USCIS Policy Manual Update (Citizenship)

www.uscis.gov ^ | 08.28.2019 | uscis

[rxsid]

U.S. Citizenship and Immigration Services (USCIS) issues policy guidance on “residence” requirements for acquiring citizenship

Introduction

Our latest update to the USCIS Policy Manual defines “residence” as it relates to citizenship for children of certain U.S. government employees and members of the U.S. armed forces who are employed or stationed outside the United States, to conform with the definition of residence in the Immigration and Nationality Act (INA). This guidance rescinds previously established USCIS policy, which stated that certain children who were living outside the United States were considered “residing in” the United States.

As a result, it changes the process that parents of such children must follow to obtain a Certificate of Citizenship for their children. Under the previous policy, parents of those children could file either Form N-600, Application for Certificate of Citizenship, or Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, on behalf of their children. As of Oct. 29, 2019, these parents must file Form N-600K to obtain U.S. citizenship for any child who did not acquire citizenship at birth or while residing in the United States. Therefore, we will apply current guidance to all applications filed before Oct. 29, 2019.

Policy Update at a Glance

The updates to the USCIS Policy Manual, Volume 12, Citizenship and Naturalization, and Part H, Children of U.S. Citizens:

• Clarify that temporary visits to the U.S. do not establish U.S. residence;
• Explain the distinction between residence and physical presence in the United States; and
• Explain that USCIS no longer considers children who are living abroad with a parent who is a U.S. government employee or U.S. service member as “residing in the United States” for purposes of acquiring citizenship under INA 320.

How Children Acquire Citizenship

U.S. laws allow children to acquire U.S. citizenship other than through birth in the United States. Children who were born outside of the United States to a U.S. citizen parent or parents may acquire U.S. citizenship at birth under INA 301 or 309. Children may also acquire citizenship after birth, but before the age of 18, through their U.S. citizen parent(s) under INA 320.

Policy Update Regarding Children of U.S. Government Employees or Service Members Employed or Stationed Abroad Who Were Born Outside the United States

Who This Policy Update Affects

This policy may affect children residing outside the United States who were born outside the United States to:

• Non-U.S. citizen parents and adopted by a U.S. citizen U.S. government employee or U.S. service member after their birth;
• Non-U.S. citizen parents, such as a lawful permanent resident U.S. government employee or U.S. service member who naturalized only after the child’s birth; or
• Two U.S. citizen government employee or U.S. service member parents who do not meet the residence or physical presence requirements to transmit citizenship to their child at birth (or one non-U.S. citizen parent and one U.S. citizen parent who does not meet these requirements). 

For more information on this policy update contact uscispolicymanual@uscis.dhs.gov. For case-specific inquiries, call the USCIS Contact Center.

Who This Policy Update Does Not Affect

This policy does not affect children born outside the United States who were citizens at birth or who have already acquired citizenship, including children who:

• Were born to two U.S. citizen parents, at least one of whom has had a residence in the United States or one of its outlying possessions before the child’s birth;
• Were born to married parents, one of whom is a U.S. citizen and one a foreign national, if the U.S. citizen parent was physically present in the U.S. or one of its outlying possessions for at least five years, at least two of which were after they turned 14 years old;
• Were born to unmarried parents, one of whom is a U.S. citizen and one a foreign national, if the U.S. citizen parent meets the requirements listed in INA 309;
• Are otherwise eligible to receive a Consular Report of Birth Abroad (CRBA) or a Certificate of Citizenship documenting U.S. citizenship acquired at birth; or
• Are residing in the United States in the legal and physical custody of their U.S. citizen parent after being lawfully admitted to the U.S. for permanent residence.

For more information, see Policy Manual, Volume 12, Part H, Children of U.S. Citizens, Chapter 3, United States Citizens at Birth (INA 301 and 309), or email uscispolicymanual@uscis.dhs.gov.

Reason for the Policy Update

We are updating this policy because it conflicts with the definition of “residence” in the INA and also with INA 322(d), which was enacted in 2008 after this policy was instituted, and refers to children who are residing abroad with members of the armed forces of the United States as “residing outside of the United States.” In addition, the previous guidance conflicts with Department of State guidance. Having conflicting policies can lead to inconsistent decisions on citizenship claims by USCIS and the Department of State and can cause confusion as to the date children of U.S. service members and government employees stationed abroad become U.S. citizens.

