USCIS Updates Guidance on Custody Requirement for Children Acquiring Derivative Citizenship

On Tuesday, November 19, 2024, the U.S. Citizenship and Immigration Services (USCIS) announced that it had updated guidance on determining the legal and physical custody requirements of a child of one or more U.S. citizen parents for purposes of qualifying for derivative citizenship. Derivative citizenship refers to the automatic granting of U.S. citizenship to the lawful permanent resident child of a U.S. citizen parent, in a case where the child resides in the U.S. under the legal and physical custody of the U.S. citizen parent.

General Requirements for Derivative Citizenship

Under the Child Citizenship Act of 2000, a child born outside the United States automatically acquires derivative citizenship if ALL the following requirements are met:

• At least one parent of the child is a U.S. citizen, whether by birth or through naturalization
• The child is under the age of 18
• The child is a lawful permanent resident
• The child is residing in the U.S. in the legal and physical custody of the U.S. citizen parent

Update Makes it Easier to Qualify for Derivative Citizenship

The recent update “clarifies and expands” on what is meant by legal and physical custody. Accordingly, it should allow for more children to qualify for derivative citizenship.

Legal Custody

Legal custody is determined by local law or court order where the child resides. Typically, parents listed on the birth certificate are assumed to have legal custody. The USCIS has expanded on guidance for legal custody in a variety of situations, including divorce / separation, joint custody, and certain types of custody orders and agreements. If there is no judicial determination on legal custody and the law does not determine custody, the U.S. citizen parent who has actual uncontested custody has legal custody.

Physical Custody

When a child resides or physically lives with the parent, the U.S. parent has physical custody. This can be demonstrated by sharing the same address, evidence of school or hospital records, and affidavits, if necessary.

Conclusion

The USCIS has clarified the definition of physical and legal custody for children to derive citizenship and expanded guidance under the law. Still, as these issues can become complex, it is best to consult an immigration attorney to discuss the specific facts of your case.

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