Residency requirements for US citizenship

The US Citizenship and Immigration Service has recently announced ("USCIS Policy Alert" dated August 28, 2019) a new interpretation of what constitutes "US residency" when considering the US citizenship of certain children born or adopted abroad especially as applied to military families. Here are the facts concerning this new interpretation:

  • Children born in the USA are automatically US citizens, (except for children born to foreign diplomats on official business in the US). Nothing has changed concerning this.
  • Children born on US military bases abroad or inside US embassy compounds were never able to claim US citizenship merely because of birth inside such a base or compound. Their claim to citizenship was and is based on their parents' citizenship and previous US residence or presence, the same as for all civilian children abroad born to an American parent or parents. Nothing has changed concerning this.
  • Children born abroad to two American parents (military or civilian) married to each other are considered to be US citizens at birth if at least one of their parents “had a residence” in the USA before the birth. The interpretation of “had a residence” is often a subject of debate and has never been clearly defined. It is usually acquired by a continuous presence and activity in the USA such as attending college, working at a steady job or raising a family. Physical presence is not a determining factor for claiming "residence." The August 28, 2019, USCIS Policy Alert merely re-states current USCIS and State Department policy on this point, and (this is the new interpretation, effective October 29, 2019) applies the same rules to US military personnel. In other words, living on a US military base abroad does not, by itself, confer “US residency” on that person.
  • Children born abroad to one American parent (father or mother) and a foreigner (mother or father) can acquire US citizenship if the American parent has been physically present in the USA for an accumulated time of at least five years, at least two after age 14, but before the birth of the child. In this case it is actual “physical presence” that counts, not “residence” which is defined differently from “presence.” In fact, the “physical presence” can actually be outside the US in the case of US military or US diplomatic personnel (and their minor children living with them).
  • Children born abroad who are not able to claim citizenship because their parent or parents have not met the “residence” and/or “presence” requirements continue to have the possibility of being naturalized before their 18th birthday under two different procedures, either of which may be applicable, depending on the circumstances. These two procedures are:
    1. Naturalization under Section 320 (child immigration) which involves returning to the US with the child to take up “residence.” After having applied and been accepted for immigration, the child (born to or adopted by an American parent or parents) becomes a US citizen immediately upon arrival in the USA with his/her American parents. The August 28, 2019, USCIS Policy Alert specifies that living on a US military abroad does not constitute "US residency" for the purpose of conferring US citizenship on children born or adopted abroad.
    2. Naturalization under Section 322 which involves having the child be sworn in as a citizen at a USCIS Field Office in the US after having completed the application by filing Form N-600K invoking the parent's or grandparent's 5-year US presence. For civilians, the swearing in has to take place in the US where the child is present under a visitor visa or visa waiver. For US military personnel, the swearing in can take place at one of the four designated overseas military bases where naturalization of service members and their family members is possible. This is the only exception for military personnel. For all other questions of “presence” and “residence” the same rules apply to civilian, military and government personnel, as explained in the August 28, 2019, USCIS Policy Alert.

Adopted children

Foreign children adopted by American families (residing in the US or abroad) never became US citizens "automatically." They have to be naturalized using one or other of two possible procedures (as explained above). For families residing in the USA this would be naturalization under Section 320 which confers US citizenship on children arriving in the USA as immigrants. American families residing abroad (civilian, military or government) should request naturalization for adopted children under Section 322 which confers US citizenship at a special swearing in ceremony during a short visit to the USA after having completed and filed form N-600K.

The August 28, 2019, USCIS Policy Alert specifies that as of October 29, 2019, military families adopting children abroad have to file for naturalization under Section 322 using form N-600K and cannot evoke their presence on a US military base abroad as constituting "US residency." They are, however, allowed to have the swearing in be done at one of the four designated overseas military bases where naturalization of service members and their family members is possible.  They do not have to travel to the US for this. This is the only difference between military and civilian naturalization procedures for children born or adopted abroad.