Policy Memorandum #75, Update of the Implementation Instructions for Title I of the Child Citizenship Act of 2000, Public Law 106-395 (CCA), was based on the contents of a draft version of the Interim Regulations that existed at the time the Memorandum was signed. Two changes in the contents of the Interim Regulations require that sections in Policy Memorandum # 75 be amended. On page 7 of the memorandum, the second sentence of the second paragraph of the “ Legal Custody ” section is deleted. Two new paragraphs are added to the “ Lawful Admission and Maintenance of Status ” section. On page 10, the second sentence of the second paragraph of “ How should the Service process pending N-600s and N-643s? " is changed by replacing “approved if filed on February 27,2001" to "approved if filed on or after February 27,2001."

This memorandum provides instructions for adjudicating applications for certificates of citizenship under the Title I of the Child Citizenship Act of 2000 (CCA), P.L. 106-395. The CCA takes effect on February 27, 2001. A separate memorandum to address Title II of the CCA, relating to protections for aliens who impermissibly voted or made a false claim to U.S. citizenship, will be issued at a later date.

The INS will work with Congress, the adoption community and other stakeholders to re-engineer and streamline the current process for obtaining a Certificate of Citizenship for a child. In the interim, this field guidance addresses procedures for adjudicating cases under the current process.

What sections of the Immigration and Nationality Act (INA) are amended or repealed by the CCA?

The CCA amends sections 320 and 322 of the INA and repeals section 321 of the INA. The CCA does not affect other provisions of the INA (e.g., sections 301 through 309), under which an individual may request a certificate of citizenship.

What are the requirements of the new section 320?

The new section 320 of the 'NA states:

SEC. 320. (a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

(b) Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1).

What are the requirements of the new section 322?

The new section 322 reads:

SEC 322. (a) A parent who is a citizen of the United States may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 320. The Attorney General shall issue a certificate of citizenship to such parent upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:

(1) At least one parent is a citizen of the United States, whether by birth or naturalization.

(2) The United States citizen parent –

(A) has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or

(B) has a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

(3) The child is under the age of eighteen years.

(4) The child is residing outside of the United States in the legal and physical custody of the citizen parent, is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.

(b) Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 337(a), upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this Act of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.

(c) Subsections (a) and (b) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(l).

Does Title I of the CCA apply to applicants who are currently over the age of 18?

No. The CCA provides benefits only to those persons who had not yet reached their 18th birthday as of February 27, 2001.

Which children are eligible for the benefits under the CCA?

The CCA applies to adopted children and certain foreign-born natural children. A child adopted by a U.S. citizen parent is eligible under the CCA if the child satisfies the requirements applicable to adopted children under section 101(b)(1) of the INA. This includes children described in sections 101(b)(1)(E) and (F) of the INA.

Note: Pub. L. 106-279, Intercountry Adoption Act of 2000, added section 101(b)(1)(G) to the text of the INA on October 06, 2000. However, although the Hague Convention has been ratified, this section of the INA is not yet in force and will not become effective until the United States Department of State deposits the instruments of ratification with the Hague Convention of Private International Law, tentatively in the spring of 2004. When it becomes effective, it will he included in the definition of children cov ered by the CCA.

The CCA also applies to children who meet the requirements of section 101(c)(1) of the INA. This includes unmarried children born in wedlock and legitimated children. Note that the definition in section 101(c)(1) of the INA, for nationality and citizenship, requires that the legitimation occur before the child is 16 years old, not 18 years old as required in the definition of “child” for visas.

A child of a naturalizing alien parent also is covered by the CCA provided that the child meets the definition of child under 101(c)(1), or 101(b)(1)(E) or (F) if adopted. The CCA only requires one U.S. citizen parent to confer automatic citizenship. Thus, the naturalization of a single alien parent, regardless of his or her marital status or the immigration status of the other parent, is sufficient for a child to be eligible for citizenship under the CCA.

Which children are not eligible for the benefits of the CCA?

Stepchildren and children born out of wedlock who have not been legitimated, are not included in the definition of “child" as used in Title III of the INA. Therefore, unless such children are adopted or legitimated, they will not be eligible for benefits under the CCA.

What forms will applicants file for a certificate of citizenship under the CCA?

Applicants for certificates of citizenship under the CCA will continue to use the current Form N-600, Application for Certificate of Citizenship, Form N-643, Application for Certificate of Citizenship on Behalf of an Adopted Child (and N-600/N-643, Supplement A, if relevant).

The Service is looking at whether the Form N-643 and Form N-600/N-643, Supplement A, should be consolidated into a revised N-600. However, until the revision is completed and the new form is published, all offices should continue to accept the current Form N-600 and N-643 with the current fees of$160.00 and $125.00 respectively. The requirements contained in the CCA overrule the instructions on these forms in regard to applications filed under the new sections 320 and 322.

Are there any changes as to how and where applications should be filed under the CCA?

