U.S. Citizenship and Immigration Services (USCIS) has issued new guidance regarding legal and physical custody requirements for children seeking U.S. citizenship under Section 320 and naturalization under Section 322 of the Immigration and Nationality Act (INA). The guidance also expands on the derivation of citizenship before the Child Citizenship Act of 2000 under former INA Section 321.
This update aims to clarify and expand current guidelines on how USCIS determines legal and physical custody for children of U.S. citizens in citizenship claims. Specifically, the guidance broadens the understanding of when a child is considered in the legal custody of their U.S. citizen parent, clarifies the impact of a nunc pro tunc (retroactive) correction to a custody order, and specifies when USCIS may recognize private custody agreements.
According to the update, USCIS now considers a U.S. citizen parent to have legal custody of a child for citizenship purposes if they have actual, uncontested custody and there is no judicial determination of custody or if the jurisdiction’s laws do not designate which parent holds legal custody. The guidance also defines physical custody as a situation in which the child resides or physically lives with the U.S. citizen parent.
Additionally, the updated policy provides clarification on handling claims for citizenship derived before the Child Citizenship Act of 2000. It includes details on the legal custody requirements outlined in former INA Section 321.
USCIS emphasized, “This update will help ensure consistent determinations of legal and physical custody for adjudicating citizenship claims and provide more detailed guidance on determining legal and physical custody for eligibility for a certificate of citizenship in these cases.”
The agency noted that this change aligns with Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, which aims to remove barriers to citizenship.
To acquire citizenship under INA 320 or naturalize under INA 322, a child of a U.S. citizen must generally be residing in the legal and physical custody of the U.S. citizen parent. Legal custody, which is essential in many cases for citizenship, is determined by judicial decree or the law of the jurisdiction and involves responsibility for and authority over the child.
In cases of divorce or legal separation, varying custody arrangements can affect legal custody determinations for citizenship acquisition. Physical custody, similarly required under INA 320 and INA 322, mandates that the child live with the U.S. citizen parent.
The guidance addresses feedback received from USCIS’s Request for Public Input, which asked for clarification on the legal and physical custody requirements for citizenship.
Furthermore, USCIS clarified that it cannot issue a Certificate of Citizenship to any applicant who does not take the Oath of Allegiance unless the applicant qualifies for an oath waiver.
This updated guidance, included in Volume 12 of the Policy Manual, takes effect immediately and applies to all applications pending or filed on or after November 19, 2024. The guidance in the Policy Manual now supersedes any related previous guidance on this topic.
Kishor Panthi
View More PostsKishor Panthi is the founder and editor-in-chief of Khasokhas and NepYork. He is the author of three books, “Kampan,” "UNTRANSLATABLE" and “Zero Mile.” He writes about social issues, immigration, and politics.
