Citizenship of Child Born Abroad to Unwed U.S. Citizens24 May 2018
The U.S. Citizenship and Immigration Services (USCIS) recently has updated its policy manual to include new requirements for the automatic acquisition of citizenship for certain children born abroad to unwed U.S. citizen (USC) mothers. The new requirements are a result of the U.S. Supreme Court decision in Sessions v. Morales-Santana, and impact children born outside the United States to unwed USC mothers on or after June 12, 2017. The USCIS also has clarified evidentiary requirements for those born abroad to unwed USC fathers.
Background: Automatic Acquisition of U.S. Citizenship
Under the Immigration Nationality Act (INA), a child born outside the U.S. to at least one USC parent may acquire U.S. citizenship automatically at birth. The rules have changed numerous times over the years.
Generally, under current law, in order for a child to derive U.S. citizenship automatically at birth, the USC parent must have resided physically in the U.S. for a certain period of time prior to the child’s birth. The length of time the USC parent is required to have lived in the U.S. before the child’s birth is determined by statute.
Prior Law Discriminated in Favor of Mothers
If a child is born abroad to a USC parent and a foreign national parent, and the parents are married at the time of the child’s birth, then the child automatically acquires U.S. citizenship at birth, if, prior to the child’s birth, the USC parent resided in the United States for at least five years, including two years after the age of 14 years.
Prior to the ruling in Sessions v. Morales-Santana, this same rule applied if the father was a USC, the mother was a foreign national, and the parents were not married at the time the child was born. The father was also required to evidence a valid parent-child relationship with the child. In contrast, a child born abroad to an unwed USC mother only needed to show that the mother lived in the U.S. for at least one continuous year before the child’s birth. Thus, the law granted preferential treatment to a child born to an unwed USC mother over a child born to an unwed USC father.
Changes for Unwed USC Mother After Sessions v. Morales
On June 12, 2017, the U.S. Supreme Court held in Sessions v. Morales-Santana that requiring unwed USC fathers to meet the five-year residency requirement, while only requiring unwed USC mothers to show one year of continuous residency, was a violation of the U.S. Constitution because it discriminated against fathers. As such, the Court ruled that USCIS had to have the same residency requirements for unwed USC mothers as unwed USC fathers. Therefore, following the Supreme Court decision, an unwed USC mother of a child born abroad on or after June 12, 2017, must show that, prior to the child’s birth, she resided in the U.S. for at least five years, including two years after the age of 14. This same rule applies to USC fathers. While this has been the rule since the Supreme Court’s decision on June 12, 2017, the USCIS is adding it to its policy manual only now.
Additional Evidentiary Clarification
The new policy update also clarifies that, under the INA, an unwed USC father must agree in writing to provide financial support to the child. The new policy update explains that this requirement can be satisfied by documents that existed before the child’s 18th birthday, and need not be a separate agreement.
The recent updates to the USCIS policy manual do not change current law, but rather provide clarification on the policies that have been in existence since last summer. A child who has acquired U.S. citizenship automatically at birth can request evidence of U.S. citizenship by applying for a U.S. passport, or filing an N-600 application for a certificate of citizenship.
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