8 FAM 301.9
Acquisition of U.S. Citizenship by Parent(s)' Naturalization Prior to the Child Citizenship Act of 2000
(CT:CITZ-112; 09-06-2024)
(Office of Origin: CA/PPT/S/A)
8 FAM 301.9-1 Introduction
(CT:CITZ-57; 06-07-2021)
a. This subchapter discusses evidence of naturalization under various circumstances, including:
(1) Automatic inclusion of minors in the naturalization of both parents;
(2) Automatic inclusion of minors in the naturalization of one parent;
(3) Expeditious naturalization of minors as originally enacted; and
(4) Expeditious naturalization of minors born to U.S. citizens abroad as amended by the Immigration and Nationality Technical Corrections Act of 1994 (INTCA) effective April 1, 1995.
b. Expeditious naturalization of foreign national minors (both adopted and biological children of U.S. citizen(s)) under the Child Citizenship Act of 2000 is addressed in 8 FAM 301.10.
c. This subchapter applies to individuals who were born prior to February 27, 1983, who are claiming citizenship through the naturalization of their parent(s).
8 FAM 301.9-2 Derivative Naturalization of Children Born Abroad Through Parent(s)’ Naturalization
(CT:CITZ-57; 06-07-2021)
a. If the parent(s) naturalized after the birth of the child, you must apply the relevant acquisition statute in place described in this subchapter. If the parent(s) naturalized before the child's birth, see 8 FAM 301.7 for guidance.
b. The child must meet all statutory requirements before the child reaches the age specified in the applicable statute.
c. In addition, all U.S. laws regarding automatic acquisition of derivative citizenship through naturalization of a parent require that the child be lawfully admitted to the United States for permanent residence.
8 FAM 301.9-3 Naturalization Prior to May 24, 1934
(CT:CITZ-57; 06-07-2021)
a. Prior to the passage of the act of March 2, 1907, minors acquired citizenship of the United States under Section 2172 of the Revised Statutes through the naturalization of their parents. That section of law provided citizenship for children of parents duly naturalized, if dwelling in the United States, and if they were under 21 at the time their parent(s) naturalized:
(1) Section 2172 of the Revised Statutes states:
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"The children of persons who have been duly naturalized under any law of the United States . . . being under the age of twenty-one years at the time of the naturalization of their parents, shall, if dwelling in the United States, be considered as citizens thereof." |
(2) The Act of March 2, 1907 states:
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"That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, that such naturalization or resumption takes place during the minority of such child: And provided further, that the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States." |
b. A person claiming derivative naturalization as a result of a parent(s)’ naturalization pursuant to Section 2172 of the Revised Statutes must submit the following evidence in support of the claim:
(1) Proof of the parent(s) naturalization (see 8 FAM 303.1-1);
(2) Evidence that the child was under the age of 21 at the time the parent(s) were naturalized (see 8 FAM 303.4-2);
(3) Evidence that the child began to reside permanently in the United States while under the age of 21;
(4) Evidence that the child was lawfully admitted to the United States for permanent residence such as an arrival manifest; and
(5) In the case of divorce of the parents, if the child sought to acquire U.S. citizenship through the mother while the father was still living and was not a U.S. citizen or non-citizen U.S. national the mother was required to show proof of separation as well as her legal custody of the child in the United States.
c. Section 5 of the Act of March 2, 1907 provided that a child born abroad may acquire citizenship if the child began to reside permanently in the United States after the parent(s)’ naturalization, while the child was under 21 years of age (see 8 FAM 301.10-2(F) regarding the residing in requirement).
