Child Citizenship Act Confusion: INA 320 or INA 322

[azureblue83]

The child was born in China. The father is a naturalized U.S. Citizen. The mother is a LPR.

 

The child could not obtain automatic citizenship, because the father did not reside in the U.S. for 5 years. The child had to go thru immigration processing and entered the U.S. with IR-2 visa.

 

Now the confusion begins. There are two laws INA 320 and INA 322.

 

INA 320: the child receives citizenship automatically upon entering U.S.

INA 322: the child must apply and his/her U.S. parent must prove 5-year residence in the U.S.

 

Initially, it is believed that the child falls under INA 320. But when applying for a US passport for the child, the US parent was asked to provide secondary evidences, one of which including:

 

"A statement of your U.S. citizen parent detailing all periods and places of residence or physical presence in the United States and abroad before your birth." (See link; scroll down to "Foreign Documents + Parent Citizenship Evidence")

 

Does this mean the U.S. citizen parent has to meet the 5 year residence, as INA 322 required, anyway?

 

Another question is: is it necessary to get a Certificate of Citizenship first? Or directly get a passport is OK? And which form to file? N-600 or N-600K for the Certificate?

 

Thank you for your help.

Edited August 17, 2015 by azureblue83 (see edit history)

[Randy W]

After reading through both Acts a couple of times, it's unclear exactly under what situation INA 322 would apply, while INA 320 does not.

 

There's this, which maybe I can try reading again tomorrow

 

According to the current INA §322(a), a parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under INA §320.

. . .

The child is not required to first obtain lawful permanent residence.

 

But yes, apparently in your case the U.S. citizen parent has to meet the 5 year residence requirement.

The Certificate of Citizenship is optional, but may come in handy to prove citizenship, although the passport will usually serve the same purpose.

A person who automatically obtains citizenship is not required to file an Application for Certificate of Citizenship (​Form N-600​). A person​ who seeks documentation of such status​, however, must submit an application to obtain a Certificate of Citizenship from USCIS. ​A person may also apply for a U.S. Passport with the Department of State to serve as evidence of his or her U.S. citizenship.​

 

 

Edited August 17, 2015 by Randy W (see edit history)

[Randy W]

. . . and this at http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/child-citizenship-act.html

 

Mere entry into the United States or a temporary visit - even if on an immigrant visa - does not meet INA Section 320’s requirement that the child be "residing in the United States." Determining whether a child is residing/has resided in the United States typically rests on an analysis of both the character and the duration of the stay. A parent may be required to provide supporting evidence regarding a child’s stay in the United States in the legal and physical custody of the U.S. citizen parent(s) in support of the child’s passport application.

 

[azureblue83]

Randy, Thank you so much for spending your time reading and replying. This is a very special and interesting case.

 

After making this post, I did some more research and found this: http://www.uscis.gov/policymanual/HTML/PolicyManual-Volume12-PartH.html

 

After reading Chapter 4 and 5, it cleared up for me.

 

Chapter 4 for INA 320 - This is for child residing INSIDE U.S., wishing to derive citizenship thru his/her U.S. citizen parent. No mention of U.S. parent must have resided in U.S. for 5 years.

Chapter 5 for INA 322 - This is for child residing OUTSIDE U.S., wishing to derive citizenship thru his/her U.S. citizen parent. Specific mention of U.S. parent must have resided in U.S. for 5 years.

 

So, basically, when the child was back in China, the child could NOT get citizenship under INA 322 because the father did not reside in US for 5 years.

 

But, once the child entered U.S. with IR-2 immigration visa, the child is now considered "residing INSIDE U.S."; so the child automatically become a U.S. citizen under INA 320. The father does not have to be or prove 5-year resident U.S. citizen.

 

Tricky

 

Here's a 3rd Party site verifying my conclusion: https://americansabroad.org/issues/citizenship/child-citizenship-act-of-2000/ . (Read 3rd paragraph of "Discussion" and also "How this Law Works")

Edited August 17, 2015 by azureblue83 (see edit history)

[Randy W]

Okay - thanks for reporting back. I guess this was the clause in INA 322 that confused me last night:

 

The child is lawfully admitted, physically present, and maintaining a lawful status in the United States at the time the application is approved and the time of naturalization.

 

 

This does NOT require that the child be an LPR.​

Edited August 18, 2015 by Randy W (see edit history)

[newacct]

The child was born in China. The father is a naturalized U.S. Citizen. The mother is a LPR.

 

The child could not obtain automatic citizenship, because the father did not reside in the U.S. for 5 years. The child had to go thru immigration processing and entered the U.S. with IR-2 visa.

How did the father naturalize and not spend 5 years in the US? To naturalize you needed to have resided in the US as a permanent resident for 5 years, and yes, technically you could have taken trips out of the US during that time that reduced the time, but probably not by much. Also there's the time after naturalization and before the baby was born, and any time spent in the US before being a permanent resident. It would be very unusual for that not to be 5 years. Was the father not naturalized yet when the baby was born?

 

Also, you said the mother was an LPR. Was the mother an LPR when the baby was born? If so, the mother should have been able to bring the baby to the US under age 2 on her first trip back to the US, without needing any immigration processing or visas. But this is irrelevant now.

 

Now the confusion begins. There are two laws INA 320 and INA 322.

 

INA 320: the child receives citizenship automatically upon entering U.S.

INA 322: the child must apply and his/her U.S. parent must prove 5-year residence in the U.S.

When the child entered the US with an immigrant visa, he/she automatically became a US permanent resident. And since he/she was residing in the US as a permanent resident under 18 with a US citizen biological parent, he/she also instantly, automatically, and involuntarily became a US citizen under INA 320.

 

The INA 322 process is completely different. To use it, you would file the N-600K form while the child is outside the US and not a US citizen. Then, when USCIS approves it, they would schedule an oath ceremony inside the US. The child must then get a nonimmigrant visa to the US, almost always a B2 visa, to attend the oath ceremony. Only upon taking the oath does the child become a US citizen. (The fact that most nonimmigrant visas including B2 require intent to return to the home country explains why the INA 322 process can generally only be used for children who intend to continue residing abroad.) This does not apply to this child because, for starters, you never filed N-600K, and the child is already a citizen.

 

Initially, it is believed that the child falls under INA 320. But when applying for a US passport for the child, the US parent was asked to provide secondary evidences, one of which including:

 

"A statement of your U.S. citizen parent detailing all periods and places of residence or physical presence in the United States and abroad before your birth." (See link; scroll down to "Foreign Documents + Parent Citizenship Evidence")

 

Does this mean the U.S. citizen parent has to meet the 5 year residence, as INA 322 required, anyway?

That page is very confusing and incomplete. Clearer is the DS-11 passport application form itself:

 

"If you claim citizenship through naturalization of parent(s): Submit the Certificate(s) of Naturalization of your parent(s), your foreign birth certificate (and official translation if the document is not in English), proof of your admission to the United States for permanent residence, and your parents' marriage/certificate and/or evidence that you were in the legal and physical custody of your U.S. citizen parent, if applicable."

 

Another question is: is it necessary to get a Certificate of Citizenship first? Or directly get a passport is OK? And which form to file? N-600 or N-600K for the Certificate?

 

Thank you for your help.

It is not necessary to get a Certificate of Citizenship ever. As a US citizen, the child can get a US passport at any time. And the passport is much cheaper, much faster to get, and more useful than a Certificate of Citizenship. However, it may be a good idea to get a Certificate of Citizenship (the form to file is N-600) in the long term to serve as a backup proof of citizenship in case the passport gets lost.