General Provisions for Eligibility

The table below serves as a quick reference guide to certain residence, physical presence, and overseas naturalization provisions for children of U.S. citizen service members. A person eligible under INA 320 would file Form N-600, and a parent filing for a child under 18 residing outside of the United States would file Form N-600K.

Residence, Lawful Admission, and Overseas Naturalization for Children of Members of the U.S. Armed Forces

INA Section	Place of Residence	Lawful Admission	Residence Requirement	Automatic Citizenship or Overseas Naturalization
320	United States	The child must be lawfully admitted for permanent residence.	The child must reside with U.S. citizen parent in the United States.	The child may acquire automatic citizenship (must take the Oath of Allegiance in the United States to obtain a Certificate of Citizenship).
322(d)	Outside the United States	Lawful admission is not required for the child.	The child must reside with U.S. citizen parent serving abroad.	The parent must apply for citizenship, but the child may complete the entire naturalization process from outside the United States if they are authorized to accompany their U.S. citizen parent who is on official military orders (the child must take the Oath of Allegiance before their 18th birthday, unless we waive this requirement during an interview).

When a Parent Should Not File Form N-600K

U.S. government employees and U.S. service members who are employed or stationed outside the United States should not file Form N-600K if:

• The child has already acquired citizenship under INA sections 301, 309, or 320, or on or before Feb. 27, 2001, under the repealed INA section 321;
• They are a U.S. citizen whose only relationship to the child is as a stepparent;
• They are not the U.S. citizen parent of the child, unless that parent has died; or
• The child is over the age of 18.

The chart below provides additional examples of when parents should or should not file Form N-600K.

If the child is residing outside the United States and:	Then:
The child is born to two U.S. citizen parents on a military base or at an off-base hospital outside of the United States	The parents can apply for a Consular Report of Birth Abroad (CRBA) with the Department of State or a Certificate of Citizenship from USCIS using Form N-600. At least one parent must prove residence in the U.S. before the child’s birth. The parent should not file Form N-600K. See the Department of State Birth of U.S. Citizens Abroad webpage for more information
The child is born to two lawful permanent resident (LPR) parents on a military base or at an off-base hospital outside of the United States	At least one parent must naturalize before the child is eligible to acquire citizenship. The U.S. citizen parent must establish five years of physical presence in the United States (at least two of which were after they turned 14 years old) before the parent may file an N-600K on the child’s behalf.   However, in the case of a child of a U.S. service member who is residing abroad on their parent’s official military orders, the parent can count any period of time residing abroad on official orders as physical presence in the United States. See our website for more information.
The child is born in wedlock to a U.S. citizen parent and an LPR parent on a military base or at an off-base hospital outside of the United States on or after Nov. 14, 1986	The U.S. citizen parent must prove physical presence in the United States for a period of not less than five years (at least two of which were after they turned 14 years old). However, the U.S. citizen parent can count any of the following periods as physical presence in the United States: Honorable service in the U.S. armed forces; Employment with the U.S. government or certain international organizations; or Being physically present abroad as the dependent unmarried son or daughter of: A service member honorably serving in the U.S. military; A U.S. government employee; or An employee of a qualifying international organization. If the parent meets the physical presence requirement, they can apply for a Consular Report of Birth Abroad (CRBA) with the Department of State or a Certificate of Citizenship from USCIS using Form N-600. The parent should not file Form N-600K.
The child was born to an LPR parent who then naturalizes after the birth of the child	The U.S. citizen parent must establish five years of physical presence in the United States (at least two of which were after they turned 14 years old) before they may file an N-600K on the child’s behalf. However, in the case of a child of a U.S. service member who is residing abroad with them on their official orders, the parent can count any period of time residing abroad on official orders as physical presence in the United States.
The child is living on a military base outside of the United States when their parent(s) naturalize on that military base	The U.S. citizen parent must establish five years of physical presence in the United States (at least two of which were after they turned 14 years old) before the parent may file an N-600K on the child’s behalf. However, in the case of a child of a U.S. service member who is residing abroad with them on their official orders, the parent can count any period of time residing abroad on official orders as physical presence in the United States. See our website for more information.
The child was born outside of the United States; The child later becomes an LPR and resides in the United States in the legal and physical custody of their parents when one of them naturalizes in the United States; and The child subsequently resides outside of the United States with the parents	The child became a U.S. citizen upon the parent’s naturalization. The family may file an N-600 for the child, but must return to the United States for an interview to obtain the Certificate of Citizenship.  The family may also apply for a passport for the child from the Department of State from outside of the United States. The parent should not file Form N-600K.
The child is the stepchild of the U.S. citizen service member and a biological  child of an LPR parent	The U.S. citizen service member must adopt the child before the child could qualify for citizenship through the stepparent. Or, once the LPR parent naturalizes and establishes five years of physical presence (at least two of which were after they turned 14 years old), they can file Form N-600K for the child. See our website for more information.

