On August 29, 2019, the United States Citizenship and Immigration Services published a new policy that restricts the conferral of automatic citizenship to some children born abroad to active service members. The number of families who will be affected is estimated to be less than 100 families. This new rule caused panic and confusion concerning whether a child born in or out of the United States will qualify for U.S. citizenship.
There are several ways for a child to acquire U.S citizenship. Where a child is born in the United States, they are automatic U.S citizens. This law has not changed. If a child is born abroad, they may acquire U.S. citizenship at birth or before turning the age of 18. These laws also, have not changed.
In its latest policy announcement, USCIS explained that it is changing its policy concerning children born abroad to US government officials. Immigration previously allowed child born abroad to military personnel to be granted the same citizenship privileges as someone actually residing in the United States. This flexibility was given to active service members forced to travel due to their military assignments. This flexibility will no longer be offered. If an active military personnel gives birth abroad or adopts while on active duty, the child is no longer automatically considered to have been board on American soil and therefore a U.S. citizen. The parents will now have to rely on another area of immigration law for their child to obtain U.S citizenship. They must now file the appropriate application at the nearest U.S. embassy and claim the child as a U.S. citizen as being born to at least one U.S. citizen parent.
The law as to children born outside of the United States to a U.S citizen parent or parents has not changed. A child born abroad to at least one U.S citizen parent may acquire U.S. citizenship and be issued a Consular Report of Birth Abroad (CRBA). To apply, the US citizen parent must provide the child’s birth certificate, their proof of U.S citizenship, and proof that they resided in the United States for at least five years prior to the child’s birth. At least two of two of those five years must have occurred after the parent’s fourteenth birthday. Time spent abroad serving in the military may be counted towards the five-year requirement.
The new policy only applies to child born abroad to active US military personnel. Anyone born in the United States is still considered to be a US citizen. While President Trump has hinted that he intends to change the law, this has yet to be done. Any attempt by the administration to change automatic citizenship for people born on U.S soil will most certainly be challenged in court as a constitutional violation.
The new policy does clarify that a US citizen born in the United States who does not have the required physical presence and residence requirements will not be able to give US citizenship to their children. In other words, if you were bon in the United States, but never resided in the United States for five years, you will be unable to transmit U.S citizenship to your children born abroad.
In the event that you do not qualify to give your child citizenship at birth, you may still apply for their U.S Lawful Permanent Residence (LPR). Please note that the child must reside permanently in the United States, once they have received LPR status. Once in the United States, you may apply for U.S citizenship for your child as a child automatically acquiring U.S. citizenship after birth. To qualify, the child must have at least one U.S citizen parent, the child must be under the age of 18, the child must be an LPR, and residing in the United States in the legal custody of the U.S. parent.
The laws concerning citizenship have not changed. Anyone born in the physical United States is still considered to be a U.S. citizen. The requirements for a child born abroad to a U.S citizenship, also have not changed. The new policy only applies to child born abroad to active military persons. These children will no longer be considered as having been born in the United States for purposed of qualifying for U.S. citizenship.
Attorney Patricia Elizee is the managing partner of Elizee Law Firm, P.A. The firm focuses on immigration and family law. Ms. Elizee may be contacted at (305) 371-8846 and 1110 Brickell Avenue, Suite 315, Miami, Florida 33131.
