Chapter 7 - Deriving Citizenship Before the Child Citizenship Act of 2000 (Former INA 321 and 320)

A. General Requirements for Deriving Citizenship After Birth (Before February 27, 2001)

The Child Citizenship Act of 2000 (CCA) applies only to children born on or after February 27, 2001, or those who were under 18 years of age as of that date.^[1] Persons who were 18 years of age or older before February 27, 2001, do not qualify for citizenship under current Section 320 of the Immigration and Nationality Act (INA). However, such persons may have derived citizenship through the relevant law in effect before the CCA.

In general, former INA 321^[2] applies to persons who reached the age of 18 years on or after December 24, 1952, but before February 27, 2001. Former INA 320 may also apply to these children.^[3]

According to former INA 321, a child born outside of the United States to two noncitizen parents (or one noncitizen parent and one U.S. citizen parent who subsequently lost U.S. citizenship) becomes a U.S. citizen if all of the following conditions were met before the child was 18 years of age:

• The child’s parent or parents met one of the following conditions:​
  • Both parents naturalized;​
  • One surviving parent naturalized if the other parent was deceased;​
  • One parent naturalized who had legal custody of the child if there was a divorce or legal separation of the parents; or​
  • The child’s mother naturalized if the child was born out of wedlock and paternity was not established by legitimation.
• The child was under 18 years of age when the parent or parents naturalized; and
• The child was residing in the United States following a lawful admission for permanent residence at the time the parent or parents naturalized or thereafter began to reside permanently in the United States while under the age of 18.

The sections below explain each of these requirements. There is no specific order in which the requirements of the law must have been satisfied for citizenship, as long as all requirements were satisfied before the child’s 18th birthday.^[4]

B. Naturalization of Both Parents

Unlike the CCA, which requires only one parent to be a U.S. citizen by birth or naturalization, former INA 321 generally required both parents to naturalize before the child turned 18 for the child to derive citizenship.^[5] This includes two noncitizen parents who naturalized, or one noncitizen parent and a U.S. citizen parent who lost U.S. citizenship, and later both parents naturalized. In certain circumstances, discussed below, the child could derive citizenship when only one of the parents naturalized.

C. Naturalization of Surviving Parent

A child born outside the United States derived U.S. citizenship under former INA 321 when the surviving parent naturalized if the other parent was deceased.^[6] The surviving parent did not necessarily have to naturalize after the death of the other parent. The surviving parent could have been a U.S. citizen through naturalization before the other parent died. A child whose noncitizen parent died after the naturalization of the surviving parent derived citizenship on the date of the death of the noncitizen parent, if the child was under the age of 18, and met all other requirements for derivation.

D. Naturalization of Parent Having Legal Custody Where There Has Been a Legal Separation of the Parents

Former INA 321 also provided for a child to derive citizenship if there was a legal separation of the parents and the parent having legal custody of the child naturalized.^[7]

1. Legal Separation or Divorce of the Parents

In order for parents to legally separate, they must be married or in a legally recognized relationship, from which they could legally separate. If parents were never lawfully married there can be no “legal separation” or divorce. The term “legal separation” means “a formal, judicial alteration of the marital relationship.”^[8]

An informal separation is not sufficient to render the parties legally separated.^[9] For purposes of former INA 321, a relevant court must have determined the legal separation (or the divorce).

Under former INA 321(a)(3), it is not a requirement that children be born in wedlock to derive citizenship based upon the naturalization of the parent who had legal custody of the child where there was a legal separation of the parents. Children born out of wedlock could derive citizenship if their parents later married and then legally separated before the child reached the age of 18.^[10] As long as the child met all requirements before the age of 18 years, legal separation did not need to occur before the parent’s naturalization.^[11]

2. Legal Custody

Legal custody, which refers to the responsibility for and authority over a child, is determined according to the relevant jurisdiction’s law or is determined by a court decree or order. If there was a judicial determination or judicial or statutory grant of custody, then the parent to whom custody was granted had legal custody for former INA 321 purposes.^[12]

A child of a naturalized U.S. citizen and a noncitizen, whose parents divorced or legally separated, derived citizenship under former INA 321 on the date the naturalized U.S. citizen parent was awarded custody of the child, if all other conditions were met.^[13]