8 FAM 301.9-4 Naturalization Prior to May 24, 1934 Chart
(CT:CITZ-57; 06-07-2021)
|
Date of Parent(s)’ Naturalization |
Who Naturalized |
Age Limit |
Date of Automatic Acquisition If Residing in United States When Parent(s) Naturalized |
Date of Automatic Acquisition If Residing Abroad When Parent(s) Naturalized |
Law Applicable |
|
Prior to March 2, 1907 |
Either parent |
Under 21 |
Date of naturalization of parent(s) |
Date child lawfully admitted to United States for permanent residence |
Section 2172 Revised Statutes (Act of April 14, 1802) |
|
March 2, 1907 to Noon Eastern Standard Time May 24, 1934 |
Either parent |
Under 21 |
Date of naturalization of parent(s) |
Date child lawfully admitted to United States for permanent residence |
Section 2172 Revised Statutes; Section 5 of Act of March 2, 1907 |
8 FAM 301.9-5 Naturalization of Children by Parent(s)’ Naturalization On Or After 12 O’Clock Noon, Eastern Standard Time, May 24, 1934
(CT:CITZ-57; 06-07-2021)
a. Section 5 of the Act of March 2, 1907 was amended by Section 2 of the Act of May 24, 1934 to provide U.S. citizenship for children born abroad of parent(s) who are not U.S. citizen(s) or non-citizen U.S. national(s), through the naturalization of the father or mother before the child's 21st birthday. The child of a naturalized parent acquired U.S. citizenship five years after the child began to reside permanently in the United States.
b. A person claiming derivative naturalization under the act of May 24, 1934, who has not been previously documented as a U.S. citizen, must submit the following evidence in support of the claim:
(1) The parent's certificate of naturalization (see 8 FAM 303.1-1), issued on or after May 24, 1934;
(2) The foreign birth record, which is evidence of relationship to the U.S. citizen parent(s) and that the child was under the age of 21 when the parent was naturalized (see 8 FAM 303.4-2);
(3) Evidence that the child was residing permanently in the United States for five years after the parent’s naturalization; and
(4) Evidence that the child was lawfully admitted to the United States for permanent residence (see 8 FAM 303.4-4(A)).
8 FAM 301.9-6 Naturalization of Children by Parent(s)’ Naturalization On Or After 12 O’Clock Noon, Eastern Standard Time, May 24, 1934 Chart
(CT:CITZ-112; 09-06-2024)
|
Date of Parent(s)’ Naturalization |
Who Naturalized |
Age Limit |
Date of Automatic Acquisition If Residing in United States |
Date of Automatic Acquisition If Residing Abroad |
Law Applicable |
|
Noon Eastern Standard Time May 24, 1934 to January 13, 1941 |
One parent, other remaining a non-U.S. citizen; or
Non-U.S. citizen parent (other being a U.S. citizen). |
Under 21 |
Upon completion of 5 years residence in the United States, including residence completed after age 21 and after January 13, 1941 |
Upon completion of 5 years residence in the United States, including residence completed after age 21 and after January 13, 1941 |
Section 5 of Act of March 2, 1907, as amended by Section 2 of the Act of May 24, 1934 |
8 FAM 301.9-7 Naturalization of Children Through Their Parents On and After January 13, 1941 - The Nationality Act of 1940
(CT:CITZ-57; 06-07-2021)
A person claiming derivative naturalization under Sections 313-134 of the Nationality Act of 1940 on or after January 13, 1941 (the effective date of the Act), who has not been previously documented as a U.S. citizen, must submit the following in support of the claim:
(1) The parent(s)' certificate of naturalization (see 8 FAM 303.1-1);
(2) The foreign birth record, which is evidence of relationship to the U.S. citizen parent(s) and reflecting that the child was under the age of 18 when the statutory requirements were met (see 8 FAM 303.4-2); and
(3) Evidence that the child was residing permanently in the United States on or after the last parent’s naturalization;
(4) Evidence that the child was lawfully admitted to the United States for permanent residence (see 8 FAM 303.4-4(A));
(5) If the parents were divorced or separated, evidence of legal custody (see 8 FAM 303.4-4(C)); and
(6) If a child seeks to derive citizenship through the naturalization of a surviving parent, the foreign parent's death certificate.
