Naturalization Under Section 322
Section 322 of the Immigration and Naturalization Act (INA) provides for facilitated naturalization of non-citizen minor children of (some) Americans living abroad.
As of 30 October 2011, all requests for naturalization under Section 322 should be sent to the USCIS "lockbox" in Phoenix Arizona, as explained in the N-600K instructions. The actual interview and swearing in will take place in another designated USCIS field office in the US. You can specify the office of your choice when you file N-600K.
Note that naturalization under Section 322 is for children whose American parent OR American grandparent has at least five years of US physical presence time as explained below. If you or the child's grandparent do/does not have the required US presence time, there is another procedure available to you for having your child naturalized as a US citizen explained elsewhere on this ACA, Inc. website.
Understanding the Basics
- Most Americans who have children while abroad are able to transmit their US citizenship to their offspring at birth. They only need to obtain a "Consular Report of Birth Abroad" (form FS 240) at their nearest American embassy or consulate. (Contact the consulate in advance or check their website for details on which documents have to be provided and how to arrange an appointment.)
- However, for an American with a non-citizen spouse to transmit citizenship to children born abroad, the citizen parent must have been physically present in the US a certain number of years prior to the birth of the child in question. For children born after 14 November 1986, the American parent must have been physically present five years in the US, at least two of which were after the age of 14.
- The Section 322 naturalization process was created to help Americans with non-citizen spouses, who have not themselves lived the amount of time in the US required by law for citizenship transmission to their children. Section 322 provides for naturalization of the minor child (under age 18) via US Citizenship and Immigration Services USCIS. Simpler in principle than for most immigrants; it is not a process for transmission of citizenship, but only for naturalization.
General Background Information on the New Law
- What is Section 322 ?
Section 322 of the Immigration and Nationality Act grants expeditious naturalization to the children of US citizens. It was amended by Public Law 103-416 on October 25, 1994 (and modified in form, but not in substance, by the "Child Citizenship Act of 2000") to enable Americans abroad to obtain US citizenship for their children, not otherwise eligible to be citizens, through a special naturalization procedure which does not require that they immigrate to the United States. This new amendment does not change the existing rule for transmitting citizenship at birth to children born abroad. Rather, it opens an additional "entry way" for children of Americans to receive Certificates of Citizenship if they fulfill the requirements set forth (see below).
- What government agency administers this law?
Naturalizations are under the authority of the US Attorney General and are administered by the US Citizenship and Immigration Services (USCIS). Section 322 is not administered by the Department of State nor through its consulates around the world. Consular posts do not have Section 322 application packets, nor do they process application forms. Applications using Form N-600K must be filed with the USCIS in the USA.
- Who is eligible?
A child living abroad is eligible to become a US citizen under Section 322 if s/he
- is under the age of 18;
- is the natural born or adopted child of a US citizen parent; and
- has an American parent OR grandparent who has spent five years in the US, at least two of which were after the parent/grandparent was 14 years of age.
Public Law 107-273 recently amended section 322(a) of the Immigration and Nationality Act (8 U.S.C. 1433(a)), making available the facilitated naturalization procedure for children of American citizens abroad who do not meet the residence requirements for transmitting citizenship to those minors whose citizen-parent is no longer living. If the citizen-parent is deceased, an application for naturalization can be made by a citizen-grandparent or a citizen-legal guardian.
- What is involved?
The American parent fills out the USCIS application form N-600K and must include documents proving that either the parent or grandparent of the child spent the requisite time in the US. The forms and supporting documents are mailed to the USCIS District Office "lockbox" in Phoenix Arizona which is supposed to review them within 60 days. Applicants abroad are notified of preliminary approval by USCIS. An appointment is then set up, and the American parent and child/children travel to a designated District Office in the United States (not in Phoenix) to finalize the process on the day of the appointment. Depending on the nationality and/or present country of residence of the child, either a visa waiver, visitor visa or other visa will be needed to enter the USA prior to the appointment. This can be checked by contacting a local US consulate, explaining that entry into the USA is for the purpose of appearing in the USCIS district office for naturalization under Section 322.
It is anticipated that in most cases the oath will be administered and the Certificate of Citizenship will be issued during the pre-scheduled appointment at the designated District Office. Once the Certificate is in hand, the child should obtain a US passport (going through a local US Passport Office) before leaving the US. In some cases a passport can be subsequently obtained in the child's normal country of residence. It is also advisable to obtain a Social Security number for the child. This can be done at any US consulate in your normal country of residence.
- How to obtain application forms: Access the US Government website at www.uscis.gov/n-600k
Carefully read the instructions for filling out the form and for payment of the fees. A new edition of this form (N-600K) has just been issued (2016), but you may still file using the 2013 edition. Answer each item as best as possible. Be prepared to provide supporting documentation especially for residence times in the US. If necessary, add a cover letter explaining special situations. The application should be filed at the USCIS "lockbox" in Phoenix Arizona. Be prepared to wait several months (or even a year) for a final decision. If the child is only a few months away from his/her 18th birthday, it is important to mention this fact because the swearing in at a USCIS office in the US must absolutely take place before the child's 18th birthday.
Other points to bear in mind:
- The Oath.
