UNCLASSIFIED (U)

8 FAM 301.10

Acquisition of U.S. Citizenship under the Child Citizenship Act

(CT:CITZ-50;   01-21-2021)
(Office of Origin:  CA/PPT/S/A)

8 FAM 301.10-1  Introduction

(CT:CITZ-37;   06-08-2020)

a. The Child Citizenship Act of 2000 (CCA), Public Law 106-395, repealed Immigration and Nationality Act (INA) Section 321 and amended INA Section 320 and INA Section 322.  INA Section 320 provides for automatic acquisition of U.S. citizenship by certain foreign-born children of U.S. citizen parent(s) (whether by birth or adoption) who did not acquire U.S. citizenship at birth.  INA Section 322 provides for "expedited" naturalization of certain foreign-born children of U.S. citizen parent(s) by birth or adoption upon application to the Department of Homeland Security U.S. Citizenship and Immigration Service (DHS/USCIS).  The Department of State co-administers Section 320 with DHS/USCIS while DHS/USCIS alone administers Section 322.  This subchapter focuses on the requirements for automatic acquisition of U.S. citizenship at some point after birth under INA Section 320.  For information on INA Section 322, please visit USCIS.gov.

b. The CCA applies to three categories of children born abroad who were under the age of 18 on or after February 27, 2001; i.e., children born on or after February 28, 1983 who meet the applicable INA definition of child in INA 101(c) or 101(b) (for adopted children):

(1)  Children born abroad to an alien parent or parents who subsequently naturalized as a U.S citizen;

(2)  Children born abroad to (generally) alien parents and subsequently adopted by a U.S. citizen(s); and

(3)  Children born abroad to a U.S. citizen parent or parents who did not meet the requirements to transmit U.S. citizenship to the child at birth under INA 301 or INA 309:

(a)  Children acquiring U.S. citizenship under either section of the CCA (INA 320 and INA 322) are not eligible for form FS-240, Consular Report of Birth Abroad of a Citizen of the United States of America or form DS-1350, Certification of Report of Birth of a United States Citizen because such children did not acquire U.S. citizenship at birth; and

(b)  Children who have acquired U.S. citizenship at birth should be documented under INA Section 301 or 309.  However, you should not delay, deny, or limit a U.S. passport for a child born abroad who may have acquired U.S. citizenship at birth but who instead submits evidence of acquisition under the CCA.

c.  The CCA repealed INA 321 (see 8 FAM 301.9 regarding acquisition of U.S. citizenship under former INA 321).

d. The CCA also amended INA 322 to provide for expeditious naturalization upon application for children in the categories listed in paragraphs b(1)-(3) above who are residing outside the United States. 

e. U.S. citizenship is acquired when all of the statutory requirements are met.  It does not matter in which order the requirements are met.  The date of fulfillment of the last condition to be fulfilled will be the date of acquisition ( see 8 FAM 301.10-2(F) if "residing" is the last condition).

f.  Parents of children who acquired U.S. citizenship automatically under the CCA may apply for a Certificate of Citizenship from USCIS (a Certificate of Citizenship is not required to issue a passport) and/or a U.S. passport.

g. As with claims to U.S. citizenship under INA 301 and 309, there is no legal requirement that a child who acquired U.S. citizenship automatically under INA 320 must be documented as a U.S. citizen with a U.S. passport or a Certificate of Citizenship, but as a practical matter, such documentation is often necessary to obtain many of the rights and benefits of U.S. citizenship. 

h. As with claims of acquisition at birth under INA 301 or 309, the claim to U.S. citizenship under INA 320 can be adjudicated at any time.  However, if all of the requirements are not met by age 18, e.g., the U.S. citizen parent of a child born abroad did not naturalize as a U.S. citizen until after the child turned 18, then the child could not acquire U.S. citizenship under the CCA.

i.  Individuals claiming U.S. citizenship under INA 320 through a U.S. citizen parent who could not otherwise transmit citizenship to the child at birth or under former INA 320, 321 or former or current 322 may apply to USCIS for naturalization (as opposed to automatic acquisition under current INA 320 or expedited naturalization upon application under current INA 322).  The inability to acquire U.S. citizenship under the Child Citizenship Act of 2000 or earlier INA sections does not affect the validity of an individual's LPR status.

j.  This subchapter is organized to follow the provisions of the INA.

