By Attorney Robert L. Reeves and Lorena Larios Shah
U.S. immigration laws are structured so as to provide benefits to children born abroad to U.S. citizens. Whether the parent is a citizen by birth or naturalization, the child can acquire U.S. citizenship. The laws that allow children to derive or acquire citizenship vary depending on the particular circumstances of each family. It is extremely important for parents to consult with an immigration expert to determine whether his/her child is eligible.
Child Citizenship Act 2000
The Child Citizenship Act of 2000 allows children to obtain citizenship under certain conditions. This law is not retroactive and applies to cases where acquisition took place on or after February 27, 2001. Under this law, a child derives U.S. citizenship as long as the following are established.
1. One parent is a citizen by birth or naturalization;
2. The child is under 18 years of age;
3. The child is residing in the U.S. pursuant to a lawful admission for permanent residency; and,
4. The child is residing in the U.S. in the legal and physical custody of the citizen parent.
This law extends to adopted children. However, this law does not apply to step-children of U.S citizens.
Acquisition of U.S. Citizenship at Birth
A child born outside of the U.S. to one or two U.S. citizen parents may acquire U.S. citizenship at birth. This child becomes a U.S. citizen at the moment of birth and a certificate of citizenship is not needed. To determine if a child has acquired citizenship at birth an immigration expert must consider several factors such as: the child’s date of birth, parent(s) place and date of birth, parent(s) place of residence, and whether the child was born in or out of wedlock, among others. This information is essential because the laws which allow acquisition of citizenship require the U.S. citizen parent to reside or be physically present in the U.S. for certain time periods prior to the birth of the child so that he or she can “transmit” citizenship to the child. This transmission requirement is determined by the law in effect at the time of the child’s birth.
Children born out of wedlock can also acquire U.S. citizenship at birth if certain additional requirements are established. For instance, if the child was born to a U.S. citizen father, paternity must be established. In addition, evidence must show that the child was legitimated according to the laws of legitimation of the father’s or child’s residence or domicile before the child reaches 21 and in some cases before the child turns 18 years of age. Evidence of child support in writing and evidence regarding a father/son relationship may also be required.
This law may also apply to children whose parents are deceased. Posthumous children acquire at birth the same rights to citizenship to which they would have been entitled had the deceased U.S. citizen/national parent been alive at the time of their birth.
Expedited Naturalization of Children
Children can also obtain citizenship by Naturalization. This requires that at least one parent be a U.S. citizen by birth or naturalization at the time of undergoing the citizenship process. The parent must have been physically present in the U.S. for at least five years, at least two after the age of 14. The physical presence requirement is also met if the citizen parent has a citizen parent of their own who has been physically present in the U.S. for five years, at least two years after the age of 14. The child must also be temporarily present in the U.S. pursuant to a lawful admission and maintaining lawful status, for instance as a tourist.