If the parent naturalized after the date that custody was awarded to the naturalizing parent, the child would derive citizenship under former INA 321(a) on the date of the naturalization of the custodial parent, provided that the child was under the age of 18 and all other conditions were met. If the child resided outside the United States when the U.S. citizen parent was awarded custody and naturalized, the child would derive citizenship after beginning to reside permanently in the United States while under the age of 18.^[14]

Actual Uncontested Custody

If a child’s parents divorced or legally separated, but the decree of divorce or legal separation order was silent on the custody determination and the relevant jurisdiction’s law did not determine which parent had custody of the children, then USCIS considers the U.S. citizen parent who had actual uncontested (physical) custody of the child to have had legal custody of the child.^[15] Evidence showing the child was living with the U.S. citizen parent establishes “actual, uncontested custody.”^[16]

Joint Custody

For purposes of former INA 321, unlike current INA 320, some courts have held that “legal custody” does not include joint custody and instead requires sole legal custody. In particular, sole legal custody is required for applicants residing within the jurisdiction of the Fifth and Ninth Circuits of the U.S. Courts of Appeals.^[17] If there is no controlling law in a particular jurisdiction stating that sole legal custody is required, joint custody is sufficient to satisfy the legal custody requirement under former INA 321.

Private Custody Agreement

A private custody agreement between the parents generally does not impact the judicial custody determination following the divorce or legal separation for purposes of citizenship claims.^[18] However, an applicant may provide documentation of a state law that recognized an informal custody agreement between parents. If such a state law existed, an informal custody agreement may determine which parent had legal custody, if there was no court decree or the court decree was silent as to a formal custody agreement.^[19]

Nunc Pro Tunc Custody Orders

Sometimes, evidence supporting a claim of citizenship may include a nunc pro tunc^[20] correction of a custody order that retroactively modifies a legal custody order. For purposes of derivative citizenship, USCIS does not recognize nunc pro tunc custody orders if entered after the child’s 18th birthday that change the legal custody order from the time it was entered.^[21]

E. Naturalization of Mother When Child Was Born Out of Wedlock and Paternity Not Established by Legitimation

A child born out of wedlock whose mother naturalized, and whose paternity was not established by legitimation, derived citizenship under former INA 321^[22] on the date the mother naturalized, if the child was under the age of 18, and if the child was residing in the United States following a lawful admission for permanent residence. If the child resided outside the United States, the child would derive citizenship after beginning to reside permanently^[23] in the United States while under the age of 18.

Officers should review the legitimation laws of the father’s and child’s residence or domicile, whether in the United States or outside the United States, to determine if a child’s paternity was established by legitimation.^[24]

1. Paternity Not Established by Legitimation

If the child was legitimated, generally paternity was established by legitimation, and therefore the naturalization of the mother was not sufficient for the child to meet the requirements of the second clause of former INA 321(a)(3).^[25] However, there are cases where a child was legitimated, yet the child’s paternity was not established by legitimation.

Many countries have eliminated legal distinctions between legitimate and illegitimate children based on the marital status of their parents. In these countries, all children have equal rights and as such they are considered legitimate; therefore, paternity has generally been established by legitimation. However, some countries that have eliminated the legal distinctions between children born in wedlock and those born out of wedlock, may also have retained formal means of legitimation (for example, legitimation through the marriage of the parents).

In these cases, for purposes of former INA 321(a)(3), paternity was established by legitimation only if legitimation was achieved through the formal affirmative act required by the law.^[26] If such act did not occur (for example, the child’s parents never married), then paternity was not established by legitimation, even if the country eliminated legal distinctions between legitimate and illegitimate children. Therefore, in these cases, the child may have derived U.S. citizenship from the mother if all other requirements were satisfied. The burden is on the applicant to establish the requirements for derivative citizenship by a preponderance of evidence.^[27]

Retention of U.S. Citizenship

A child who derived U.S. citizenship because the child’s mother naturalized and paternity had not been established by legitimation does not lose citizenship if the father later legitimated the child and paternity was established under this clause of former INA 321.