8 FAM 301.10-2  INA 320(a)

(CT:CITZ-37;   06-08-2020)

The text of INA 320(a) is as follows:

Sec. 320. [8 U.S.C. 1431] (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

          (1) At least one parent of the child is a citizen of the United States, whether by           birth or naturalization.

          (2) The child is under the age of eighteen years.

          (3) The child is residing in the United States in the legal and physical custody of           the citizen parent pursuant to a lawful admission for permanent residence.

8 FAM 301.10-2(A)  Definition of Child

(CT:CITZ-37;   06-08-2020)

a. The term "child" is defined for INA 320 in INA 101(c):

(1) The term "child" means an unmarried person under twenty-one years of age and includes 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 the United States or elsewhere, and, except as otherwise provided in sections 1431 and 1432 of this title, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of 16 years (except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)(1)), and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.

b. Because a child must be unmarried, lawfully-married children cannot acquire U.S. citizenship under INA 320(a) (see also 7 FAM 1740 regarding forced marriage of minors).

c.  Children born out of wedlock to U.S. citizen fathers must be legitimated. Legitimation is a concept that does not apply to U.S. citizen mothers:

(1)  The laws of either the child's or the father's place of residence or domicile may be used to establish legitimation;

(2)  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, when adjudicating legitimation, you may need to require evidence of previous residences or domiciles for the child and the father to determine whether the child was legitimated under the laws of a previous residence or domicile; and

(3)  Children born in wedlock to parents married to each other are legitimate (see 8 FAM 304.1 regarding birth in, of, and out of wedlock). 

d. Stepchildren cannot avail themselves of the CCA unless they have been adopted by the U.S. citizen stepparent.

e. An adopted child must meet the definition of adopted child in INA 101(b)(1)(E), (F), or (G) before the provision of INA 320(a) apply.

8 FAM 301.10-2(A)  Definition of Born Outside the United States

(CT:CITZ-37;   06-08-2020)

a. INA 101(a)(38) provides that the term "United States" means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands.

b. Because American Samoa and Swains Island are not included in the definition of the United States, children born in American Samoa and Swains Island cannot acquire U.S. citizenship under the CCA.  Such children are non-citizen U.S. nationals who may travel to the United States without the need for a visa or LPR status; thus they are not "admitted" to the United States for purposes of the CCA (see 8 FAM 301.10-2(H)).

8 FAM 301.10-2(C)  Definition of Parent

(CT:CITZ-37;   06-08-2020)

a. The term "parent" is defined for INA 320 in INA 101(c) as including:

(2) The terms "parent", "father", and "mother" include in the case of a posthumous child a deceased parent, father, and mother.

b. Although the parent should be alive for the child to derive U.S. citizenship under INA 320, an exemption is made in INA 101(c) for posthumous children.  See also 8 FAM 301.10-5 regarding acquisition through the grandparents under INA 322.

8 FAM 301.10-2(D)  Parental Citizenship

(CT:CITZ-37;   06-08-2020)

How the parent acquired U.S. citizenship is immaterial.  The parent could have acquired at birth (either by birth in the United States or abroad to U.S. citizen parent(s)) or through naturalization (the parent(s') own or through derivative naturalization).

8 FAM 301.10-2(E)  Under Age 18

(CT:CITZ-37;   06-08-2020)

To acquire U.S. citizenship, the applicant must fulfill all the criteria prior to midnight on the day before the applicant's eighteenth birthday in the U.S. time zone where the applicant is located.  For example, an applicant who was lawfully admitted and began to reside in the United States at 11:59 p.m. on the day before the applicant's 18th birthday could acquire U.S. citizenship under INA 320.  An applicant who was lawfully admitted at 12:01 a.m. on the applicant's 18th birthday would be ineligible to acquire U.S. citizenship under INA 320--this is the case even if it is still the day before in the applicant's place of birth.

8 FAM 301.10-2(F)  Residing in the United States

(CT:CITZ-37;   06-08-2020)

a. The INA does not define "is residing in," but it does define the term "residence" in INA 101(a)(33):

(33) The term "residence" means 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.

b. Determining whether a person is residing/has resided in the United States typically entails analysis of both the character and duration of the stay.

c.  If it is not clear that the applicant is residing/has resided in the United States, you must request appropriate evidence (see 8 FAM 303.4).

d. Given the difficulty of determining an exact date on which a person begins “residing in the United States” for citizenship acquisition purposes, and for the sake of consistency, if all other requirements of INA 320 have been met, you should use the date of lawful admission to the United States as the date upon which the child acquired U.S. citizenship.

