such as f the parents were married at the time of the child’s birth, the local laws of the child’s birthplace, and, of course, the applicable U.S. laws.
A. Parents were married at the time of child’s birth
| Parents Immigration status | Residency Requirement | Time Abroad Counts towards residency in the US | Date of Child’s birth | Child’s status |
|---|---|---|---|---|
| Both Parents are US citizens | At least one parent had resided in the United States or one of its outlying possessions | NO | The child is a USC | |
| One Parents is a US citizen, another one is a US national | The U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least one year | NO | The child is a US citizen | |
| Only one parent is a US citizen | The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age. |
|
The child is a US citizen | |
| Only a Mother is a US citizen at the time of the child’s birth | Child’s USC mother resided in the US prior to the child’s birth | The child was born prior to noon May 24, 1934 | The child is a USC |
Child Was Born When Parents Were NOT MARRIED
| Parents Immigration status | Residency Requirement | Special Conditions | Date of Child’s Birth | Child’s status |
|---|---|---|---|---|
| Mother is a US Citizen | The child’s U.S. citizen mother was physically present in the United States or one of its outlying possessions for 1 continuous year prior to the child’s birth | NO | Child Born On or After December 23, 1952, and Before June 12, 2017 | The child is a USC |
| Mother is a US citizen | The child’s U.S. citizen mother was physically present in the United States 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). | NO | Child born on or after June 12, 2017 | The child is a US citizen |
| Father is a US citizen | See INA 301, similar to mother |
|
The child is a US citizen |
Written Agreement to Support a child may be executed at any time for the child’s 18th birthday, even at the time of the application for a child’s certificate of citizenship. However, if the child is over 18, the child will have to provide proof that the father accepted his obligation to support the child voluntarily. The agreement is not required if the father died before the child’s 18th birthday.
Interestingly, that if a baby or a child under 5 years old is found in the United States, and his/her parents are unknown, until 21 years old will be considered a citizen of the US at birth.
According to the new law P.L. 116-133 passed by the Congress and signed by President Trump, a foreign-born child of a U.S. citizen member of the armed forces or a government employee may automatically acquire U.S. citizenship even if the child is not residing in the United States. The child has to be under 18, with at least one parent to be a US citizen. Under this bill, the requirement of physical residence in the US is fulfilled if a foreign-born child is (1) living in the legal and physical custody of the citizen Armed Services member or government employee who has been stationed abroad (or the accompanying spouse of such a citizen), and (2) lawfully admitted for permanent residence in the United States. Child’s physical presence in the United States is no longer necessary.
If you need a consultation regarding a child’s rights to the US citizenship, please call us at 917-885-2261.