Photo by Michael Bar Haim on Unsplash

Do you think your child is eligible for U.S. citizenship but you're confused about whether they have it already or need to apply for it?

There are many different ways a child can acquire U.S. citizenship, and USCIS (United States Citizenship and Immigration Services) has recently updated its guidance on when custody determines a child's eligibility for U.S. citizenship.  

Most people know about birthright citizenship in the United States - meaning if you are born in the United States you are automatically a U.S. citizen. This is guaranteed by the Fourteenth Amendment, unless you are the child of a diplomat. However, not as many people know about citizenship eligibility for children of U.S. citizens who are in more unique circumstances - situations like adoption, stepchildren, or biological children born or living overseas whose parents are no longer together. 

In general, a child born abroad whose parent is a U.S. citizen can also derive citizenship, but there are eligibility requirements for this, and a custody agreement may affect that ability. Among other determinations, USCIS's latest guidance clarifies that the government “considers a U.S. citizen parent who has actual uncontested custody of a child to have legal custody for purposes of acquisition of citizenship when there is no judicial determination on legal custody and the relevant jurisdiction's law does not determine which parent has legal custody of the child”.

If you are the parent of a child with custody orders that lives overseas, and you are not sure about your child's naturalization status, there are many factors that contribute to that determination - some of which are: Were you married at the time of the child's birth? Were you a natural born U.S. citizen or did you obtain citizenship? Do you have physical custody, legal custody, or joint custody? More explanations on each of these situations can be found in the USCIS Policy Manual, but they can be very confusing and we encourage you to speak to an immigration attorney about your child's citizenship status.

If you have questions about filing for citizenship, or another immigration petition, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.