8 FAM 301.10-2(F)(1)  Analyzing the Character of the Stay

(CT:CITZ-37;   06-08-2020)

a. Each case must be considered on its own merits.  In general, the longer the duration of the stay, the less need there is to analyze the character of the stay. For example, a stay in the United States of less than three months might not constitute “residing in the United States” in the absence of additional evidence. A stay of three to six months might qualify as “residing in the United States,” depending upon its character, but, again, supporting evidence may be required. A stay in excess of six months generally would qualify as “residing in the United States.”

b. In some cases, a stay of a short duration will, because of its character, meet the “is residing in” requirement. For example, a child who attends boarding school abroad but spends time in the United States in the legal and physical custody of the citizen parent residing in the United States generally would be considered to be residing in the United States for purposes of INA 320. Similarly, a child whose divorced parents have joint custody and who stays with each parent would be considered to reside with both parents and, assuming at least one U.S. citizen parent lives in the United States, the child would meet the “is residing in” requirement by staying with that parent.

c.  Analyzing the character of the stay may also include analyzing the character of any departures from the United States.  For example, a week-long visit to a foreign country for purposes of tourism would not mean that the applicant is no longer residing in the United States.  You should apply the same criteria to determine whether the applicant is in fact residing overseas during the departure.

8 FAM 301.10-2(F)(2)  Analyzing the Duration of the Stay

(CT:CITZ-37;   06-08-2020)

INA 320 does not provide a time limit for what constitutes "residing in."  For example, an applicant who was lawfully admitted to the United States on the day before the applicant's eighteenth birthday and began to reside in the United States starting that day would acquire U.S. citizenship even though only a few hours were spent residing in the United States prior to age 18.  By contrast, an applicant who attended school in the United States but resided across the border would not acquire U.S. citizenship under the CCA, even though that applicant may have spent a time equivalent to a few years in the United States prior to age 18.

8 FAM 301.10-2(F)(3)  Children of Military Members and Federal Government Personnel Serving Abroad.

(CT:CITZ-37;   06-08-2020)

a. For children of military members and federal government personnel serving abroad, INA 320(c) requires that the U.S. citizen parent (whether the U.S. citizen parent is the person serving abroad or the spouse of such a person) and the child be stationed abroad, i.e., they must be residing abroad under orders and not simply residing abroad for personal reasons.  For example, a Department employee who is stationed in St. Albans, Vermont, but chooses to reside in Philipsburg, Quebec, Canada, would not be stationed abroad.  Because INA 320(c) requires that the U.S. citizen parent be stationed abroad, it is not applicable to the children of locally-employed (LE) staff.

b. Determining whether someone is residing abroad under new INA 320(c) is much simpler than the same task under INA 320(a), which requires analyzing the character and duration of the stay.  Under INA 320(c), if the U.S. citizen parent and the child are abroad as a permanent change of station, they are residing abroad.  If the U.S. citizen parent and the child are abroad on temporary duty, they are not residing abroad;

c.  The evidence needed to support a claim of residence abroad under INA 320(c) is travel orders or an equivalent document demonstrating that:

(1)  The U.S. citizen parent is a U.S. government employee (see 8 FAM 301.7-3(B) regarding employment with the United States government); or the spouse of such a person or the U.S. citizen parent is a member of the Armed Forces or the spouse of such a person;

(2)  The U.S. citizen parent was stationed abroad on a permanent change of station basis or is the U.S. citizen spouse of such a person; and

(3)  The child is listed on the orders of the parent(s) serving abroad.

d. No specific period of residence is provided in the act.  If the last requirement to be met is the “residing in” requirement of INA 320, the date of acquisition will be the report on duty date on the U.S. citizen parent’s orders or equivalent document.

e. The Citizenship for Children of Military Members and Civil Servants Act does not specify that it is retroactive.  Consequently, it applies to those who were under age 18 on March 26, 2020.