8 FAM 301.9-8 Naturalization of Children Through Their Parents On and After January 13, 1941 - The Nationality Act of 1940 Chart
(CT:CITZ-112; 09-06-2024)
|
Date of Parent(s)’ Naturalization |
Who Naturalized |
Age Limit |
Date of Automatic Acquisition If Residing in United States |
Date of Automatic Acquisition If Residing Abroad |
Law Applicable |
|
January 13, 1941 to December 24, 1952 |
Non-U.S. citizen parent, other being U.S. citizen from child’s birth |
Under 18 |
Date of naturalization of parent |
Date child lawfully admitted to United States for permanent residence |
Section 313 Nationality Act of 1940 |
|
January 13, 1941 to December 24, 1952 |
Both parents; or Surviving parent; or
Parent having custody in legal separation |
Under 18 |
Date of naturalization of parent |
Date child lawfully admitted to United States for permanent residence |
Section 314 Nationality Act of 1940 |
8 FAM 301.9-9 Naturalization of Children Through Their Parents
8 FAM 301.9-9(A) On and After December 24, 1952 - Section 320 of the Immigration and Nationality Act (INA) of 1952, As Originally Enacted
(CT:CITZ-112; 09-06-2024)
a. The now-repealed INA 320 was entitled “Child Born Outside of the United States to One Alien Parent and One Citizen Parent At Time of Birth; Conditions Under Which Citizenship Was Automatically Acquired.” Inherent in the title of the section, as well as in the text, is the requirement that one U.S. citizen parent must have been a citizen at the time of the child's birth. The former INA 320(a) reads:
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"A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United States, shall, if such alien parent is naturalized, become a citizen of the United States, when- "(1) such naturalization takes place while such child is under the age of sixteen years; and "(2) such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of sixteen years." |
b. Therefore, for a child to acquire under former INA 320, one parent must have been a U.S. citizen at the time of the child's birth. There may still be claims to U.S. citizenship under this section as originally enacted or other applicable statutory provisions (e.g., expeditious naturalization under INA 322--see 8 FAM 301.9-9(D)).
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NOTE: The October 5, 1978 amendment (Public Law 95-417) modified sections (a)(1) and (a)(2) "to delete the word 'sixteen' and substitute in lieu thereof the word 'eighteen.'" This was interpreted as applying on and after December 24, 1952. |
c. The Department interprets the language regarding the non-U.S. citizen ("alien") parent as including non-citizen U.S. national parents. The child of a U.S. citizen parent and a non-U.S. citizen national parent is not disadvantaged in terms of acquisition of U.S. citizenship because one parent is a non-citizen U.S. national as opposed to a non-U.S. citizen.
d. The former INA 320(a)(2) also stipulated that the child must have been "residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of 18." Children did not automatically acquire U.S. citizenship if they never resided in the United States as lawful permanent residents while under the age of 18.
e. In considering former INA 320 cases, it was imperative to determine whether the child was residing in or had begun to reside permanently in the United States after the naturalization of the other parent. Absent evidence establishing that the child had a permanent residence in the United States while under the age of 18, or had begun to establish one, citizenship acquisition would not occur. It is important therefore to consider INA 101(a)(33) wherein "residence" is defined as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." In determining whether an individual has established a permanent residence, you must consider the specific facts of each case (see 8 FAM 301.10-2(F) regarding "residing").
f. A person claiming derivative naturalization through the naturalization of the other parent under INA 320 as originally enacted must submit the following evidence in support of the claim:
(1) Evidence that one parent was a U.S. citizen at the time of the child’s birth (see 8 FAM 303.4-2);
(2) The parent's certificate of naturalization (see 8 FAM 303.1-1);
(3) Evidence of the child’s birth reflecting that the child was under the age of 18 at the time of the parent's naturalization;
(4) Evidence that the child was residing permanently pursuant to a lawful admission for permanent residence in the United States on or after the parent’s naturalization, while under the age of 18; and
(5) Evidence that the child was lawfully admitted to the United States for permanent residence (see 8 FAM 303.4-4(A)).