No. Until the streamlined, re-engineered procedures are implemented, the current procedures should be followed. For U.S. citizen parents filing an N-600 for a biological child or N-643 for an adopted child acquiring citizenship under section 320, the application is filed with the district office or suboffice having jurisdiction over the U.S. citizen and child's place of residence.

For U.S. citizen parents filing an N-600 for a biological child or N-643 for an adopted child under section 322, the application is filed at the office where the family wishes to appear for the interview. The INS will send an appointment letter to the family. The appointment letter should be taken to a U.S. consulate or the consular section of a U.S. embassy in order to obtain a nonimmigrant visa for the child to enter the United States. The child should be certain of obtaining an 1-94, Arrival-Departure Re cord, at the time of admission in order to document legal status at time of interview. Both the child and the United States citizen parent must be present at the interview.

What documents must be submitted with an application filed pursuant to the CCA?

The required documents are listed in the instructions on the forms. As stated in the instructions for the current N-600, the Service will not require applicants to resubmit documents that the Service already has received as part the immigrant visa, adjustment of status, or any other immigration process .

The Service will rely on evidence already in the child's A-file that establishes the citizenship or marital status of the U.S. citizen parent for children admitted in the “IR-2" (child of a U.S. citizen born in wedlock, or legitimated prior to age 16, or adopted by and in the custody of a parent with whom the child has resided for at least two years), “IR-3" (orphan adopted abroad by a U.S. citizen), “IR-4" (orphan to be adopted in U.S. by U.S. citizen), or “IR-7" (IR-2s who adjust in the United States) cat egory. The Service will also rely on the copy of the final order of adoption contained in the child's A-file for children admitted in the “IR-3" category. The A-file of a child who immigrated as an “IR-3" will almost always contain all required documents needed to adjudicate the application for certificate of citizenship. Similarly, the A-file of a child who immigrated as an “lR-4" will almost always contain all required documents except evidence of either a final adoption in the United States or recognitio n of the foreign final adoption by a competent authority in the state where the child resides.

For children who immigrate as “IR-4s,” the file must contain either a proper copy of a full, final adoption in the United States, or evidence that a competent adoption authority in the state where the child resides recognizes the full validity of a foreign adoption. This evidence could be either a document that addresses this particular adoption or a proper copy of a document issued by a competent authority that states that all foreign adoptions are recognized or that all foreign adoptions that fall within a class that includes this particular adoption are recognized. This document might be submitted by the family or already be in the possession of the INS. When an INS office has satisfactory evidence of this type, the INS officer should make this fact known to local adoption agencies, U.S. citizen parents processing l-600s for children who will be admitted as “IR-4”s, and U.S. citizen parents of children who have already immigrated as an “IR-4."

As instructed on Form N-600, at the time of filing the application, applicants should provide the name and A-number of the individual’s administrative file that contains the documents needed to adjudicate the application for a certificate of citizenship. In the case of persons who were lawfully admitted for permanent residence as a member of a family that immigrated as quota category immigrants, refugees, or asylees, the required documents are frequently in the A-file of the principal in the immigration process.

All offices should review procedures to request the needed A-files as soon as possible after the receipt of an application for a certificate of citizenship. The Central Index System (USCIS) already is programmed to track follow-up requests, when needed, of all File Transfer Requests (FTR) that show the reason for the request as being “N-400,” “400,” ~N-600,” “600,” “N-643,” or “643.” Therefore, all FTRs for N-600s should show the reason for the request as either “N-600” or “600.” All FTRs for N-643s should show the reason for the request as either “N-643” or “643.”

Any office that wishes to adjudicate an application for a certificate of citizenship without waiting for the arrival of the Service file that contains the documents already submitted to the Service may do so by using the copies of the documents that are still in the family’s possession.

How will the Service determine legitimation, legal custody, and lawful admission for purposes of the CCA?

Legitimation

The Service requires evidence that a child born out of wedlock has been legitimated. The definition in section 101(c)(1) not only requires that the child be legitimated, but also that the child be in the legal custody of the legitimating parent(s) at the time of such legitimation.

If a competent legal authority has issued a document of legitimation that names the father and the child and states that the child was in the legal custody of the father, the Service will find that the child is a legitimated child within the meaning of 101(c)(1). If the legitimation was accomplished by means of a general law (i.e., collective legitimation statutes), evidence must be submitted that the child was in the legal custody of the father at the time of legitimation. Evidence that the child was livin g with the father at the time of the legitimation will establish the presumption that the child was in the legal custody of the father and the Service will find that the child is a legitimated child within the meaning of 101(c)(1).

Legal Custody

The Service will determine legal custody based on either the adoption decree or custody order issued pursuant to a divorce or separation agreement. The Service will also presume legal custody under certain factual circumstances.

For children admitted as lawful permanent residents prior to February 27, 2001, the Service will presume that the U.S. citizen parent had legal custody, if the child is still living with and in the physical custody of the citizen parent on February 27, 2001.