8 FAM 301.10-2(F)(4)  What Does Not Constitute "Residing in the United States"

(CT:CITZ-37;   06-08-2020)

a. Mere entry into the United States or a temporary visit–even if on an immigrant visa–does not meet the “residing in the United States” requirement.  Unless there are other facts establishing that the child is residing/has resided in the United States, the applicant would not acquire U.S. citizenship upon entry.

b. A permanent resident card (PRC) or foreign passport with an I-551 stamp establishes that the child was lawfully admitted for permanent residence, but does not alone establish that the child is residing/has resided in the United States.  Consequently, when informing parents about INA 320, posts should not recommend that they apply for an immigrant visa for the child solely for the purpose of the child entering, but not residing in, the United States.

c.  In contrast with INA 320, INA 301(g), which applies to a person born abroad in wedlock to a U.S. citizen and an alien, contains language that specifically permits a transmitting U.S. citizen parent’s time spent abroad in honorable service in the Armed Forces of the United States, employed with the U.S. government or certain international organizations, or as the dependent child of someone so employed, to count toward the parent's physical presence in the United States prior to the person’s birth.  Note the difference between physical presence of a parent under INA 301(g) and requirement in INA 320 for the child to be residing or have resided in the United States.

e. If the applicant previously resided in the United States, but is no longer residing in the United States when the other criteria are met (e.g., when a parent is naturalized), the applicant did not acquire U.S. citizenship under INA 320.

f.  If a family has resided and continues to reside abroad, they may be able to pursue a claim for the child under INA 322, which provides for expedited naturalization upon application to USCIS for a Certificate of Citizenship after meeting the other requirements of INA 322.

8 FAM 301.10-2(G)  "In the Legal and Physical Custody of the U.S. Citizen Parent" under INA 320(a)(3)

(CT:CITZ-37;   06-08-2020)

a. INA 320(a) requires that the child be residing in the United States in the legal and physical custody of the U.S. citizen parent.  INA 320(a) does not require sole legal custody or that the U.S. citizen parent be the primary residential parent.

b. The Department previously interpreted physical custody in INA 320(a) as meaning actual, bodily custody.  Consequently, it was assumed that if the applicant appeared in person with the U.S. citizen parent, then the U.S. citizen parent had physical custody of the applicant and no further evidence was required if the applicant was under age 18.  The Department no longer interprets physical custody in this manner.  In the context of INA 320(a), physical custody is connected to residing in the United States.

c.  To determine that an applicant is in the physical custody of the U.S. citizen parent, you must first determine whether the U.S. citizen parent is residing in the United States.  You may need to analyze the character of the stay if the U.S. citizen parent maintains a separate residence from the other parent(s).  For example, if the U.S. citizen parent has very limited visitation, e.g., a few hours of supervised visitation on specific days, the applicant would not be residing with the U.S. citizen parent; and

d. Absent evidence to the contrary, you may assume that the applicant is residing with the U.S. citizen parent if:

(1)  There is a court order granting physical custody; or

(2)  The U.S. citizen parent's address is the same as the child's permanent or mailing address.  If the applicant is currently over age 18, you may need to request evidence that the applicant was residing with the U.S. citizen parent prior to age 18, e.g., a school record listing the parent's address.

e. There is no time limit on physical custody.  The applicant fulfills the physical custody requirement when the applicant begins to reside with the U.S. citizen parent.

f.  See 8 FAM 303.4-4(C) for guidance regarding evidence of physical and legal custody.

8 FAM 301.10-2(H)  "Pursuant to a Lawful Admission for Permanent Residence

(CT:CITZ-37;   06-08-2020)

a. The applicant must submit evidence that the applicant is residing in the United States in the legal and physical custody of the U.S. citizen parent pursuant to a lawful admission for permanent residence (see 8 FAM 303.4-4(A)), i.e., the applicant was admitted on an immigrant visa or adjusted to an immigrant entry code such as IR-7.  Admission on a non-immigrant visa such as a K-2 visa is not acceptable.  Children adopted by U.S. citizens or claiming citizenship through the naturalization of a parent cannot benefit from INA 320 unless they have LPR status, even if they are residing in the United States.

b. As long as the applicant maintains LPR status, the applicant has fulfilled the lawful admission requirement: for example, a vacation overseas does not constitute abandoning LPR status (see 8 FAM 303.4-4(A) for guidance on evidence of LPR status).

c.  After an individual has acquired U.S. citizenship under the CCA, there are no retention requirements.  This is the case even if the individual has not been documented as a U.S. citizen with a U.S. passport or Certificate of Citizenship.