8 FAM 301.9-9(B) On and After December 24, 1952 - Section 320 and 321 of the Immigration and Nationality Act (INA) of 1952, As Originally Enacted Chart
(CT:CITZ-112; 09-06-2024)
|
Date of Parent(s)’ Naturalization |
Who Naturalized |
Age Limit |
Date of Automatic Acquisition If Residing in United States |
Date of Automatic Acquisition If Residing Abroad When Parent(s) Naturalized |
Law Applicable |
|
Subsequent to October 5, 1978 |
Non-U.S. citizen parent, other being U.S. citizen from child’s birth |
Under 18 |
Date of naturalization of parent |
Date child lawfully admitted to United States for permanent residence |
INA 320, as amended |
|
Subsequent to December 24, 1952 |
Non-U.S. citizen parent, other being U.S. citizen from child’s birth |
Under 16, but this section has been reinterpreted to apply from December 24, 1952 to minors under the age of 18. |
Date of naturalization of parent |
Date child lawfully admitted to United States for permanent residence |
INA 320, as originally enacted |
|
Subsequent to December 24, 1952 |
Both parents; or Surviving parent; or
Parent having custody in legal separation; or
Mother of child born out of wedlock |
Under 16, but this section has been reinterpreted to apply from December 24, 1952 to minors under the age of 18. |
Date of naturalization of parent |
Date child lawfully admitted to the United States for permanent residence |
INA 321, as originally enacted |
8 FAM 301.9-9(C) FORMER INA 321
(CT:CITZ-112; 09-06-2024)
a. As originally enacted, former INA 321 (8 U.S.C. 1432) provided:
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“Child Born Outside of the United States of Alien Parent; Conditions Under Which Citizenship Automatically Acquired” (a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions: The naturalization of both parents; or The naturalization of the surviving parent if one of the parents is deceased; or The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if Such naturalization takes place while such child is under the age of eighteen years; and Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clauses (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of sixteen years.
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b. The act of October 5, 1978, Public Law 95-417, 92 Statutes at Large 917 amended INA 321(a) as originally enacted, to raise from 16, to 18, the age upon which all the conditions of the law had to be fulfilled for citizenship to be acquired. In addition, the amendment included a new subsection:
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(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to lawful admission for permanent residence." |
c. If all the conditions specified in INA 321(a) are satisfied at the same time before the minor’s 18th birthday, the order in which they occur is irrelevant. Citizenship would be acquired on the date the last condition is satisfied:
(1) This interpretation of INA 321(a) reflects guidance agreed upon by CA/PPT, CA/OCS and the former INS, effective November 6, 1996; and
(2) This interpretation was also adopted by the Board of Immigration Appeals (BIA) in the case In re Fuentes-Martinez, 21 I. & N. Dec. 893 (BIA 1997). The BIA held that a child who has satisfied the statutory conditions of INA 321(a), before the age of 18 has acquired derivative United States citizenship regardless of the child’s age at the time the amendments to that section of the Act of October 5, 1978 took effect. The BIA concluded that “the two provisions of the 1978 Amendments, amending sections 320 and 321 of the act, are retroactive to the December 24, 1952 enactment of the act, and persons who can establish that they fulfilled the amended provisions may be documented as United States citizens.”
d. The Department interprets the language regarding the non-U.S. citizen ("alien") parent as including non-citizen U.S. national parents. The child of a U.S. citizen parent and a non-U.S. citizen national parent is not disadvantaged in terms of acquisition of U.S. citizenship because one parent is a non-citizen U.S. national as opposed to a non-U.S. citizen.
e. Former INA 321 required either the naturalization of both parents or one parent upon:
(1) Divorce or legal separation when the naturalized parent had legal custody;
(2) Naturalization of the parent when the other was deceased; or
(3) Naturalization of the out-of-wedlock mother.
f. The phrase "the parent having legal custody" includes a parent who has joint legal custody after divorce or separation, i.e., it is not necessary for the naturalized parent to have sole legal custody to transmit U.S. citizenship under INA 321.
