Posthumous Children
(CT:CITZ-127; 04-03-2025)
(Office of Origin: CA/PPT/S/A)
8 FAM 304.4-1 CHILDREN BORN abroad AFTER THE DEATH OF A U.S. CITIZEN PARENT
(CT:CITZ-127; 04-03-2025)
a. Section 101(f) of the Nationality Act and INA 101(c)(2) (Immigration and Nationality Act) (8 U.S.C. 1101(c)(2)) indicate that, for purposes of acquiring U.S. nationality, “parent” includes a deceased parent in the case of a posthumous child. The INA also includes a deceased mother or father within its definition of “mother” or “father.”
b. Posthumous children acquire at birth the same rights to citizenship or non-citizen nationality to which they would have been entitled had the deceased U.S. citizen/non-citizen U.S. national parent been alive at the time of their birth.
c. If the deceased parent of a child born posthumously in a foreign country was a U.S. citizen but the child did not acquire U.S. citizenship at birth under INA 301 (8 U.S.C. 1401), the child may be able to obtain U.S. citizenship automatically upon the surviving parent’s naturalization and the child’s satisfaction of the conditions stated in INA 320 (8 U.S.C. 1431) or the “grandparent” provisions of the Child Citizenship Act of 2000 (INA 322)(8 U.S.C. 1433). Section 313 NA contained similar provisions.
d. On occasion, DNA testing has been used to establish the genetic/blood relationship between the applicant and a deceased parent through testing of remains of the parent, or testing of a relative (see 8 FAM 304.2-2). INA 309 (8 U.S.C. 1409) includes an exception to the requirement that the father of a child born out of wedlock provide written agreement to provide financial support until the child reaches age 18 in instances where the father dies before the child turns 18.
e. A child born abroad to two aliens, one of whom died before the child’s birth, can acquire U.S. citizenship automatically upon the naturalization of the surviving parent and the timely satisfaction of other conditions imposed by U.S. law. The current INA 320 (8 U.S.C. 1431) and, in certain instances, former INA 321 (8 U.S.C. 1432) (that is, cases that occurred when that legal provision was in effect between October 24, 1988 and October 30, 2000) would be applicable (see 8 FAM 301.10-5).