d. Non-citizen U.S. nationals may travel to the United States without the need for a visa or LPR status, and are not "admitted" to the United States like an alien would be.  Consequently, an applicant born in American Samoa or on Swains Island cannot acquire U.S. citizenship under INA 320(a) and is entitled only to issuance of a U.S. passport endorsed to reflect that the applicant is a non-citizen U.S. national (endorsement code 09).  However, if the applicant provides a Certificate of Naturalization with the passport application or acquired U.S. citizenship at birth under either INA 301 or INA 309, then the applicant may be issued a passport as a U.S. citizen.  (Non-citizen U.S. nationals, once they are adults, can apply for naturalization as U.S. citizens (INA 325), and any time they resided in American Samoa or on Swains Island would count toward their residence requirement.)

e. Entry codes:

(1)  The applicant may have any entry code that indicates lawful admission for permanent residence;

(2)  The applicant is not required to have one of the entry codes listed in the following sections in order to acquire U.S. citizenship; and

(3)  If the applicant has fulfilled the entry code requirements, the applicant is not required to update the PRC in order to acquire U.S. citizenship--USCIS will not issue an updated PRC because the applicant has acquired U.S. citizenship.

8 FAM 301.10-2(H)(1)  IR-2 - Child of a U.S. Citizen

(CT:CITZ-37;   06-08-2020)

a. The IR-2 entry code is issued to:

(1)  Biological children who did not acquire at birth under INA 301 or 309;

(2)  Stepchildren (who cannot acquire under INA 320(a)); and

(3)  Adopted children (see 8 FAM 301.10-3).

b. When adjudicating acquisition of U.S. citizenship under INA 320, you must determine whether a biological and/or legal relationship exists between parent and child.

8 FAM 301.10-2(H)(2)  IR-7 - Child of a U.S. Citizen

(CT:CITZ-37;   06-08-2020)

a. The IR-7 entry code is identical to the IR-2 except that the visa status and category were adjusted domestically, rather than abroad.  Therefore, you may have a case where a child who entered the U.S. as a tourist or a student and whose status was subsequently adjusted by the parent here in the United States.

b. IR-7s must be adjudicated in the same manner as IR-2s.

c.  This code is also used under INA 320(B) (see 8 FAM 301.10-3(J)).

8 FAM 301.10-3  INA 320(B)

(CT:CITZ-37;   06-08-2020)

a. The text of INA 320(b) is as follows:

(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1).

b. INA 101(b)(1) states that an adopted child may acquire U.S. citizenship if the child fulfills all the criteria in INA 320(a) (see 8 FAM 301.10-2).  The text of INA 101(b)(1) corresponds with the entry codes.

c.  To keep families together, INA 101(b)(1)(E)(ii) (the sibling adoption law) provided that a natural sibling of a child adopted under age 16 may also acquire U.S. citizenship under INA 320(B) if the natural sibling was under age 18 when adopted.  All of the requirements of INA 101(b)(1)(E)(i) and INA 320(b) still apply, including being in the adopting parent(s') custody for two years.  Only the age at which the child was adopted is changed.

d. Entry codes:

(1)  The applicant may have any entry code that indicates lawful admission for permanent residence;

(2)  The applicant is not required to have one of the entry codes listed in the following sections in order to acquire; and

(3)  If the applicant has fulfilled the entry code requirements, the applicant is not required to update the PRC in order to acquire--USCIS will not issue an updated PRC because the applicant has acquired U.S. citizenship.

8 FAM 301.10-3(A)  CF-2 - Stepchild of a U.S. Citizen (Fiancé or Fiancée)

(CT:CITZ-37;   06-08-2020)

a. The CF-2 entry code is issued to children admitted conditionally into the United States as the stepchild of a U.S. citizen who is engaged to be married to the alien parent.  The U.S. citizen parent and alien parent must marry within 90 days.  The conditional category is valid for two years.

b. A child admitted as a CF-2 must fulfill all of the same requirements as a child admitted as a CR-2 (see 8 FAM 301.10-3(B)).