Important Facts to Know

• Military bases outside of the United States are not considered “in the United States” in relation to birthright citizenship. Therefore, the only way children born abroad can acquire citizenship at birth is through their parents.
• If you were a U.S. citizen when you gave birth to your child while outside the United States on military orders, your child is most likely a U.S. citizen. As long as you met certain physical presence or residence requirements before your child’s birth, this policy update does not affect you, and you can apply for a Consular Report of Birth Abroad (CRBA) for your child at a U.S. Consulate and/or a Certificate of Citizenship from USCIS using Form N-600.
• Military members stationed outside the United States who file a Form N-600K on behalf of their child will not need to travel to the United States to get a Certificate of Citizenship for their child.
• Stepchildren cannot acquire U.S. citizenship through a U.S. citizen stepparent. A stepchild is ineligible for citizenship or naturalization through the U.S. citizen stepparent, unless the stepchild is adopted and the adoption meets certain requirements (See Policy Manual Chapter 2, Definition of Child for Citizenship and Naturalization, Section C, Adopted Child).

[PraiseTheLord]

Have you seen this?

[rxsid]

"We also have to retroactively revoke all of the citizenship granted under false pretenses SINCE the 1960s."

Completely agree. That corrupting of the 14th Amendment MUST be overturned.

[rxsid]

""Should significantly reduce "birth tourism."

How? Since it applies to: "U.S. government employees and members of the U.S. armed forces who are employed or stationed outside the United States"

==============================

In red, above:

Policy Update at a Glance

The updates to the USCIS Policy Manual, Volume 12, Citizenship and Naturalization, and Part H, Children of U.S. Citizens:

Clarify that temporary visits to the U.S. do not establish U.S. residence;

[mlo]

"Clarify that temporary visits to the U.S. do not establish U.S. residence;"

It's still about children born outside the country. That sentence doesn't change that.

[mlo]

"neither parent a citizen bro"

Neither had to be if she was born in the US.

[billakay]

This will not affect birth tourism at all. That comes from the current flawed interpretation of the 14th amendment. This change refers to other, much less common situations.

[Yosemitest]

Read this article:

Birthright Citizenship: A Fundamental Misunderstanding of the 14th Amendment

What’s the citizenship status of the children of illegal aliens ?
That question has spurred quite a debate over the 14th Amendment lately, with the news that several states—
including Pennsylvania, Arizona, Oklahoma, Georgia, and South Carolina
— may launch efforts to deny automatic citizenship to such children.

Critics claim that anyone born in the United States is automatically a U.S. citizen, even if their parents are here illegally.
But that ignores the text and legislative history of the 14th Amendment, which was ratified in 1868 to extend citizenship to freed slaves and their children.

The 14th Amendment doesn’t say that all persons born in the U.S. are citizens.
It says that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” are citizens.
That second, critical, conditional phrase is conveniently ignored or misinterpreted by advocates of “birthright” citizenship.

Critics erroneously believe that anyone present in the United States has “subjected” himself “to the jurisdiction” of the United States, which would extend citizenship to the children of tourists, diplomats, and illegal aliens alike.

But that is not what that qualifying phrase means.
Its original meaning refers to the political allegiance of an individual and the jurisdiction that a foreign government has over that individual.

The fact that a tourist or illegal alien is subject to our laws and our courts if they violate our laws does not place them within the political “jurisdiction” of the United States as that phrase was defined by the framers of the 14th Amendment.

This amendment’s language was derived from the 1866 Civil Rights Act, which provided that “[a]ll persons born in the United States, and not subject to any foreign power” would be considered citizens.

Sen. Lyman Trumbull, a key figure in the adoption of the 14th Amendment, said that “subject to the jurisdiction” of the U.S. included not owing allegiance to any other country.

As John Eastman, former dean of the Chapman School of Law, has said, many do not seem to understand “the distinction between partial, territorial jurisdiction,
which subjects all who are present within the territory of a sovereign to the jurisdiction of that sovereign’s laws,
and complete political jurisdiction,
which requires allegiance to the sovereign as well.”

