Legal Blog

U.S. Citizenship for Children Through Birth, Acquisition or Derivation

Three Ways a Child Receives U.S. Citizenship

  1. Through birth. If the child was born in the United States or its territories;
  2. Through acquisition. If the child was born outside of the U.S. but acquires citizenship at birth through a U.S. citizen parent; or
  3. Through Derivation. If the child becomes a citizen before they turn 18 based on their U.S. citizen parent.

As the laws of acquiring U.S. citizenship at birth or through derivation continue to adjust over the years, much depends on what laws were in effect at the time of the child’s birth.

Current Requirements for Acquisition

  1. For a child with two U.S. citizen parents:
    1. Child is born after November 14, 1986, and
    2. One parent must have been present in the U.S. or its territories before the child was born;
  2. For a child with one U.S. citizen parent and one U.S. national parent:
    1. The citizen parent must have been present in the U.S or its territories for at least one continuous year prior to the child’s birth.
  3. For a child with one U.S. citizen parent:
    1. The parent must have been physically present in the U.S. for five years prior to the child’s birth. At least two of the five years must have been when the parent was at least 14 years old. However, if the child was born in a U.S. possession or territory the parent only needs to have been physically present in the U.S. for a least one year prior to the child’s birth; or
  4. For a child born out of wedlock to a U.S. citizen mother:
    1. The mother must have been physically present in the U.S. or its territories for one continuous year prior to the child’s birth.

Documentation of Child’s Birth Abroad

Form FS-240, a Consular Report of Birth Abroad (CRBA) of a U.S. citizen, officially certifies acquisition of citizenship for the child born abroad. It provides evidence of citizenship, similar to a U.S. passport or Certificate of Naturalization.

The parent(s) must complete the application, Form DS-2029, prior to the child’s 18th birthday.  In addition, the parent(s) must provide evidence of their physical presence in the U.S., evidence of their child’s birth and any documentation of marriage (if applicable).

Current requirements (Under the Child Citizen Act of 2000) for Derivation of Citizenship

  1. At least one parent is a U.S. citizen;
  2. The child is under 18 years old and is unmarried;
  3. The child is a lawful permanent resident; and
  4. The child is living in the United States in the custody of the citizen parent.

Adopted children who meet these conditions above are also eligible for citizenship, however stepchildren do not qualify.

A U.S. passport is the easiest and fastest way for proof of derivation of citizenship, however a Certificate of Citizenship is an alternative option. For a child to show proof of their status as a lawful permanent resident (LPR) they will have a permanent resident card (green card) or a I-551 stamp on their passport. This stamp shows they have entered the U.S. on an immigrant visa and/or was admitted as a LPR.

How to Get a Passport Under the Child Citizen Act of 2000

For a child to obtain a U.S. passport they must show:

  1. Proof of their relationship to the U.S. parent. (Evidence includes: birth certificate or adoption decree, proof of legal custody, school records, etc.);
  2. Foreign passport with I-551 stamp or permanent resident card;
  3. Proof of identity of U.S. citizen parent (Evidence includes: U.S. passport, Naturalization Certificate or U.S. Birth Certificate); and
  4. Passport application including fees and photos.

Although citizenship is automatic through derivation, the child may still lack proof of citizenship.  Unlike documentation for acquisition of citizenship, there is no deadline to apply for the documentation of derivation.

Certificate of Citizenship

A Certificate of Citizenship is provided to individuals who become citizens through acquisition, derivation or naturalization. This is done by filing a Form N-600 to the United States Citizenship and Immigration Services (USCIS) along with required supporting evidence and fees. Although interviews are not typical the USCIS may request one. If the application is approved there will be an oath of allegiance interview. This however, is not be required for those who are too young, disabled, or if an interview is not needed.

Naturalization

If a child does not qualify for acquisition or derivation of citizenship, they may still be eligible to have their parent apply for naturalization on their behalf. Citizenship will be granted by the USCIS after an approved Form N-600K, Application of Citizenship and Issuance of Certificate.

Current requirements (under the Child Citizenship Act of 2000) for Naturalization

  1. At least one parent is a citizen and has been physically present in the U.S. for a total of five years prior to the child’s birth. At least two of the five years must have been when the parent was at least 14 years old;
  2. The child remains under 18 years old and is unmarried until the naturalization process is completed;
  3. The child resides outside the U.S. with the U.S. citizen parent; and
  4. The child is temporarily present in the U.S. under lawful admission and status until the naturalization process is finished.

Once a N-600K has been filed along with the supporting documents and fees, the USCIS will issue either a preliminary approval notice with an interview appointment or a denial notice. If the child is not eligible, the USCIS will issue a Notice of Intent to Deny (NOID). A denied application can be appealed with a Form I-290B within 30 days.

If the child receives an interview notice, this can be presented to the U.S. embassy in their country of residence to request a nonimmigrant visa to the U.S. After the USCIS reviews the N600K and proof of legal status during the interview, the agency will approve the application. During the interview the child is required to take an oath of allegiance. On the date of this oath the child becomes a U.S. citizen and is granted a Certificate of Citizenship.[1]

[1] http://mikebakerlaw.com/blog/2013/10/07/u-s-citizenship-children-birth-acquisition-derivation/