8 FAM 301.10-3(B)  CR-2 - Stepchild of a U.S. Citizen (Spouse)

(CT:CITZ-37;   06-08-2020)

a. The CR-2 entry code is issued to children admitted conditionally into the United States as the stepchild of a U.S. citizen who has been married to the alien parent for less than 2 years.  The conditional category is valid for 2 years and may be adjusted to an IR-2 at the end of the two years.  It is a conditional category because of the possibility of marriage fraud.

b. A child admitted as a CR-2 acquires U.S. citizenship automatically as soon as the child meets the statutory requirements of INA 320 (conditional resident status is not sufficient to acquire under INA 320).

c.  If the child is admitted as a CR-2 and is acquiring through the stepparent, the applicant must submit:

(1)  The parent's marriage certificate (see 8 FAM 303.4-3); and

(2)  A copy of a full and final foreign or domestic adoption decree (see 8 FAM 303.4-4(D)); or

(3)  The naturalization certificate of the biological parent.

d. In order for a child in this category to acquire U.S. citizenship, the adoption must have taken place prior to age 16 and the child must have resided with and in the custody of the U.S. citizen for 2 years.  The date which citizenship is acquired could be:

(1)  The date of the full and final domestic adoption; or

(2)  The two-year anniversary of the marriage, if there is a legal provision for the stepparent to acquire custody upon marriage (which usually involves a separate court order or operation of law).

e. You must verify the date of marriage to determine if the two-year requirements (length of marriage and legal and physical custody) have been met.  If one or both have not been met, the application must be denied.  However, you should advise the applicant that citizenship may be acquired as soon as the two-year requirement is met.  (Acquisition will depend on whether or not the child is still in the legal and physical custody of the U.S. citizen on the day the two-year requirement is met.)

f.  There is no requirement that the CR-2 status be adjusted to IR-2 status in order for the child to acquire U.S. citizenship as long as the child has been in the legal and physical custody of the U.S. citizen parent for 2 years and is under age 16 at the time of the adoption.

NOTE:  If a foreign spouse who married the U.S. citizen naturalizes, the child with the CR-2 status may have a claim to U.S. citizenship through that parent under INA 320(a).

8 FAM 301.10-3(C)  HH-6 - Haitian Adoptee

(CT:CITZ-37;   06-08-2020)

a. You should adjudicate the HH-6 visa code the same as an IR-3 (see 8 FAM 301.10-3(H)).

b. The applicant may present either a full and final foreign or domestic adoption decree.

c.  There is no requirement that the child must have been in the legal and physical custody of the adopting parent for two years.

8 FAM 301.10-3(D)  IF-2 - Stepchild of a U.S. Citizen Upon Marriage to Fiancé or Fiancée

(CT:CITZ-37;   06-08-2020)

a. The IF-2 entry code is issued to children admitted into the United States as the stepchild of a U.S. citizen.  The alien parent was admitted as a fiancé or fiancée of a U.S. citizen and has concluded a valid marriage contract with the U.S. citizen stepparent.

b. A child admitted as an IF-2 must fulfill all of the same requirements as a child admitted as a CR-2 (see 8 FAM 301.10-3(B)).

8 FAM 301.10-3(E)  IH-3 - Full and Final Adoption from Hague Convention Country

(CT:CITZ-37;   06-08-2020)

a. The IH-3 entry code is issued to children who:

(1)  Were residents of a country that is a party to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention);

(2)  Were residents of a country with which the Convention is in force for the United States;

(3)  Were the subject of a full, final, and legal adoption abroad by the petitioning U.S. citizen (and spouse, if married); and

(4)  Will reside in the United States with the adoptive parent(s).

b. Unlike IR-3 cases (see 8 FAM 301.10-3(H)), both parents are not required to see the child prior to the adoption in order for the IH-3 entry code to be issued. Unlike other adoptions, the two-year custody requirement does not apply to children adopted pursuant to the Convention.

c.  The USCIS Buffalo office processes newly entering IH-3 visa packets and automatically sends Certificates of Citizenship to eligible children without requiring additional forms or fees.  However, a Certificate of Citizenship is not required to document U.S. citizenship.  The child will automatically acquire U.S. citizenship as of the date of admission to the United States:

(1)  Upon residing in the United States with the U.S. citizen parent (see 8 FAM 301.10-2(F));

(2)  After having been lawfully admitted into the United States for permanent residence;

(3)  The IH-3 entry code was appropriate; and

(4)  The Convention adoptee is under the age of 18.