F. Definition of Reside Permanently

Generally, a child must be lawfully admitted for permanent residence to derive U.S. citizenship under former INA 321. However, former INA 321 also states that the child may derive citizenship if the child “begins to reside permanently in the United States” after the parent or parents’ naturalization while under the age of 18 years.^[28]

Some circuit courts of appeals have defined “reside permanently” to not require a lawful admission for permanent residence. In the Second Circuit (New York, Connecticut, and Vermont), and the Ninth Circuit (Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, Hawaii, and Northern Mariana Islands), the child is not required to become a lawful permanent resident before the age of 18, provided that the child shows some objective official manifestation of permanent residence in the United States while under age 18.^[29] In these jurisdictions, a child begins to reside permanently in the United States when the child is physically in the United States, intends to reside in the United States permanently, and has taken some official action to accomplish that, such as applying for lawful permanent residence.^[30]

Outside the Second and Ninth Circuits, USCIS follows Board of Immigration Appeals (BIA) precedent that interprets “reside permanently” as requiring a lawful admission for permanent residence.^[31]

G. Adopted Children

As originally enacted in 1952, former INA 321 did not apply to adopted children^[32] of naturalized citizens. Adopted children could not derive U.S. citizenship from adoptive parents. However, adopted children could still derive from their biological parents if they met all other requirements, provided that the child’s adoption did not terminate the parental relationship with the naturalizing parent or parents.^[33]

On October 5, 1978, Congress amended former INA 321 to allow an adopted child to derive citizenship if the child was residing in the United States in the custody of the adoptive parent or parents, following a lawful admission for permanent residence at the time the adoptive parent or parents naturalized.^[34]

H. Application for Certificate of Citizenship (Form N-600)

1. Submission of Application

A person born outside the United States who claims to have derived U.S. citizenship is not required to have evidence of such status. However, if the person chooses to seek documentation of U.S. citizenship status, the person may file an Application for Certificate of Citizenship (Form N-600) with USCIS.^[35]

The Form N-600 must be submitted in accordance with the form instructions and filed with the required fee.^[36] There is no filing fee for Form N-600 for current or former members of the U.S. armed forces if they are filing on their own behalf.

Jurisdiction

The Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States, and the Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are outside of the United States.^[37] Therefore, generally, an Application for Certificate of Citizenship is submitted by persons who claim U.S. citizenship and are present within the United States. However, when a person who does not live in the United States files Form N-600, USCIS accepts and processes the application, but does not make a decision on the merits until the person is present in the United States in order to ensure that USCIS has jurisdiction over the application.^[38]

2. Photographs and Signature

USCIS may require the applicant (person seeking the Certificate of Citizenship), regardless of age, to appear at a local Application Support Center (ASC)^[39] for photograph and signature submission.^[40] A parent or legal guardian may sign for a mentally incompetent person.^[41]

USCIS does not submit information collected in connection with Form N-600 to the Federal Bureau of Investigation (FBI) for a background check.

Failure to Appear for the ASC Appointment

USCIS may consider the Form N-600 abandoned in cases where the person seeking a Certificate of Citizenship fails to appear for the ASC appointment, unless, by the appointment time, USCIS receives a change of address or rescheduling request that USCIS concludes warrants excusing the failure to appear.^[42]

If USCIS denies the application due to abandonment, the person eligible for the Certificate of Citizenship may submit a motion to reopen by filing a Notice of Appeal or Motion (Form I-290B).^[43]

USCIS does not deny an application for abandonment for failure to provide photographs if USCIS has evidence that the applicant is a member of the U.S. armed forces who is permanently or temporarily outside the United States and unable to provide photographs or appear to submit a photograph and signature for reasons related to the individual’s military service. USCIS coordinates with military service members in these circumstances.

3. U.S. Passport or Consular Report of Birth Abroad as Evidence of Citizenship

A person may also apply for a U.S. passport with the U.S. Department of State (DOS) to serve as evidence of their U.S. citizenship.^[44] A U.S. passport is valid for a limited time as established by DOS policies and standards on passport issuance.^[45] Once a passport expires, it is no longer conclusive evidence of citizenship.^[46] However, a Certificate of Citizenship never expires.

A valid, unexpired U.S. passport or a Consular Report of Birth Abroad (CRBA) serves as evidence of a person’s U.S. citizenship.^[47] An applicant for a Certificate of Citizenship may submit a valid and unexpired U.S. passport as evidence of U.S. citizenship.^[48] The officer must review the valid U.S. passport and the documentation submitted with the application and contained in the record to determine if it was issued properly.

The officer approves the Form N-600 if the applicant is a U.S. citizen and meets all requirements.

