Immigration
Immigration Update: Children and U.S. Citizenship
By Dilip Patel
We start our article by congratulating Nitish and Shephali Rele for celebrating 20 years of Khaas Baat. This is a particularly significant achievement in this digital age when we hear of newspapers folding on a regular basis. Congratulations for overcoming the daily struggle of managing rising expenses with harder to earn advertising revenue.
This month, we will focus on U.S. citizenship and children. As will be seen, some rules are easy, and others are complex and there is no substitute for obtaining expert advice from a qualified experienced attorney. The following is intended as a simple starting point.
Start with the easy ones first. Anyone born in the U.S. is automatically a U.S. citizen – the only exception being children of diplomats who are considered not to be subject to U.S. citizenship.
Children can also become U.S. citizens after birth if residing in the U.S. with Green Card status if their parents naturalize as U.S. citizens while the child is under age 18. The requirements are:
- The person is a child of a parent who is a U.S. citizen by birth or through naturalization (including an adoptive parent);
- The child is under 18 years of age;
- The child is a lawful permanent resident (LPR); and,
- The child is residing in the United States in the legal and physical custody of the U.S. citizen parent.
Birth Abroad to US Citizens
The situation is more complex when dealing with children who are born abroad to U.S. citizens. Part of the complexity arises from the fact that we have to apply the law, which was in effect at the time the child was born. We have had situations where upon investigating family history clients are surprised to learn that they had acquired U.S. citizenship at birth through a grandparent even though the child and their parents were also born abroad and did not have citizenship.
Here is one example of requirements for automatic citizenship for a child born abroad “in Wedlock” (parents were married to each other) after Nov. 14, 1986:
- Both parents were U.S. citizens, then one parent must have resided in the United States or outlying possession (OLP) before the birth of the child (no specific time period is required);
- Only one parent was a U.S. citizen, then the U.S. citizen parent must have been physically present in the United States or OLP for 5 years before the birth of the child, at least 2 years of which were after age 14.
Definition of Child: For purposes of citizenship, a child is defined as:
- The genetic child of a U.S. citizen mother;
- The adopted (including an orphan or Hague Convention adoptee) child of a U.S. citizen mother or father);
- The genetic, legitimated child of a U.S. citizen father;
- The child of a non-genetic gestational U.S. citizen mother (person who carried and gave birth to the child) who is recognized as the child’s legal parent; or
- The child of a U.S. citizen mother or father who is married to the child’s genetic or gestational parent at the time of the child’s birth (even if no genetic or gestational relationship exists with the U.S. citizen mother) if both parents are recognized as the child’s legal parents.
Definition of Born in Wedlock
USCIS considers a child to be born in wedlock when the legal parents are married to one another question at the time of the child’s birth and at least one of the legal parents has a genetic or gestational relationship to the child.
Child Born abroad Out of Wedlock to U.S. Citizen Mother. Here, citizenship at birth depends on birth date and whether physical presence of mother in U.S.
For the child born on or after Dec. 24, 1952, and before June 12, 2017, the child is a U.S. citizen if the mother was physically present in the United States or OLP for a continuous period of 1 year, without any breaks, before the child’s birth. But for a child born on or after June 12, 2017, the mother had to be physically present in the United States or OLP for at least five years before the child’s birth, two of which were after the mother reached the age of 14.
Child Was Born Out of Wedlock to U.S. Citizen Father. Here, if the child was born on or after Nov. 14, 1986, the following requirements must have been met.
- The child was legitimated or acknowledged before age 18 (legitimated under the laws of the child’s residence or domicile; or paternity acknowledged in writing under oath; or paternity established by court order);
- Blood relationship between the child and the U.S. citizen father was established;
- The U.S. citizen father, unless deceased, has agreed in writing to financially support the child until the age of 18; and
- The U.S. citizen father was physically present in the United States or OLP for at least 5 years, 2 of which were after the father reached the age of 14, before the child’s birth.
As can be seen, there are numerous factors that have to be taken into account and expert experienced guidance is essential.
Here is to another 20 years!Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email [email protected]