8 FAM 301.10-3(F)  IH-4 - Pending Adoption from Hague Convention Country

(CT:CITZ-37;   06-08-2020)

a. The IH-4 entry code is issued to children who:

(1)  Were residents of a country that is a party to the Convention;

(2)  Were residents of a country with which the Convention is in force for the United States; and

(3)  Will be adopted by the petitioning U.S. citizen (and spouse, if married) after being lawfully admitted to the United States.  The IH-4 entry code requires both petitioner intent to adopt and the satisfaction of any applicable pre-adoption requirements of the home state.

b. The petitioner must have acquired legal custody and authorization for the emigration and adoption of the child.

c.  Unlike the IH-3, to obtain a Certificate of Citizenship, beneficiaries must file form N-600 (Application for Certificate of Citizenship) and submit it to the local USCIS District Office or Sub-Office with jurisdiction over their permanent residence to receive a Certificate of Citizenship. However, a Certificate of Citizenship is not required to document U.S. citizenship.

8 FAM 301.10-3(G)  IR-2 - Adopted Child of a U.S. Citizen

(CT:CITZ-37;   06-08-2020)

a. The IR-2 entry code is issued to:

(1)  Biological children who do not acquire under INA 301 or 309 (see 8 FAM 301.10-2(H)(1));

(2)  Stepchildren (who cannot acquire under INA 320(a)); and

(3)  Adopted children (see 8 FAM 301.10-3).

b. When adjudicating citizenship, you must determine whether a biological and/or legal relationship exists between parent and child.

c.  In order for an adopted child in this category to acquire U.S. citizenship, the adoption must have taken place prior to age 16 or, in limited situations relating to the adoption of siblings, before the age of 18, and the child must have resided with and in the custody of the U.S. citizen for two years.  If the adoption decree is silent regarding length of legal custody and time residing with the adopting U.S. citizen parent, you must request additional evidence of custody and time residing with the U.S. citizen parent.

8 FAM 301.10-3(H)  IR-3 - Orphan Adopted Abroad by a U.S. Citizen

(CT:CITZ-37;   06-08-2020)

a. The IR-3 entry code is issued to orphaned children legally adopted abroad by:

(1)  An unmarried U.S. citizen;

(2)  Two U.S. citizens jointly; or

(3)  A married U.S. citizen and alien spouse jointly.

b. Only the foreign adoption decree is required as evidence of adoption (see 8 FAM 303.4-4(D)).

8 FAM 301.10-3(I)  IR-4 - Orphan to be Adopted by a U.S. Citizen

(CT:CITZ-50;   01-21-2021)

a. The child was:

(1)  Not legally adopted abroad, but was placed in the legal custody of the U.S. citizen by a competent authority in the child’s home country so that the U.S. citizen could and would adopt the child in the United States; or

(2)  Legally adopted abroad, but the adoptive parent or parents did not actually see the child prior to or during the adoption.

b. In order to acquire U.S. citizenship, children who were not legally adopted abroad must be adopted in the United States.  Because state law determines what constitutes a full and final adoption in each state, an IR-4 entry code does not necessarily mean that the family must adopt the child in the United States.  There are two reasons why a child would receive an IR-4, and only one of them would automatically require an adoption proceeding in the United States for the child to acquire U.S. citizenship:

(1)  If the child received an IR-4 because there was no final adoption abroad, e.g., the court only granted custody or guardianship for purposes of adoption in the United States, then the family would need to adopt the child in the United States; or

(2)  Where the adoption was finalized abroad but one adoptive parent did not see the child before the adoption, state law determines what is needed for the adoption to be final in that state (e.g., re-adoption).  The IR-4 entry code has no bearing on state adoption law requirements (unless the state has a law that specifically references and creates requirements based on the entry code).

c.  In all IR-4 cases you must ensure that the same parent or parents are readopting (e.g., by comparing the full and final U.S. adoption with the foreign adoption, reviewing visa records, etc.).  If there is any discrepancy, you should contact AskPPTAdjudication@state.gov.  See 8 FAM 303.4-4(D) regarding evidence of adoption or re-adoption.

NOTE:  This is not a public-facing e-mail address and public inquiries will not be replied to.

d. If the parents are required to obtain a domestic adoption or re-adoption order and the parents fail to complete this adoption process prior to the child's 18th birthday, the applicant should be referred to USCIS for naturalization procedures.

8 FAM 301.10-3(J)  IR-7 - Child of a U.S. Citizen

(CT:CITZ-37;   06-08-2020)

a. The IR-7 entry code is identical to the IR-2 except that the visa status and category were adjusted domestically, rather than abroad.  Thus, you may have a case of a child who entered the U.S. as a tourist or a student and whose status was subsequently adjusted by the parent here in the United States.

b. IR-7s must be adjudicated in the same manner as IR-2s.

c.  This code is also used under INA 320(a) (see 8 FAM 301.10-2(H)(2).