4. Request to Revoke U.S. Passport or Cancel Consular Report of Birth Abroad

If the officer determines that the applicant is not a U.S. citizen or USCIS has evidence indicating that a U.S. passport submitted as evidence was obtained or issued illegally, fraudulently, or erroneously, the officer reviews the case with USCIS counsel. Then, if appropriate, the officer may request that DOS revoke the U.S. passport.^[49]

Only DOS has the authority to revoke a U.S. passport or cancel a CRBA.^[50] DOS may revoke a U.S. passport in cases where the passport was obtained or issued illegally, fraudulently, or erroneously.^[51]

USCIS provides the following information to DOS in the passport revocation request:

• The applicant’s complete biographic information, including name and any known aliases;
• The applicant’s last known address;
• All previous unexpired U.S. passport numbers and alien registration numbers (A-numbers);
• An explanation for requesting revocation, including reasons for the request, analysis of the facts and dates used in determining that the passport should be revoked, and evaluation of evidence indicating that the applicant did not acquire U.S. citizenship;
• Copies of all documentary evidence in support of the request, including certified translations of any documents written or originally prepared in a foreign language; and
• The contact information of the USCIS office making the request.

Adjudication of Application with Revocation Request

After reviewing the case on the merits and requesting a revocation of a U.S. passport from DOS, the officer generally may not complete the adjudication of the Form N-600 until DOS responds.

If DOS notifies USCIS that it does not intend to revoke the passport, USCIS approves the Form N-600.^[52] However, in cases with unusual or complex circumstances, USCIS may further consult with DOS.

If USCIS has evidence indicating that a U.S. passport submitted as evidence was obtained or issued illegally, fraudulently, or erroneously, and the passport was valid at the time of filing, but is expired at the time of adjudication, the officer should review the case with USCIS counsel and DOS before adjudicating.^[53]

If DOS revokes the U.S. passport, the officer denies the application in cases where the applicant does not otherwise meet the eligibility requirements for issuance of a Certificate of Citizenship.

I. Documentation and Evidence

The applicant must submit the following required documents unless the USCIS administrative record already contains such documents, or they do not apply:

• The applicant’s birth certificate or record; 
• Marriage certificate of applicant’s parents, if applicable; 
• Death certificate of applicant’s parent or parents, if applicable; 
• Proof of termination of any previous marriage of each parent if either parent was previously married and divorced or widowed. For example, this could include a divorce decree, a legal separation order, or a death certificate;
• Evidence of U.S. citizenship of applicant’s parent or parents, such as a birth certificate showing birth in the United States, Certificate of Naturalization, Consular Report of Birth Abroad (FS-240), a valid unexpired U.S. passport, or a Certificate of Citizenship;
• Documents verifying legitimation according to the laws of the applicant’s residence or domicile or biological U.S. citizen father’s residence or domicile if the child was born out of wedlock;
• Documentation of legal custody in the case of divorce, legal separation, or adoption;^[54]
• Copy of the applicant’s Permanent Resident Card or Alien Registration Receipt Card or other evidence of lawful permanent resident status, such as an Alien Documentation, Identification and Telecommunication stamp in a valid foreign passport or travel document issued by USCIS;
• Copy of the full, final adoption decree, if adopted.^[55] If the child did not have a foreign adoption that is considered full, final, and complete, the applicant must submit evidence of the final adoption decree or order, or, if the U.S. jurisdiction of the adoptive parent or parents’ residence recognizes the foreign adoption decree or order as full and final, evidence establishing this under state law^[56] together with the foreign adoption order;^[57] and 
• Evidence of all legal name changes, if applicable, for the applicant and U.S. citizen parent.^[58]

An applicant does not need to submit documents that were submitted in connection with applicant’s prior applications, petitions or requests, such as:

• An immigrant visa application retained by a U.S. consulate for inclusion in the immigrant visa package; or 
• An immigrant petition or application included in a USCIS administrative file.

If necessary, an officer may request additional documentation to make a decision on the application.

J. Citizenship Interview and Waiver

In general, an applicant must appear in person for an interview before a USCIS officer after filing Form N-600. USCIS, however, may waive the interview requirement if USCIS administrative records already include all the required documentation necessary to establish the applicant’s eligibility or if the applicant submits the required documentation along with the application.^[59]

K. Decision and Oath of Allegiance

1. Approval of Application and Oath of Allegiance

Once the applicant has met all the requirements for citizenship, USCIS approves the Form N-600. USCIS determines the date of citizenship based on when the applicant met the last requirement.

