Rachel Browning’s Legal Blog

             The Child Citizenship Act of 2000 (the “Act”) allows certain foreign-born, biological and adopted children of U.S. citizens to acquire U.S. citizenship automatically. These children do not acquire U.S. citizenship at birth, but are rather, granted citizenship when they enter the United States as lawful permanent residents (LPRs).  To qualify under the terms of the Act, the child must meet the following requirements:

·    They must have at least one American citizen parent by birth or naturalization; be less than 18 years of age;

·    They live in the legal and physical custody of the American citizen parent; and are admitted as an immigrant for lawful permanent residence.

·    In addition, if the child is adopted, the adoption must be full and final. 

The Child Citizenship Act became effective February 27, 2001, meaning that children who met these requirements on that date automatically became American citizens. The Child Citizenship Act does not operate retroactively; thus children who were 18 years of age or older on that date did not acquire American citizenship from the Child Citizenship Act of 2000. 

The Child Citizenship Act also provides that children (biological or adopted) of American citizens who are born and reside abroad, and who do not become American citizens at birth can apply to the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (USCIS) for a certificate of citizenship if the following conditions are met: 

·    At least one parent of the child is an American citizen by birth or naturalization and;

·    The American citizen parent has been physically present in the United States for a total of at least five years, at least two of which are after the age of 14.   

If the child’s American citizen parent cannot meet the physical presence requirement, the requirement can be satisfied by one of the child’s American citizen grandparent, as long as the child is under the age of eighteen and the child lives abroad in the legal and physical custody of the American citizen parent and has been lawfully admitted into the United States as a nonimmigrant. Children who acquire citizenship under this new provision do not acquire citizenship automatically. They must apply to the Bureau of Citizenship and Immigration Services in the Department of Homeland Security (USCIS) and go through the naturalization process.

Derivative Citizenship

Some children become U.S. citizens automatically, or “derivatively,” through their parents’ naturalization. (Special rules may apply to immigrants who have done active duty service in the U.S. Armed Forces.) The laws about “derivative citizenship” vary, depending upon the date that the parent(s) naturalized.

As of February 27, 2001, a child will become a U.S. citizen derivatively as soon as all of the following things happen:

·    The child is under 18 years old;

·    The child is or becomes a permanent resident;

·    A parent of the child is sworn in as a naturalized U.S. citizen after February 27, 2001; and

·    The child lives with and is in the legal custody of the parent who became the U.S. citizen.

The above steps can occur in any order. The child will become a U.S. citizen derivatively through his parent’s naturalization as long as all of these requirements are met before the child’s 18th birthday. The child could live outside the U.S. at the time his parent became a U.S. citizen, as long as he later enters the U.S. as a permanent resident to live with that parent while still under 18 years old.

Prior to February 27, 2001, to become a U.S. citizen derivatively the laws were the same as above, except that if the child lived with both of parents, both parents had to become naturalized U.S. citizens before the child’s 18th birthday. If one parent naturalized while the child was less than 18 years old, but the other parent naturalized after the child’s 18th birthday, then the child did not become a U.S. citizen automatically and would have filed for naturalization on his own.  If you have questions regarding this process, or are interested in receiving more information about the immigration services provided by the attorneys at Smith & Garg, P.C. please contact us in either our Woodlands or Westchase Houston offices.