8 FAM 301.10-3(K)  SL-6 - Special Juvenile

(CT:CITZ-37;   06-08-2020)

a. SL-6 cases are special juvenile cases and there is no need for the adoptive parents to file a petition for the child to adjust because the child already has LPR status.

b. The adoptive parents must have custody of the child for two years and the child must have resided with the adoptive parents for two years.  Time spent in the physical custody of the parents before the actual adoption counts toward the two year physical custody requirement.

c.  If the first formal grant of legal custody was the adoption itself, then the child could acquire U.S. citizenship two years later.

8 FAM 301.10-4  INA 321

(CT:CITZ-37;   06-08-2020)

While the CCA repealed INA 321, individuals may still be documented as U.S. citizens if they can show that they have met the requirements of the former INA 321 prior to its repeal on February 27, 2001.  See 8 FAM 301.9 for guidance on INA 321.

8 FAM 301.10-5  INA 322

(CT:CITZ-37;   06-08-2020)

a. Pursuant to revised INA 322, a U.S. citizen parent or, if the U.S. citizen is deceased and it is within 5 years of such death, a U.S. citizen grandparent or other legal guardian, may submit an application for naturalization on behalf of a child born outside of the United States.

b. INA 322 is administered exclusively by U.S. Citizenship and Immigration Services (USCIS).  A person residing abroad seeking expeditious naturalization under INA 322 must apply to USCIS for a Certificate of Citizenship.

c.  USCIS will notify the applying parent (or grandparent or legal guardian) when the application for the Certificate of Citizenship is processed and an appointment is made for the parent to bring the child to the United States for the next phase of the process.

d. The parent should present the U.S. consular officer with the USCIS appointment letter.  On this basis, the consular officer may issue the child a B-2 visa (see 9 FAM 402.2-4(B)(11), "Adoptive Child Coming to United States for Acquisition of Citizenship" and 9 FAM 402.2-4(B)(7), "Children Seeking Expeditious Naturalization under INA 322."

e. If a Certificate of Citizenship is issued by USCIS, it should be presented when the applicant applies for a U.S. passport.  U.S. passports cannot be issued in INA 322 casesuntil the Certificate of Citizenship is issued.  This differs from the process of “automatic” acquisition under INA 320.

f.  A child adopted abroad by a U.S. citizen who does not acquire under INA 320 may be eligible for expeditious naturalization under INA 322.  Parents should follow the above procedure to apply for a Certificate of Citizenship.

g. USCIS will issue a Certificate of Citizenship upon proof, to the satisfaction of USCIS, that the following conditions have been fulfilled:

(1)  At least one parent is a citizen of the United States, whether by birth or naturalization;

(2)  The United States citizen parent has, or if deceased, had been physically present in the United States or its outlying possessions for a period or periods totaling not less than 5 years, at least 2 of which were after attaining the age of 14; or the U.S. citizen parent has a citizen parent (the grandparent of the child) who has or had been physically present in the United States or its outlying possessions for a period or periods totaling not less than 5 years, at least 2 of which were after attaining age 14;

NOTE:  In order to take advantage of the physical presence of the citizen grandparent for INA 322 purposes, the U.S. citizen grandparent need not be alive.  The grandparent's physical presence may be considered if the grandparent had met the physical presence requirement prior to death.  (USCIS Memorandum HQ 70/34.2-P April 17, 2003.)

(3)  The child is under the age of 18; and

(4)  The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent, is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.  Such children are issued B-2 visas.  (See 9 FAM 402.2-4(B)(7) for  children seeking expeditious naturalization under INA 322.)

h. Upon approval of the application for a Certificate of Citizenship (which may be filed with USCIS from abroad) and, if not waived because of the child’s age, upon taking and subscribing before an officer of USCIS within the United States the oath of allegiance required by the INA of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by USCIS with a Certificate of Citizenship.

i.  INA 322 pertains to children as defined under INA 101(c)(1) including those born out of wedlock to a U.S. citizen parent; and per USCIS guidance, it also pertains to children who meet the requirements applicable to an adopted child under INA 101(b)(1).  (USCIS Memorandum HQ 70/34.2-P September 26, 2003.).

j.  Upon issuance of a Certificate of Citizenship, such a child is eligible to apply for a U.S. passport.

UNCLASSIFIED (U)