USCIS issues proof of U.S. citizenship in the form of a Certificate of Citizenship if USCIS approves the Form N-600 and the person takes the Oath of Allegiance, if required to do so.^[60]

USCIS does not mail Certificates of Citizenship outside the United States except when USCIS issues a Certificate of Citizenship to a military member.

If an applicant does not take the Oath of Allegiance and is not eligible for a waiver, USCIS cannot issue a Certificate of Citizenship.^[61]

2. Denial of Application

If an officer denies the Form N-600, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.^[62] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

Footnotes 

[^ 1] Persons born on or after February 28, 1983, were under the age of 18 on February 27, 2001.

[^ 2] Section 321 of the INA, immediately before it was repealed by the CCA, provided that:

(a) A child born outside of the United States of alien parents, or of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is deceased; or

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if

(4) Such naturalization takes place while such child is under the age of eighteen years; and

(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.

(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody of his adoptive parent or parents, pursuant to a lawful admission for permanent residence.

See Section 321 of the INA of 1952, Pub. L. 82–414 (PDF), 66 Stat. 163, 245 (June 27, 1952), as amended by Pub. L. 95-417 (PDF), 92 Stat. 917, 918 (October 5, 1978), the INA Amendments of 1981, Pub. L. 97-116 (PDF), 96 Stat. 1611, 1620 (December 29, 1981), the INA Amendments of 1986, Pub. L. 99-653 (PDF), 100 Stat. 3655, 3658 (November 14, 1986), and the Immigration Technical Corrections Act of 1988, Pub. L. 100-525 (PDF), 102 Stat. 2609, 2617-18 (October 24, 1988). For more information on specific requirements during different historical periods before the CCA, see Appendix: Nationality Chart 3 - Derivative Citizenship of Children [12 USCIS-PM H.3, Appendices Tab]. For more information on applicability to adopted children, see Appendix: How Previous Citizenship Provisions Apply to Adopted Children [5 USCIS-PM F, Appendices Tab].

[^ 3] Former Section 320 of the INA, before amendment by the CCA, provided that:

(a) A child born outside of the United States, one of whose parents at the time of the child's birth was an alien and the other of whose parents then was and never thereafter ceased to be a citizen of the United States, shall, if such alien parent is naturalized, become a citizen of the United States, when-

(1) such naturalization takes place while such child is under the age of eighteen years; and

(2) such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of naturalization or thereafter and begins to reside permanently in the United States while under the age of eighteen years.

(b) Subsection (a) of this section shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent, in the custody of his adoptive parents, pursuant to a lawful admission for permanent residence.

For more information on applicability to adopted children, see Appendix: How Previous Citizenship Provisions Apply to Adopted Children [5 USCIS-PM F, Appendices Tab].

[^ 4] See Matter of Baires-Larios (PDF), 24 I&N Dec. 467, 470 (BIA 2008).

[^ 5] See former INA 321(a)(1).

[^ 6] See former INA 321(a)(2).

[^ 7] See former INA 321(a)(3) (the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents).

[^ 8] See Nehme v. INS, 252 F.3d 415, 425–26 (5th Cir.2001) (holding that legal separation under former INA 321(a)(3) means “a formal, judicial alteration of the marital relationship” (emphasis in original)). See Johnson v. Whitehead, 647 F.3d 120, 125-26 (4th Cir. 2011) (citing cases that parents had to be married at one time to meet legally separated requirement). See Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir. 2003) (natural parents never married and therefore could not legally separate). See Thompson vs. Lynch, 808 F.3d 939 (1st Cir. 2015).

[^ 9] See Nehme v. INS, 252 F.3d 415, 425–26 (5th Cir.2001). See Brissett v. Ashcroft, 363 F.3d 130, 133-34 (2nd Cir. 2004).

[^ 10] See United States v. Mayea-Pulido, 946 F.3d 1055, 1064 (9th Cir. 2020), where the Court held that “a nonmarital child would automatically derive citizenship under [former INA 321(a)(3)] if his parents later married and then legally separated, the same as a marital child whose parents were married at his birth but later separated.” See Levy v. U.S. Attorney Gen., 882 F.3d 1364, 1368 (11th Cir. 2018), holding that “the clause does not require that a child be born into wedlock: a child born out of wedlock whose parents later marry and legally separate qualifies” under former INA 321(a)(3).