In the famous Slaughter-House cases of 1872, the Supreme Court stated that this qualifying phrase was intended to exclude “children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”
This was confirmed in 1884 in another case, Elk vs. Wilkins, when citizenship was denied to an American Indian because he “owed immediate allegiance to” his tribe and not the United States.

American Indians and their children did not become citizens until Congress passed the Indian Citizenship Act of 1924.
There would have been no need to pass such legislation if the 14th Amendment extended citizenship to every person born in America, no matter what the circumstances of their birth, and no matter who their parents are.

Even in U.S. v. Wong Kim Ark, the 1898 case most often cited by “birthright” supporters due to its overbroad language, the court only held that a child born of lawful, permanent residents was a U.S. citizen.
That is a far cry from saying that a child born of individuals who are here illegally must be considered a U.S. citizen.

Of course, the judges in that case were strongly influenced by the fact that there were discriminatory laws in place at that time that restricted Chinese immigration, a situation that does not exist today.

The court’s interpretation of the 14th Amendment as extending to the children of legal, noncitizens was incorrect, according to the text and legislative history of the amendment.
But even under that holding, citizenship was not extended to the children of illegal aliens— only permanent, legal residents.

It is just plain wrong to claim that the children born of parents temporarily in the country as students or tourists are automatically U.S. citizens:
They do not meet the 14th Amendment’s jurisdictional allegiance obligations.
They are, in fact, subject to the political jurisdiction (and allegiance) of the country of their parents.
The same applies to the children of illegal aliens because children born in the United States to foreign citizens are citizens of their parents’ home country.

Federal law offers them no help either.
U.S. immigration law (8 U.S.C. § 1401) simply repeats the language of the 14th Amendment, including the phrase “subject to the jurisdiction thereof.”

The State Department has erroneously interpreted that statute to provide passports to anyone born in the United States, regardless of whether their parents are here illegally and regardless of whether the applicant meets the requirement of being “subject to the jurisdiction” of the U.S.
Accordingly, birthright citizenship has been implemented by executive fiat, not because it is required by federal law or the Constitution.

We are only one of a very small number of countries that provides birthright citizenship, and we do so based not upon the requirements of federal law or the Constitution, but based upon an erroneous executive interpretation.
Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.

[Fightin Whitey]

Congress should clarify the law according to the original meaning of the 14th Amendment and reverse this practice.

Sure, give Schumer, Pelosi and the Squat Sqad a call.

I bet they'll get right on it.

[Yosemitest]

And they'll screw it up too.
Good thing it'll be Dead-on-Arrival in the Senate, and then there's the Presidential VETO .

[datricker]

You keep saying so but history has proven otherwise. We all get your point - sadly it just is not so, it might even be true but it isn’t so - Who we going to believe you or our lying eyes? Oh I know.

[FreedomPoster]

Left is going crazy attacking Trump over this regarding the need for service members to fill out INS paperwork to establish the citizenship of children born overseas.

[Lurkinanloomin]

http://www.art2superpac.com/issues.html

[rxsid]

Yup, your right. Seems I was conflating two different stories I was reading and was trying to fit a square peg in a round hole. Thanks.

Also noticed that my crappy copy/paste job from the .gov site source code didn't translate the url's either, so the links in the body of the text reference FR.

Well, keeping on the theme, perhaps this is a set up (i.e. "Clarify that temporary visits to the U.S. do not establish U.S. residence") to address the wrongs like birth tourism and anchor babies.
Otherwise, seems a bit strange that Trump would go after this group (that involves a citizen parent) and not the others (that involves foreign national, non citizen parent(s)).

[LucyT]

.

PING

USCIS Policy Manual Update (Citizenship)

Thanks, rxsid.

[bitt]

see #2 and #3

[Liz]

ping

[Oatka]

A comment from their Facebook page:

Ira Bletz What are you people doing? Telling families with critically I'll children they have 33 days to get out of the country? You're sending innocent children to their deaths. This is not the Americsn way. Shame on you!

Cry me a river. How many "critically ill" children do we have here, and how many were brought across the border for treatment at our expense?

[rxsid]

Exactly. Shame on them for disrespecting our national sovereignty and breaking our laws and then expecting that the taxpayers of this country be forced to pay for their medical expenses.

[mlo]

Don’t know where you got that analysis but it’s all wrong.

[Mr Rogers]

Sorry, he is. You are either a citizen by birth or by naturalization. voicereason was a citizen born. Every court agrees with me.

I strongly oppose birthright citizenship to people here illegally. But the situation voicereason describes is NBC. Vattel did not discuss NBC.