Part of finalizing the naturalization process involves taking an oath of renunciation (of previous nationality) and allegiance (to the US) by children who are judged to be able to understand its meaning. The consequences, if any, to the nationality of a minor child who may take this oath should be evaluated in light of the laws of the country of which he or she is currently a citizen. Parents are advised to verify this issue for themselves regarding the laws of the country of which the child is a citizen. It appears that children who do not speak English or are too young to understand will not be asked to take the oath.
- The 18th birthday cut-off.
The entire naturalization procedure must be finished prior to the child's 18th birthday; children who reach their 18th birthdays without having already completed the USCIS naturalization procedure LOSE THEIR ELIGIBILITY to become US citizens under Section 322, even if the application has been submitted but not fully adjudicated and even if the delay is the fault of the USCIS. Parents of children who are eligible and who are already 17 years old should file their Form N-600K with an accompanying letter immediately at the "lockbox" address. The USCIS is making an effort to expedite the process for children in this situation.
- Use the right form.
The USCIS has adopted a special form for the application of Section 322. It is Form N-600K, applicable for adopted children and for biological offspring of Americans abroad. Do not confuse with form N-600 which is for a completely different procedure (certification of citizenship for somebody who is already a US citizen).
Filling out and filing the application itself
Things to remember when completing the applications:
- Form N-600K is specifically designed for the naturalization procedure, not like the regular N-600 form which is only a request for a certificate of citizenship for persons who are already US citizens.
- Do not send any original documents in the application itself. Send only photocopies and bring the originals with you to the interview. It is also a good idea to make additional copies of everything you submit in case the file is lost and you need to re-submit it. It is highly recommended to send all correspondence to USCIS offices via registered, return-receipt mail.
- All items on the form must be filled in. For those items which do not apply, write "N/A" (for "Not Applicable") rather than leave the item blank. For example, a child applying from abroad under Section 322 will not have an Alien Registration number (A number or "Green Card" number). Simply mark "N/A" for that item and go on. [Note, however, regarding the item on entry/arrival, pencil in that you will provide this information after arriving in the US for the interview at the USCIS District Office.]
- The fact that the American grandparent (if his or her fulfillment of the physical presence requirement is the basis for the application) may be deceased does not adversely affect the claim as long as that grandparent's fulfillment of the requirement can be documented.
- The forms must be signed by the citizen-parent, not the grandparent. The law specifies that it is the American parent or US legal guardian who must apply for the child's naturalization and accompany the child to the US for the final interview and oath. (Grandparents may be present for the interview if they wish.)
- If, at the time of applying, the US parent of the child to be naturalized has spent five years in the United States with two after the age of 14, the US parent him/herself fulfills the requirement of the law and does not need to prove that the child's American grandparent spent the five years in the US. Some of the materials sent out by the USCIS may fail to mention this possibility and focus only on the grandparent's fulfillment of the five year residency in the US. Parents who qualify on their own should write a separate letter explaining this fact. They should attach copies of documents proving their own five years in the US. Note that these five years can have taken place before or after the child's birth.
- The parent's or grandparent's five years in the US need not be limited to when the parent/grandparent was a US citizen. According to the USCIS Policy Manual: "A parent’s physical presence is calculated in the aggregate and includes time accrued in the United States during periods when the parent was not a U.S. citizen."
- Regarding proof of physical presence generally, applicants should feel very free to write their stories in an accompanying letter and attach as much as they can to back up what is asserted. Provide copies of documents which tend to actually show the person was in the US at the time claimed, for example, school and/or college records, including year-to-year transcripts. For ideas about proofs, see the instructions accompanying form N-600K, which states, in substance, that if no documentation is available, you should submit notarized affidavits of at least two people who were living at the time and who have personal knowledge of what you are attempting to prove.
- If the USCIS does not approve the application for your child's citizenship under Section 322 after filing Form N-600K, you have the possibility of filing an appeal or motion to reopen or reconsider a decision under the immigration laws within 30 days of the adverse decision. This is done by filing Form I-290B "Notice of Appeal or Motion" available here: http://www.uscis.gov/i-290b As of January 1, 2016, appeals for decisions involving Section 322 should be sent to the Chicago "Lockbox" as explained on the USCIS webpage. Note that filing such an appeal involves writing a "brief" in your own words explaining why you think the decision should be reconsidered and is best done with the help of a competent US immigration lawyer.
Your Feedback is Essential
Many of the caveats inserted in this overview are the result of actual experiences of families seeking "facilitated" naturalization for their children under Section 322. Please contribute to this growing fund of information by letting ACA, Inc. know what you learn along the way, good and bad. Thank you. Please address queries and comments to:
American Citizens Abroad, (ACA, Inc.)
11140 Rockville Pike, Suite 100-162
Rockville, MD 20852
Model Cover sheet
- Notice to the USCIS Office receiving this application:
- This application is being submitted in accordance with Section 322 of the Immigration and Nationality Act as amended by Section 102 of P.L. 103-416, enacted on October 25, 1994, and now grants Americans abroad the right to obtain Certificates of Citizenship for their minor children residing outside the United States. No alien registration number is requirerd.
End of model cover sheet
This ACA page was updated in October 2016