If you are a U.S. citizen or immigrant parent, figuring out how to help your non-citizen child gain citizenship can be confusing. The U.S. immigration laws have not been particularly kind, mainly because the basic requirements for seeking citizenship for children have changed so frequently during the past 50 years. Fortunately, things are not as complicated as they might look.
The immigration laws provide for three main mechanisms that a U.S. citizen or immigrant parent can use to seek citizenship for their child: Acquisition of Citizenship, Derivation of Citizenship, or Application for Citizenship under Section 322. Let’s take a look at each process and see which mechanism might be right for you and your child.
Acquisition of Citizenship at Birth
If you or your spouse or both are United States citizens and your biological child was born abroad, your child may automatically “acquire” U.S. citizenship and will not need to apply for citizenship. Unfortunately, this law does not apply to adopted children.
The law requires that the U.S. citizen parent or parents have been physically present or resided in the U.S. for certain amounts of time prior to the birth of the child in order for U.S. citizenship to automatically “transmit” to the child. The amount of time of physical presence or residence varies depending on when the child was born, due to changes in the law over the years. For purposes of this article, we’re assuming that your child was born recently, within the last 18 years, or will be born soon (congratulations!).
Just be aware that if your child was born prior to November 14, 1986, different requirements will apply, because the law in place before that date was different. Speak with an immigration attorney if you are in this situation.
The law also requires different periods of physical presence or residence depending on the immigration status of the parents. If both parents are U.S. citizens prior to the birth, the parents must simply show that one of them had resided in the U.S. or one of the U.S.’s territories at some point. But if only one parent is a U.S. citizen and the other is a U.S. national, the U.S. citizen parent must show physical presence in the U.S. or a U.S. territory for at least one year. If the non-citizen parent is an alien or foreign national, the U.S. citizen parent will have to show physical presence for at least five years, two of which were after the U.S. citizen parent turned 14 years of age.
To confuse matters further, U.S. immigration law also makes distinctions for children born out of wedlock, or “illegitimate” children in older parlance. Again, for the purposes of this article, we’re assuming your child was born relatively recently or will be born soon; consider speaking with an immigration attorney if your situation is different.
If a child was born out of wedlock after December 24, 1952, and the mother was a U.S. citizen, the mother must show at least one year of physical presence in the U.S. or a U.S. territory. If the only U.S. citizen parent of a child born out of wedlock was the father, however, the law is much harsher. To prove that the child acquired citizenship, the father must show, by clear and convincing evidence, that the father and the child have a blood relationship, that the father was a U.S. citizen at the time of the child’s birth, that he will provide financial support for the child until he or she turns 18 years old, and that the father/child relationship will be legitimated or legally recognized. The father will still have to demonstrate some period of physical residence or presence in the U.S. or its territories.
The citizenship acquisition laws can be complex. Contact an immigration attorney who can help you and your child navigate these difficult requirements.
Citizenship by Derivation
If you are an immigrant who is eligible to seek naturalization and your child was born outside the United States, your child may be able to “derive” naturalization through your own application to naturalize. Even better, derivation works for children who have been adopted (including stepchildren whom you have adopted lawfully), so long as you and your adopted child meet certain requirements.
Like with acquisition of citizenship, the laws have different requirements depending on when your child was born. In 2000, Congress passed the Child Citizenship Act, which removed some barriers in the legal requirements for deriving citizenship. The law says that for children who turned 18 years old on or after February 27, 2001, to derive citizenship through their parents, four requirements must be met:
- One parent of the child is a U.S. citizen, by either birth or naturalization.
- The child is under the age of 18 (at the time one or both parents become U.S. citizens) and is not married.
- The child is residing in the U.S. after being lawfully admitted as a permanent resident; and
- The child is residing in the U.S. in the physical and legal custody of the U.S. citizen parent.
For purposes of this article, we’re assuming that your child was born recently or will soon be born. If your child turned 18 years old before February 27, 2001, the requirements for derivation are more complex. Also, in situations of adoption, the child must be legally adopted prior to these requirements being fulfilled. Stepchildren will not qualify unless they have been adopted by the naturalizing parent! If your child turned 18 before 2001, or if your child is adopted or a stepchild, you should speak with an immigration attorney who can help you navigate the different requirements. You may also want to speak with a family law attorney who can help you confirm that the adoption is lawful.
Derivation of citizenship means that, if your child meets all of the requirements, he or she is a U.S. citizen as a matter of law. He or she will not need to “apply” for citizenship. However, your child can apply for a Certificate of Citizenship as documentation of his or her citizenship. To apply for this certificate, you and your child must complete and submit Form N-600 to U.S. Citizenship and Immigration Services. You will also need to provide evidence that your child meets all of the requirements discussed earlier. Consult with an immigration attorney if you have questions on submitting an N-600 application.
Citizenship by Application
In some situations, your child might be lawfully in the United States, but not as a lawful permanent resident. This usually means that your child did not automatically acquire citizenship when he or she was born. This also means that your child is not eligible to derive citizenship if you naturalize. Fortunately, you can still apply for citizenship for your child in this situation if you seek naturalization and fulfill some requirements.
Under Section 322 of the Immigration and Naturalization Act, the body of laws governing U.S. immigration, a naturalizing parent can seek a Certificate of Citizenship for their child if he or she meets the following requirements:
- One parent is a U.S. citizen, usually by naturalization.
- The child is legally present in the United States.
- The child is under 18 years of age.
- The child is in the legal and physical custody of the U.S. citizen parent; and
- That U.S. citizen parent has been physically present in the U.S. for five years, two of which were after the parent turned 14 years of age.
Note that the last requirement does not mean that the parent have been a citizen for five years, but that he or she must show overall physical presence meeting the requirement. For adopted children, the child must have been adopted prior to turning 16 years old in addition to meeting all of the other requirements in order to seek a Certificate of Citizenship this way. Parents serving in the U.S. Armed Forces abroad may be able to waive the physical presence requirements. If you have one of these complex situations, contact an immigration attorney who can help you and your child determine your eligibility.
Parents whose children qualify for a Certificate of Citizenship under Section 322 must use Form N-600K to apply. You will have to submit a completed Form N-600K along with strong evidence showing that you and your child meet the requirements discussed above. If you have questions on putting together an N-600K application for your child, speak with an immigration attorney who can guide you through the process.