After spending an entire afternoon scouring U.S. citizenship law and obscure policy memorandums, I have concluded that the new USCIS Policy Alert issued August 28, 2019, which was touted by many media outlets as stripping citizenship from the children of U.S. military service members, does nothing of the sort.
This USCIS Policy Alert, among other things, modifies the agency’s interpretation of the words, “residing in the United States” in a provision of immigration law, INA § 320, that controls how a child born abroad automatically acquires U.S. citizenship AFTER birth.
For most U.S. citizen parents, their child born abroad is a U.S. citizen AT BIRTH due to other provisions of immigration law.
For example, under INA § 301(c), a child born abroad to two U.S. citizen parents is a U.S. citizen at birth so long as at least one of the parents “had a residence in the United States [...]” before that child was born. There is no length of residency requirement with this provision, just “residence” in the U.S. at some point in time before the child’s birth. Most children born abroad of two U.S. citizen parents meet the requirements of this provision. Only if neither U.S. citizen parent has ever resided in the U.S. would the child not also acquire U.S. citizenship at birth under INA § 301(c).
Another provision, INA § 301(g), provides for automatic acquisition of U.S. citizenship of a child born abroad to one U.S. citizen parent and one non-citizen parent. That child is a U.S. citizen at birth so long as the U.S. citizen parent was “physically present” in the U.S. for five years (with two of these years being after age 14) before the child was born. A U.S. citizen parent’s honorable service in the Armed Forces or employment with the U.S. government, if served abroad, can be counted towards the requirement of five years of physical presence in the U.S. Most children born abroad of one U.S. citizen parent will meet the requirements of this provision.
Most children born abroad to either one or two U.S. citizen parents are U.S citizens at birth, based on either INA § 301(c) or INA § 301(g). The children of U.S. citizen parents born abroad who do not acquire citizenship based on either INA § 301(c) or (g) have parents who have never lived in the U.S., have been physically present here less than five years in the U.S., or had five or more years of physical presence here but left the U.S. before age 16 and never came back.
For children of one or two U.S. citizen parents who cannot acquire U.S. citizenship at birth because their parents’ ties to the U.S. are too attenuated as judged by our laws, the fall-back provisions are INA § 320, automatic acquisition of citizenship after birth, and INA § 322, naturalization of a minor child residing abroad. Automatic acquisition of citizenship means that you are a U.S. citizen when all the factors have been met, regardless of whether you apply for a certificate of citizenship or not. Naturalization requires that an application be filed and approved, and an oath ceremony occur before that child becomes a U.S. citizen. Naturalization requires a parent to be pro-active in making sure the child gets U.S. citizenship. Some parents do not know, do not care enough, or simply cannot pull together the resources to naturalize their children. Given a choice, it’s preferable to get automatic citizenship rather than go through a naturalization process.
The factors required for a child born abroad to automatically acquire U.S. citizenship AFTER birth are:
1. Have at least one U.S. citizen parent;
2. Be under age 18;
3. Be a lawful permanent resident (a.k.a., becomes a green card holder); and
4. Be residing in the U.S. in the legal and physical custody of the U.S. citizen parent.
The USCIS Policy Alert changed the government’s interpretation of “residing in the U.S.” Whereas since 2004, USCIS had a policy of allowing service abroad in the military or as a U.S. government employee to count as “residing in the U.S.,” this interpretation is now ended. When I first read about this Policy Alert, it sounded like it affected the automatic acquisition of citizenship at birth, but it does not. Rather, it concerns the automatic acquisition of citizenship after birth, INA § 320, and citizenship under this provision is only acquired once ALL four factors are met.
The puzzling thing, to me, is who this change will actually affect. This is because the third requirement under INA § 320, that the child be a lawful permanent resident, makes the “residing in the U.S.” requirement virtually moot. In other words, if you are not already a lawful permanent resident, you cannot automatically acquire citizenship after birth. To illustrate, here are some scenarios where this policy change makes no difference:
- Children born abroad of two U.S. citizen parents, and at least one parent has resided in the U.S. before the child’s birth: these children are U.S. citizens per INA § 301(c);
- Children born abroad of one U.S. citizen parent, and that parent has lived at least five years in the U.S., two of those years being after age 14, before the child’s birth: these children are U.S. citizens per INA § 301(g);
- Children born abroad to a U.S. citizen parent unable to transmit citizenship, who have never lived in the U.S. and thus have never been a lawful permanent residents: these children are not U.S. citizens, as they do not meet two of the requirements of INA § 320; and
- Children born abroad to a U.S. citizen parent, who came to the U.S. to live and became lawful permanent residents while in the custody of the U.S. citizen parent, and then later the family moved abroad again, as happens frequently with military families and the families of U.S. government employees: these children are U.S. citizens per INA § 320.
I have only identified one scenario where this policy change makes a difference: where at least one parent and the child were lawful permanent residents, the family goes abroad as part of military or U.S. government service, and then a parent naturalizes to U.S. citizenship while serving abroad. At the moment one of her parents naturalizes, that child has three of the four factors under INA § 320, but cannot automatically acquire U.S. citizenship due to this policy change, as she is no longer considered “residing in the U.S.” even though the parent is serving the U.S. government in either a military or civilian capacity. This child would need to wait until the family returns to reside in the U.S. to become a citizen. For some families, this can be years. Leave in the U.S. is not considered “residing in the U.S.”
I do not know how often this comes up, but for these U.S. military and foreign service families, this policy change eliminates an existing beneficial interpretation of the law. I would want to know, what is the citizenship of the child, before she becomes a U.S. citizen either by acquisition or naturalization? Is she a citizen of the country of her birth? About 32 countries grant birthright citizenship (jus soli) (see also this link), without conditions, based on birth in that country. These countries include the USA, Canada, Mexico, and many other Central American, South American, and Caribbean countries. They do not include all European countries, including the United Kingdom, France, Germany, Italy, etc., nor Australia or New Zealand. They do not include Japan, China, India, South Korea, or Vietnam. They do not include most African countries.
If a child does not derive citizenship from one or both parents, and is not a citizen of her country of birth, then she is stateless. That is a big deal. A stateless person does not have a right to a passport. Without a passport or some other kind of travel document equivalent to a passport that person had no right to travel internationally. A stateless person is not claimed by any country or nation as a person to be protected from harm.
From an immigration lawyer’s perspective, it is better to make it easier for these children to become U.S. citizens sooner rather than later, and to reduce the administrative burdens on the process, rather than to increase them. One reason USCIS gave for this change is that the Department of State never adopted this interpretation, that is, never allowed service to the U.S. military or government abroad to be considered “residing in the U.S.,” and so this change makes USCIS policy consistent with Department of State policy. My response to that is we can choose to make it consistent in a way that helps our service members rather than potentially rendering their children stateless while they serve our country.
There are other reasons given, the most significant of which is that this policy interpretation is inconsistent with a change in U.S. immigration law affecting military families enacted in 2008. If this is the real stumbling block, then maybe we should amend the law to make it easier for the children of U.S. citizens serving abroad to claim citizenship sooner, and with fewer obstacles.
While this USCIS Policy Update does not strip away citizenship from the children of U.S. service members on active duty abroad, it does make life harder for some military families, and delays the acquisition of citizenship until the family returns Stateside. It is not necessary to make this change at this time. The law that this policy arguably conflicts with was enacted in 2008, and USCIS did not feel the need to address this potential conflict until now. This is a choice. And the result is increased hardship to some military and foreign service families.