[^ 11] See Matter of Baires-Larios (PDF), 24 I&N Dec. 467 (BIA 2008), reaffirmed by Matter of Douglas (PDF), 26 I&N Dec. 197 (BIA 2013).

[^ 12] See Matter of M-, 3 I&N Dec. 850 (BIA 1950).

[^ 13] See former INA 321(a)(3) (the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents).

[^ 14] See Section F, Definition of Reside Permanently [12 USCIS-PM H.7(F)].

[^ 15] See Matter of M-, 3 I&N Dec. 850 (BIA 1950).

[^ 16] See Bagot v. Ashcroft, 398 F.3d 252, 259 (3rd Cir. 2005) (father had legal custody of the child under the “actual uncontested custody” standard where the child lived with him and no one contested the father’s custody). See Garcia v. USICE, 669 F.3d 91, 97 (2nd Cir. 2011).

[^ 17] See Bustamante-Barrera v. Gonzales, 447 F.3d 388, 396 (5th Cir. 2006). See U.S. v. Casasola, 670 F.3d 1023, 1029 (9th Cir. 2012). See the Geographic Boundaries of United States Courts of Appeals and United States District Courts (PDF) website.

[^ 18] For example, a notarized letter from the mother granting custody of the child to the father is insufficient to change a pre-existing judicial custody determination granting legal custody to the mother, unless state law provides otherwise.

[^ 19] See, for example, Pina v. Mukasey, 542 F.3d 5 (1st Cir. 2008), which found derivative citizenship where the father was a U.S. citizen, child was living with the mother, but there was an informal agreement to share custody, and Massachusetts statutes and cases favored agreements between the parents as to legal custody of the child.

[^ 20] The Latin phrase “nunc pro tunc,” translated as “now for then,” denotes that an act has retroactive legal effect through a court’s inherent power. See Black’s Law Dictionary (12th ed. 2024).

[^ 21] See Padilla Carino v. Garland, 997 F.3d 1053 (9th Cir. 2021) (holding that Congress did not intend for this type of nunc pro tunc order). See Fierro v. Reno, 217 F.3d 1 (1st Cir. 2000) (refusing to recognize a nunc pro tunc change of custody for purposes of derivative citizenship because it would “allow ... state court[s] to create loopholes in the immigration laws on grounds of perceived equity or fairness” and “a nunc pro tunc order … is not binding under federal law”). See Bustamante-Barrera v. Gonzales, 447 F.3d 388, 401 (5th Cir. 2006) (“a nunc pro tunc order to recognize derivative citizenship would create the potential for significant abuse and manipulation of federal immigration and naturalization law”). However, in Minasyan v. Gonzales, 401 F.3d 1069, 1079 (9th Cir. 2005), the court found that a dissolution of marriage order entered after the petitioner’s 18th birthday “establishes the date of the legal separation for purposes of California law, … it is [also] sufficient to establish the date for purposes of Minasyan’s derivative citizenship under [Section] 321(a).” A person derived citizenship under former INA 321 so long as all requirements were met before the person turned 18.

[^ 22] See former INA 321(a)(3) (the naturalization of the mother when the child was born out of wedlock and paternity has not been established by legitimation).

[^ 23] See Section F, Definition of Reside Permanently [12 USCIS-PM H.7(F)].

[^ 24] See INA 101(c)(1). See Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section B, Legitimated Child [12 USCIS-PM H.2(B)].

[^ 25] The second clause of former INA 321(a)(3) referred to “the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation.”

[^ 26] See Matter of Cross (PDF), 26 I&N Dec. 485 (BIA 2015).

[^ 27] See 8 CFR 341.2(c).

[^ 28] Former INA 320 also states that the child may derive citizenship if the child “begins to reside permanently in the United States while under the age of eighteen years.”

