USCIS Issues Policy Guidance and Clarifications on Children’s Acquisition of Citizenship

In a recent update from the United States Citizenship and Immigration Services (USCIS), new clarifications were provided regarding the acquisition of U.S. citizenship by children born abroad. To clarify, acquisition of citizenship is the capacity that individuals born abroad must achieve U.S. citizenship through at least one parent that holds U.S. citizenship.

This refers to a child gaining citizenship at or after birth, and if applicants are under 18 years of age. Earlier acquisition rules from 1984 required that if both parents were citizenship holders, at least one spent time in the United States prior to the child’s birth. On the other hand, if only one of the child’s parents was a U.S. citizen, they would have to live in the United States for a total of 10 years, with five of those years being after the age of 14. There have been many updates and clarifications since then, but one very important change of acquisition rules came in January 2023 when conditions for unwed mothers with U.S. citizenship were softened following the Supreme Court Case Sessions v. Morales-Santana (2017).

There are seven clarification points all offering further understanding to different ways and processes that a parent with U.S. citizenship may help their child through the citizenship acquisition. These clarifications come from updates to altered rules from Supreme Court cases or those that were simply changed. Please refer to the sections below for specific discussions of each point mentioned by the USCIS.

“Affirms that applicants who already filed an application for a Certificate of Citizenship and were denied, but become eligible following a change in USCIS policy, may file a motion to reopen the prior USCIS denial of their application."
If an application has been denied in the past, the denied applicant could reapply if there was a change in the USCIS’ policy that made the applicant eligible for citizenship.
“Clarifies that a U.S. citizen parent may meet the requirement of physical presence in the United States (or outlying possession) before the child’s birth while in any immigration status, or no status.
A parent with U.S. citizenship can meet the physical presence requirement before the child’s birth while in any immigration status, or even with no status at all. So, while a parent still needs to attain citizenship to pass it to their child, the time that they might’ve been inside of the United States before getting their citizenship --whether they were undocumented, on a visa, or any other immigrant status-- can count towards the physical presence requirement.
“Clarifies that in cases where a child is born out of wedlock to two U.S. citizen parents and cannot acquire U.S. citizenship from the father, the mother meets the requirement by demonstrating 1 year of continuous physical presence in the United States or one of its outlying possessions before the child’s birth.”
If a child born of wedlock and cannot derive citizenship from their father, then they can derive it from their mother if their mother satisfies one year of continuous physical presence. Prior to the clarification made by USCIS in 2023, a child was able to receive citizenship through their father more easily than through their mother. The rule for both the mother and father of a child was that the child could only acquire citizenship if its U.S. citizen parent had been in the U.S. or its territories for a total of five years, and at least two of those years had to be after the age of 14. However, there was a much stricter application to mothers in comparison to fathers. The process was more administratively burdensome for mothers due to the gender and cultural bias in the application of the rule. So, despite the requirements being identical on paper, when looking at historical records, testimony, and legal commentary, fathers had a much easier experience after establishing paternity while mothers were forced to undergo intense scrutiny in proving their physical presence.

USCIS updated these rules on January 20, 2023, and simplified the requirements for an unwed mother. If a child could not receive citizenship from their father, whether because of administrative issues or the child does not have a father, rather than prove a mother’s physical presence for five years, she only had to fulfill a physical presence of one year. Capable fathers are still required to prove five years of physical presence. The most recent USCIS clarification, made on July 18, 2024, affirmed this rule and emphasized that a child born out of wedlock could still receive citizenship from their mother at this lesser scrutiny only if the father could not provide it.
“Affirms that, for purposes of acquiring citizenship at birth, USCIS requires that a parent must be recognized as a legal parent of the child by the relevant jurisdiction at the time of the child’s birth.”
The parent of the child acquiring citizenship must be its legal parent at the time of the child’s birth.
“Clarifies that a child acquires citizenship under statutes requiring all conditions to be met while the child is under 18 years of age if the last condition was satisfied on the day of the child’s 18th birthday. Similarly, a child is eligible to obtain citizenship under INA 322 if USCIS approves the application and the child takes the oath (if required) on the day of the child’s 18th birthday.”
When a petition is filed that is contingent on the child being under 18 years old, but the applicant only fulfills the last condition on their 18th birthday or they take their naturalization oath on their 18th birthday, they are still eligible for citizenship. This clarification is a reminder that there is some leeway for some who may still be able to derive citizenship via their parents, even on the day the child reaches 18 years old.
“Confirms that USCIS accepts a valid and unexpired U.S. passport or a Consular Report of Birth Abroad (CRBA) as evidence of U.S. citizenship. However, USCIS also determines whether the applicant properly acquired U.S. citizenship and if necessary, may request that the Department of State revoke the U.S. passport or cancel the CRBA before USCIS adjudicates an application for a Certificate of Citizenship.”
USCIS will accept a valid and current U.S. passport of Consular Report of Birth Aborad (CRBA) as evidence of U.S. citizenship. CRBA is an official document issued by the U.S. Department of State that serves as proof that a child was born outside of the United States to parents with United States citizenship. However, the point goes on to say that USCIS has the authority to request that the Department of State revoke the applicant’s passport or cancel the CRBA before an application for a Certificate of Citizenship is adjudicated, should it be deemed necessary to do so.
“Clarifies processes when USCIS, in addition to an applicant’s claim of U.S. citizenship, adjudicates claims to U.S. citizenship for an applicant’s parents or grandparents (sometimes called “nested claims of U.S. citizenship”). When adjudicating applications for a Certificate of Citizenship, if an applicant’s parent or parents’ U.S. citizenship is unknown or unclear, the officer must determine the applicant’s parents’ (and, if necessary, grandparents’) U.S. citizenship status before adjudicating the applicant’s citizenship claim.”
If an applicant is relying on the citizenship of a parent or grandparent whose own citizenship status is unclear, USCIS will first determine a parent or grandparent’s status before moving on with the child’s claim.
“Clarifies that for purposes of an application for naturalization filed under the provision for children of a U.S. citizen who subjected them to battery or extreme cruelty, a stepchild’s relationship with the U.S. citizen stepparent does not need to continue to exist at the time of the application for naturalization.”
If a child was abused by a stepparent with U.S. citizenship, then they can still use that stepparent’s citizenship status to apply for their own naturalization. The abuse can occur inside of the United States or abroad, provided that the abuser was a U.S. citizen, the applicant is still eligible for naturalization. Should the stepchild sever their relationship with their American stepparent due to abuse, if there is a proven relationship between the U.S. citizen stepparent and stepchild with records of the abuse, the stepchild may continue to use their stepparent’s status for naturalization.

These recent USCIS clarifications introduce notable changes that enhance fairness and clarity in the naturalization process. These updates address a range of naturalization issues that affect both children of U.S. citizens and parents with U.S. citizenships who are finding direct ways to support their children. The points above reflect USCIS’s commitment to improve procedural equity and ensuring that children entitled to U.S. citizenship receive fair treatment. These changes recognize the diverse circumstances under which U.S. citizenship can be transmitted and ensure that children receive the consideration they deserve. These adjustments come at a time where navigating intricate family dynamics over international lines are critical, and providing a clearer pathway that removes outdated barriers that previously hindered legal citizenship eligibility is indispensable. USCIS continuously updates and clarifies their procedures with hard-to-understand pronouncements. This is why we encourage our readers to check this space for easily understandable immigration news and updates.

Pasricha & Patel’s Immigration Department has extensive experience in handling business and personal immigration matters. Our team is happy to speak with you on your specific issue.