AUTOMATIC CITIZENSHIP FOR CHILDREN OF US CITIZENS
Author: US Citizenship Attorney Alena Shautsova
U.S. Immigration law allows children of the U.S. citizens to automatically receive U.S. citizenship in certain situation. It is a well-known fact that a child who is born in the US or its territory is a U.S. citizen regardless of citizenship or immigration status of child’s parents. The rules differ, however, in case of the child who is born outside of the US, or when a child’s parent becomes a US citizen prior to the child’s 18th birthday. The USCIS website provides a synopsis of basic qualifications.
For example: A child born outside of the United States automatically becomes a U.S. citizen when all of the following conditions have been met on or after February 27, 2001:
•The child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or through naturalization;
•The child is under 18 years of age;
•The child is an LPR; and
•The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.
A child born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother may acquire U.S. citizenship under INA 320 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 320, including that the child is residing in the United States in the legal and physical custody of the U.S. citizen parent.
It is important to note that a stepchild who has not been adopted does not qualify for citizenship under this provision. Let’s say Juan marries Mary. Juan has a 5 years old LPR child, and Mary is getting her citizenship a year after the marriage. Mary has not adopted Juan’s child. Mary has a child of her own, Stella. Stella is 17 years old and is an LPR. In this case, Stella will be able to qualify for automatic citizenship, but not Juan’s’ child.
Let’s say that Juan’s child was born in Mexico and Juan is not now and had never been married to the child’s mother. It is 2014. The child is 15 years old and Juan has applied and received his citizenship. Is the child a US citizen as well?
The Immigration and Nationality Act provides for the following definition of the word “child”:
(1) The term “child” means an unmarried person under twenty-one years of age who is-
(A) a child born in wedlock;
(B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;
(C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;
So, if look at the point (c)
In a recent BIA decision, the Board concluded that a child born abroad to unmarried parents can be a “child” for purposes of INA section 320(a) if he or she is otherwise eligible and was born in a country or State that had eliminated legal distinctions between children based on the marital status of their parents or had a residence or domicile in such a country or State (including a State within the United States). This ruling is important because there are still countries that did not eliminate the distinguish between children born from parents who are married, and those who are not married.
Let’s say that Juan is from the country where the law says that he can ligitimate the child only by marrying the child’s mother, and Juan is still in that country residing with his son. Then, the answer would be NO. The child is not a U.S. citizen. What if the son moves to the U.S.? Then, yes, the child will be able to become a U.S. citizen (provided the State law does not make a distinction between the children born in marriage and outside of the marriage).
Interestingly, in the past century, the laws have been changing, and in certain situation, a person may be a U.S. citizen when his/her grandparents passed on the citizenship to the person’s parents.
That is why it is advisable that a person consults with an attorney to see if he/she can qualify for citizenship.