Lawful Admission and Maintenance of Status

To qualify under section 320 of the CCA, applicants must establish not only that they have been admitted to the United States as lawful permanent residents, but also that they are “residing in” the United States pursuant to admission in such status. Admission in any immigrant classification satisfies the lawful permanent resident requirement. A more difficult question is raised by the requirement that the applicant be “residing in” the United States. Under the section 101(a)(33) of the Act, “residence” is d efined as “the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent." On the other hand, in certain circumstances, an alien with lawful permanent resident status may live outside the United States without losing that status, and for some purposes U.S. citizens living outside the United States are considered to still have a residence in the United States.

The Service, in conjunction with the Department of State, is reviewing the legal question of whether, and if so, under what circumstances, a child with lawful permanent resident status who is actually living outside the United States can be described as “residing in” the United States for purposes of the CCA. Until this question is resolved, the Service and Department of State will only document as a United States citizen a child in two instances. First, the child will qualify if on or after February 27,200 1, the child is admitted as a lawful permanent resident and actually living in the United States. Second, the child will qualify if the child was previously admitted as a lawful permanent resident, but was absent from the United States on February 27, 2001, the child will qualify only if that child has returned to the United States and was re-admitted as a lawful permanent resident. The child must also be in the legal and physical custody of the U.S. citizen parent. The Service and Department of State, in t he interim, will regard that child as residing in the United States.

Under section 322 of the Act, a foreign-born child who resides outside the United States must be lawfully admitted to the United States and maintain such lawful status until the application for certificate of citizenship is approved and the oath of allegiance administered (unless waived). “Admission” is defined under section 101(a)(13)(A) of the Act. A child may be admitted in any nonimmigrant classification. A child is considered to have maintained lawful status if his or her nonimmigrant classification ha s not been revoked or has not expired by operation of law.

The Service should determine whether an applicant has maintained such lawful status by reviewing the Form I-94, Arrival-Departure Record. Applicants should be permitted to submit this information at the time of examination, as many section 322 applications are filed prior to the child's actual entry into the U.S. on a nonimmigrant visa.

Are interviews necessary for applications filed under new sections 320 or 322?

Under 8 CFR § 341.2, in certain instances the Service may process applications for certificates of citizenship without an interview. Many applications filed under section 320 may be adjudicated without an interview. Applications filed for children who become citizens upon their parent(s) naturalization frequently can be adjudicated without an interview, provided the Service has proper evidence of the parent(s) naturalization and the A-file(s) that contain the documentation of the naturalizing parent and chi ld's identity and relationship. Similarly, applications filed for children who immigrated as IR-3s may be adjudicated without an interview if the office has the child's A-file. Interviews for IR-4s may waived if the adjudicating officer has the child's A-file and evidence of the final adoption (or the recognition by the state of residence of a foreign adoption).

All applications for certificates of citizenship filed under section 322 require an interview with both the U.S. citizen parent and the child.

What is the date of citizenship of children naturalized under the new section 320?

The CCA becomes effective on February 27, 2001 and is the earliest date on which any person can become a U.S. citizen under the CCA. Only those persons who meet all of the requirements of the CCA on or after February 27, 2001 will become citizens under the CCA.

For children who acquire citizenship on the date the CCA goes into effect, the certificate of citizenship should reflect February 27, 2001 as the date of acquisition. Children whose date of citizenship will be February 27, 2001, are those who are still under age 18 and who meet all other requirements of section 320 (i.e., lawful permanent residence, living with and in the legal and physical custody of the U.S. citizen parent) on February 27, 2001.

After February 27, 2001, the date reflected on an individual's certificate of citizenship will be the date when the last requirement needed to acquire citizenship automatically under section 320 is met. This date can be either:

• the date on which an alien parent of a qualifying child naturalizes,
• the date on which a qualifying child is lawfully admitted for permanent residence,
• if adopted, the date on which a qualifying child, who has been admitted as a lawful permanent resident, has been finally adopted by a U.S. citizen or had such adoption recognized by the state where the child resides

Note: An adopted child must satisfy the requirements applicable to adopted children under section 101(b)(1) to be eligible for benefits under the CCA. Therefore, unless the adopted child is the beneficiary of an approved 1-600, the adopted child must have been in the legal custody of, and resided with, the adopting parent for at least two years before being eligible for CCA benefits.

Thus, provided all other requirements are met, children admitted as lawful permanent residents under any provision of the INA while their parent(s) were not yet citizens will become citizens the date either parent naturalizes. Similarly, children admitted as “IR-2"s, “IR-3"s, and “IR-7"s will acquire citizenship on the date of lawful admission for permanent residence.

Children lawfully admitted as ”IR-4"s that had not been adopted before immigrating will become citizens on the date of the full, final adoption in the United States by his or her U.S. citizen parent(s). Children lawfully admitted as “IR-4"s that had a full, final adoption in another country would be citizens retroactive to the date of their lawful admission for permanent residence if the competent authority in their place of residence in the United States recognizes the validity of the foreign adoption. Ch ildren lawfully admitted as “IR-4"s that had a full, final adoption in another country would be citizens on the date of the final adoption in the United States by their United States citizen parent(s) if the competent authority in their place of residence in the United States does not recognize the validity of the foreign adoption.