g. Individuals who claim U.S. citizenship under former INA 321 and who have not yet submitted evidence of U.S. citizenship, must submit the following as proof of U.S. citizenship:
(1) Proof of relationship to the parent(s) (see 8 FAM 303.4-2);
(2) The parent(s)' naturalization certificate(s) (see 8 FAM 303.1-1);
(3) If seeking to derive U.S. citizenship through a U.S. citizen father, the parents' foreign marriage certificate or other proof of legitimation (see 8 FAM 303.4-3);
(4) Evidence of the child's lawful admission (see 8 FAM 303.4-4(A));
(5) Evidence that the child is residing in the United States (see 8 FAM 303.4-4(B));
(6) If the parents are divorced or legally separated, evidence of legal custody (either sole or joint custody is acceptable) (see 8 FAM 303.4-4(C)); and
(7) If the non-U.S. citizen parent was deceased prior to the child's 18th birthday, a death certificate (domestic or foreign) (see 8 FAM 303.4-4(C)).
h. In the case of a child born abroad out of wedlock, former INA 321(a)(3) confers citizenship if:
(1) The parents were married at the time of the child’s birth but later legally separated, or were married subsequent to the child’s birth and then legally separated. The clause does not require that a child be born into wedlock: a child born out of wedlock whose parents later marry and legally separate qualifies under INA 321(a)(3); or
(2) The mother naturalizes, and paternity of the child through legitimation was not established prior to the child's 18th birthday. (A child born abroad out of wedlock to a foreign father who later naturalizes after the child's birth does not acquire U.S. citizenship under INA 321(a)(3).)
(a) See 8 FAM 303.4-3(D) for general guidance on legitimation and consult the Foreign and U.S. Legitimation Law Charts on the CAWeb Passport Adjudication page for guidance on specific jurisdictions.
(b) Some states, countries, and other jurisdictions grant all children equal rights, regardless of the parent's marital status, which effectively legitimates all children in that jurisdiction. However, for purposes of former INA 321, the fact that a state, country, or other jurisdiction grants all children equal rights does not end the derivative citizenship inquiry. Instead, where such a jurisdiction also retains (or did retain at a relevant time) a method of legitimation that required an affirmative act to legitimate an out-of-wedlock child, paternity is not established by legitimation without the affirmative act. In such cases, the child may only be considered to have established "paternity by legitimation" under former INA 321 where the father has taken any necessary affirmative acts required by the local jurisdiction to legitimate the child--such as having their name added to the birth record, marrying the child’s mother, or petitioning the court for a paternity finding—before the child’s 21st birthday. The Foreign and U.S. Legitimation Law Charts have been annotated with footnotes to indicate when an equal rights jurisdiction has or had a formal legitimation method.
(c) (U) Once a child is legitimated, no further action is needed to maintain that status. For example, if a child is legitimated under the laws of the child's residence, but then moves to a different residence, the child remains legitimated even if the law of the new residence would not permit legitimation. Consequently, an applicant seeking citizenship under this prong of former INA 321 must show that they were not legitimated under any country or state in which they had a domicile or residence prior to age 18.
. The adoption provision in former INA 321(a) as amended in 1978 only applies when the child was born abroad and adopted by foreign parents and the other requirements of Section 321(a) are met (see 8 FAM 301.9-10).
8 FAM 301.9-9(D) Immigration and Nationality Technical Corrections Act of 1994 (INTCA) -Expeditious Naturalization April 1, 1995 - February 26, 2001 - INA 322
(CT:CITZ-112; 09-06-2024)
a. The Immigration and Nationality Technical Corrections Act of 1994 (INTCA) (Public Law 103-416), enacted October 25, 1994, which became effective April 1, 1995, provided for changes to INA 322, allowing a U.S. citizen who was unable to meet the transmission requirements of INA 301 as made applicable by INA 309, to apply for the expeditious naturalization of that child. The 1994 revision provided that certain prerequisites must be satisfied:
(1) One parent must be a U.S. citizen;
(2) The child is physically present in the United States pursuant to a lawful admission;
(3) The child is under age 18 and in the legal custody of the U.S. citizen parent;
(4) If the child has been adopted, the adoption must have been finalized prior to the age of 16 and the child meets the adoption requirements of INA 101(a)(1)(E) or INA 101(b)(1)(F);
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NOTE: This should not be confused with the Child Citizenship Act of 2000. |
(5) If the citizen parent has not been physically present in the United States for a minimum of five years at least two after reaching the age of 14, the child is residing in the United States as a lawful permanent resident; and
(6) If the child is not a lawful permanent resident, they have a U.S. citizen grandparent who has been physically present for the requisite period of time.
