INTRODUCTION
USCIS issued a Policy Alert (PA-2019-05) on August 28, 2019 to improve definition of “Residence” and also clarify the distinction between Residence and Physical Presence. Many of the statutory provisions related to citizenship require US residence and there were inconsistencies between INA sections 320 and 322 with respect to the treatment of residence. This PA also rescinds previous guidance from 2004 regarding children of US Government employees and US Armed Forces members stationed abroad and how their children will no longer be considered to be “residing in the United States” for purposes of acquiring citizenship under INA 320.
EFFECTIVE DATE
The date of this PA implementation is October 29, 2019
INA 320 NO LONGER AVAILABLE IN CERTAIN CASES
Children born outside of US and who did not acquire US Citizenship at birth had until now two ways to become US Citizens – INA 320 and INA 322. Moving forward it will be INA 322 only and here is why. The clarification being offered in this PA is that children residing abroad with their US Citizen parents who are US Government employees or members of the US armed forces stationed abroad are not considered to be residing in the United States for acquisition of citizenship. Previous policy from 2004 did not make sense – since they allowed applicability of both INA 320 and INA 322 – they would consider the children to be both residing in the United States for applicability of INA 320 and residing outside the United States for applicability of INA 322. This was causing inconsistent adjudications. They were interpreting INA 320 this way (children treated as residing in US even though they were residing abroad) by comparison to naturalization requirements under INA Section 316. Under INA 316, service abroad is considered excused absence and not interruptive of Continuous Residence for naturalization purposes.
INA 320 pertains to issuance of “Certificate of Citizenship” – Form N-600 must be filed
▪ Required residing in the United States
▪ Automatic acquisition of Citizenship
INA 322 pertains to “Application for Citizenship and Issuance of Certificate” – Form N-600K must be filed
▪ Requires residing outside of the United States with US Citizen Parent serving abroad
▪ Must complete naturalization process before child’s 18th birthday – must complete abroad
▪ Must take oath and subscribe to Oath of Allegiance.
So, essentially after October 29, 2019, INA 322 is the ONLY way forward for Children born outside of US and who did not acquire US Citizenship at birth – to become US Citizens.
POLICY ALERT’S OTHER HIGHLIGHTS CLARIFYING RESIDENCE AND PHYSICAL PRESENCE
This PA clarifies that temporary visits to the United States do not establish U.S. residence and that it would be distinct from Physical Presence in the United States.
- Definition of “U.S. Residence” – Residence is defined as the person’s principal actual dwelling place in fact, without regard to intent. He / She is not required to live in a particular place for a specific period of time in order to consider that place as his or her “Residence.” However, the longer a stay in a particular place, a person can establish that place as his or her Residence.
- Difference between Residence and Physical Presence –
a. “Physical Presence” refers to actual time a person spends in the United States regardless of whether he/she has a residence. This cannot be considered as synonymous to “Residence.” Although, there are certain provisions related to naturalization and citizenship which require specific time periods of physical presence, residence, or both;
b. In contrast there is no specific time period of Residence required for acquiring citizenship where a child is born outside the United States of two U.S. citizen parents - Citizenship by Birth-
a. Earlier a person may have automatically acquired U.S Citizenship by birth in the United States without actually residing in United States. Since he/she will not be able to establish his/her residence in the US, they will be unable to transmit U.S. citizenship to his/her Children;
b. A US born child has to sufficiently demonstrate that his/her mother was not transiting or merely visiting United States during his/ her birth. If the US birth Certificate indicates the his/her mother’s address outside the United States, the child wouldn’t be able to qualify the residence requirement;
c. Documents that can be presented to prove the U.S. Residence are not limited to the following:
i. U.S. marriage certificate indicating the address of the bride and groom;
ii. Property rental leases, property tax records, and payment receipts;
iii. Deeds;
iv. Utility bills;
v. Automobile registrations;
vi. Professional licenses;
vii. Employment records or information;
viii. Income tax records and income records, including W-2 salary forms;
ix. School transcripts;
x. Military records; and
xi. Vaccination and medical records - Temporary visit and Commuters- Temporary visitors and commuters won’t be able to establish Residence in the United States due to their temporary presence. Similarly, vacations in the United States will not qualify as residence in the United States
- Owning or Renting Property- Renting or owning a property is not a criterion to prove Residence in the United States, though it might help in establishing the Residence in the United states when he/she actually lives in the very property.
- Automatic Acquisition of Citizenship after Birth (INA 320)- A child born outside United States gets an automatic acquisition of Citizenship when the following conditions are met on or after February 27, 2001:
a. The child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or through naturalization;
b. The child is under 18 years of age;
c. The child is a lawful permanent resident (LPR); and
d. The child is residing in the United States in the legal and physical custody of the U.S. citizen parent - Children of U.S. government employees and U.S. armed forces employed or stationed outside the United States will no longer be considered to be residing in the United States for acquisition of citizenship. US Citizen parents now will be required to apply for their Citizenship by completing the process before the child turns 18 under INA 322. Children of U.S. armed forces will get their eligibility to complete the naturalization process provided parents were stationed abroad on official orders.
CONCLUSION
The existing USCIS policy guidance was from 2004 and its predated changes to the INA in 2008. As such, this PA was long overdue. The old guidance had posed various challenges resulting in inconsistent adjudications by USCIS officers adjudicating applications for certificates of citizenship, and U.S. Department of State (DOS) consular officers adjudicating passport applications. It is also recognized that the prior policy guidance was in conflict with several provisions of the Immigration and Nationality Act especially with acquisition of citizenship status. By providing the PA USCIS sets to rectify the earlier concerns and streamline the adjudication process of citizenship applications.
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