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USCIS Provides New Definition for Residency for Citizenship Applications. Children of U.S. Government Employees and Military Stationed Overseas No Longer Considered Residents

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If you are a U.S. citizen and your child was born outside the U.S., your child may acquire U.S. citizenship at birth. However, simply being born to a U.S. citizen parent is not enough for the child to get the U.S. citizenship and further requirements will have to be satisfied. The analysis will depend on many things including the parents’ domicile at the time of birth, whether the child was born in or out of wedlock, whether the U.S. citizen is the father or mother of the child. To learn more about the different requirements, please click here.

USCIS has issued on August 21, 2019, a new policy manual on the definition of residency vs. physical presence. This new policy manual will go into effect on October 29, 2019. Please click here to view the entire manual.

According to the new manual, the term residence should not be confused with physical presence, which refers to the actual time a person is in the United States, regardless of whether he or she has a residence in the United States. Although some provisions related to naturalization and citizenship require specific time periods of physical presence, residence, or both, in contrast, there is no specific time period of residence required for purposes of acquiring citizenship where a child is born outside the United States of two U.S. citizen parents.

However, there are various considerations USCIS will look into if whether a U.S. citizen may transmit their citizenship to their children.

U.S. Citizens Who were Born, but did not reside, in the United States.

A U.S. citizen who acquired U.S. citizenship based on birth in the U.S. but has never resided in the U.S. has not established residency in the U.S. and may be unable to transmit citizenship to their children. However, if the U.S. citizen parent had returned to the United States after his or her birth and established residence before giving birth to the child outside the United States, then he or she may be able to meet the residence requirement based on that period of residence and transmit U.S. citizenship to his or her children.

Commuter and Temporary Visits to the U.S.

Residence is more than a temporary presence or a visit to the United States. Therefore, temporary presences and visits are insufficient to establish residence for the purposes of transmitting citizenship. For example, someone who resides along the border in Mexico or Canada, but works each day in the United States, cannot use his or her workplace to establish a residence.

Vacations or brief stays in the United States do not qualify as residence in the United States. However, attendance at school, college, or university in the United States for an extended period of time may be considered as residence in the United States depending upon the totality of the circumstances

Owning or Renting Property

 A person does not need to own or rent property in the United States in order to establish residence. In addition, owning or renting property outside of the United States does not automatically establish lack of residence in the United States. Owning and renting property in the United States may help to establish residence in the United States if the person also establishes that he or she actually lived in that property, for example. A person who owns property but never lived in the property would not be able to establish residence based on owning that property.

USCIS also provided an update on children of U.S. government employees and members of armed forced station abroad.

USCIS policy previously provided that children of U.S. government employees and members of the U.S. armed forces who were employed or stationed outside of the United States should be considered to be both “residing in the United States” for purposes of INA 320 and “residing outside of the United States” Their parents were permitted to file an Application for Certificate of Citizenship (Form N-600) on their behalf and obtain a Certificate of Citizenship showing that they had acquired citizenship automatically, or their parents were permitted to file an Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K) in order to apply for naturalization on the child’s behalf.

However, effective October 29, 2019, children residing abroad with their U.S. citizen parents who are U.S. government employees or members of the U.S. armed forces stationed abroad are not considered to be residing in the United States for acquisition of citizenship. Similarly, leave taken in the United States while stationed abroad is not considered residing in the United States even if the person is staying in property he or she owns.

Therefore, U.S. citizen parents who are residing outside the United States with children who are not U.S. citizens should apply for U.S. citizenship on behalf of their children and must complete the process before the child’s 18th birthday. The child of a member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization. Applications filed on or after October 29, 2019 are subject to this policy. The policy in place before October 29, 2019 applies to applications filed before that date. Children who have already been recognized through the issuance of a Certificate of Citizenship as having acquired U.S. citizenship under INA 320 are not affected by this policy change.

For more information about obtaining citizenship, please click here.

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