b. If the U.S. citizen parent and child (unmarried, under the age of 18) were living in the United States and the child entered the United States with a U.S. immigrant visa as a lawful permanent resident, the parent could apply for expeditious naturalization of the child at the United States Citizenship and Immigration Services (USCIS) District Office with jurisdiction over their place of residence in the United States using USCIS form N-600, Application for Certificate of Citizenship. A person who met the requirements of the law can still apply for a Certificate of Citizenship, even though the law has been repealed.
c. If the U.S. citizen parent and the child (unmarried, under the age of 18) were residing abroad, the child could be eligible for expeditious naturalization if the U.S. citizen parent’s parent (the child's U.S. citizen grandparent) was physically present in the United States for a period totaling 5 years, 2 after the age of 14. The grandparent could be living or deceased at the time of the application. If deceased, the grandparent must have been a citizen prior to the child's birth and at the time of the grandparent's death. The parent should complete and file USCIS form N-600-K, Application for Certificate of Citizenship Issuance of Certificate under INA 322 and send the form, supporting documents, and the required fee to one of the USCIS field offices in the United States. USCIS will determine whether the child is eligible, approve the application, and forward the parent a letter and naturalization appointment. The parent should present this to post and post will issue the child a B-2 visa (see 9 FAM 402.2-4(B)(7)). This procedure allows parents to make a "one stop" visit to the United States for the purposes of naturalizing their child as a U.S. citizen. For the naturalization benefit to be granted, the application must be filed, adjudicated, and approved by USCIS, with the oath of allegiance administered before the child's 18th birthday.
d. Evidence of citizenship to be presented for a person claiming expeditious naturalization under INA 322, as enacted in the INTCA consists of a certificate of citizenship issued to the applicant by USCIS.
8 FAM 301.9-10 Adopted Children and Derivative Naturalization PRIOR TO FEBRUARY 27, 2001
(CT:CITZ-112; 09-06-2024)
a. The October 5, 1978 amendment to INA 320 (Public Law 95-417) provided that:
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(b) Subsection (a)(1) of this section shall apply to a child adopted while under the age of sixteen years who is residing in the United States as the time of naturalization of such adoptive parent, in the custody of his adoptive parents, pursuant to a lawful admission for permanent residence. |
(1) This amendment applied to adopted children who met the requirements at the time of enactment. For example, a child born overseas adopted by a U.S. citizen and non-U.S. citizen who met all of the former INA 320(a) requirements prior to October 5, 1978 (e.g., non-U.S. citizen parent naturalized, residing in the United States pursuant to lawful permanent residence, etc.), but was still under the age of eighteen when the amendment came into effect, would have acquired; and
(2) On December 29, 1981, Public Law 97-116 provided that:
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sections 320(b), 321(b), and 322(b) are each amended by striking out "a child adopted while under the age of sixteen years who" and inserting in lieu thereof "an adopted child only if the child". |
b. Foreign-born adopted children who were over 18 years old on October 5, 1978, had to be naturalized in their own right. They could not derive citizenship automatically through their adoptive parents’ naturalization. Applicants in this category should submit their naturalization certificates or a previously issued U.S. passport.
c. Applicants who acquired under Public Law 95-417 or Public Law 97-116 must submit:
(1) Evidence of adoption (see 8 FAM 303.4-4(D));
(2) The adoptive parent(s)' naturalization certificate(s) (see 8 FAM 303.1-1);
(3) Evidence that the child resided with a U.S. citizen parent prior to age 18; and
(4) Evidence that the child was lawfully admitted to the United States for permanent residence (see 8 FAM 303.4-4(A)).