USCIS to Implement Policy Change Impacting the Acquisition of Citizenship for Children Born Overseas

On August 28, 2019, USCIS released a new policy memorandum, binding on all agency employees and adjudications, changing the way USCIS defines the residence and physical presence requirements in connection with the transmission of U.S. citizenship to children born overseas. This policy becomes effective on October 29, 2019 and will apply to all children born on or after that date. More controversial, however, is an abrupt shift in policy resulting in USCIS no longer considering the children of U.S. government employees and U.S. armed forces members residing outside of the U.S. as "residing in the U.S." for purposes of acquiring citizenship. Previously, it was longstanding USCIS policy to deem such persons as "residing in the U.S." in connection with applications for citizenship based on the fact that the U.S. citizen parents are physically outside of the U.S. precisely because they are serving our country in a governmental or military capacity and, but for such service, would otherwise likely be in the country.

For background, persons born in the United States are U.S. citizens by virtue of the U.S. Constitution, Amendment XIV. For all other individuals, the Immigration and Nationality Act (INA) determines who may acquire U.S. citizenship and the conditions they must satisfy. There are several statutory provisions in the INA that require applicants for citizenship or their U.S. citizen parents to "reside" or to have had a "residence" in a particular location as a basis for qualification. The term "residence" here means a person's principal actual dwelling place in fact, without regard to intent (i.e., are you actually primarily living here). This new policy purports to clarify that temporary visits to the U.S. do not establish U.S. residence and elucidates on the distinction between "residence" and "physical presence." The laws surrounding the acquisition of citizenship are numerous and circumstance-specific so it is important to consult with an experienced immigration attorney if you have such a case.

Additionally, USCIS's abrupt shift in policy with respect to the children of U.S. government employees and armed forces members stationed overseas is being criticized for making the process more complicated than it has been prior. The result is that children born overseas to some American parents serving in the military or working for the federal government may no longer automatically claim U.S. citizenship if their parents had lived in the United States for less than five years (including for two years after they turned 14 years old). Instead, those parents must undertake a lengthy process to apply for citizenship on behalf of their children before they turn 18 years old. In the past, USCIS created exceptions for this class of persons on the basis that they are only residing outside of the U.S. because they are working on behalf of the United States, in that they considered these children born and living overseas as "residing" in the U.S. for the purposes of acquiring citizenship. This exception will no longer be the governing policy.

There are still avenues to obtaining citizenship available to the affected individuals, but critics are decrying the additional hurdles put up and the message it sends to families serving the U.S. government overseas. Always consult an immigration attorney when dealing with complicated legal analysis, such as the foregoing.