[^ 29] See Nwozuzu v. Holder, 726 F.3d 323 (2nd Cir. 2013) (“[B]egins to reside permanently” does not require “lawful permanent resident” status… [but requires]… “some objective official manifestation of the child’s permanent residence.” Also holding that failure to become a lawful permanent resident before turning 18 years old does not bar the child from claiming derivative citizenship from his parents.). See Cheneau v. Garland, 997 F.3d 916, 918 (9th Cir. 2021) (holding that an immigrant could derive citizenship if the parent was naturalized and the child thereafter began to reside permanently in the United States, irrespective of whether the child had been lawfully admitted for permanent residence and “the phrase ‘or thereafter begins to reside permanently in the United States,’ does not require that the child have necessarily been granted lawful permanent residency, although the child must have demonstrated an objective official manifestation of permanent residence.”).

[^ 30] For questions about which other circumstances may qualify as an objective official manifestation of permanent residence, officers should contact their local counsel in the Office of Chief Counsel (OCC).

[^ 31] See Matter of Nwozuzu (PDF), 24 I&N Dec. 609 (BIA 2008). See 8 CFR 103.10(b).

[^ 32] Although many adopted children could not derive citizenship, adoptive parents could apply for naturalization on behalf of certain adopted children. For more information, see Appendix: How Previous Citizenship Provisions Apply to Adopted Children [5 USCIS-PM F, Appendices Tab].

[^ 33] For example, a child who was born out of wedlock to noncitizen parents, whose paternity was not established by legitimation, who was adopted by the stepfather, and whose mother later naturalized, could still derive citizenship from the mother because the adoption did not alter the child’s legal relationship with the mother. See Appendix: Nationality Chart 3 - Derivative Citizenship of Children [12 USCIS-PM H.3, Appendices Tab].

[^ 34] See Section 5 of Pub. L. 95-417 (PDF), 92 Stat. 917, 918 (October 5, 1978). The 1978 amendment limited this benefit to a child adopted while under 16 years of age. This restriction was removed by the INA Amendments of 1981, Pub. L. 97-116 (PDF), 96 Stat. 1611 (December 29, 1981), but is also included in the definition of “child” in INA 101(c).

[^ 35] See 8 CFR 341.1. 

[^ 36] See 8 CFR 103.2(a)(1).

[^ 37] See INA 103(a)(1) and INA 104(a)(3).

[^ 38] See INA 341(a).

[^ 39] Military service members may appear at any stateside USCIS ASC with or without an appointment. See Part I, Military Members and their Families, Chapter 6, Required Background Checks, Section C, Ways Service Members may Meet Fingerprint Requirement [12 USCIS-PM I.6(C)].

[^ 40] See 8 CFR 103.2(b)(9). See Volume 1, General Policies and Procedures, Part C, Biometrics Collection and Security Checks, Chapter 2, Biometrics Collection [1 USCIS-PM C.2].

[^ 41] See 8 CFR 103.2(a)(2). See Volume 1, General Policies and Procedures, Part B, Submission of Benefit Requests, Chapter 2, Signatures [1 USCIS-PM B.2].

[^ 42] See 8 CFR 103.2(b)(13)(ii). See Volume 1, General Policies and Procedures, Part C, Biometrics Collection and Security Checks, Chapter 2, Biometric Collection, Section A, Biometric Services Appointments [1 USCIS-PM C.2(A)].

[^ 43] See 8 CFR 103.5 and 8 CFR 341.5(e). Although a person may file a motion to reopen a denial due to abandonment, such a denial may not be appealed to the Administrative Appeals Office. See 8 CFR 103.2(b)(15). Moreover, USCIS rejects any subsequent Form N-600, and instructs the applicant to submit a motion to reopen. See 8 CFR 341.5(e).

[^ 44] See 22 CFR 50.4.

[^ 45] See 8 FAM 101.1, Introduction to U.S. Passports and Consular Reports of Birth Abroad.

[^ 46] See 22 U.S.C. 2705.

[^ 47] See Matter of Villanueva (PDF), 19 I&N Dec. 101 (BIA 1984) (Unless void on its face, a valid U.S. passport issued to a person as a citizen of the United States constitutes conclusive proof of the person’s U.S. citizenship.). See 22 U.S.C. 2705 (A valid U.S. passport or CRBA have “the same force and effect as proof of United States citizenship” as Certificates of Naturalization or Certificates of Citizenship issued by USCIS.). See 22 CFR 50.2.

[^ 48] A U.S. passport or CRBA does not serve as evidence of citizenship for noncitizen nationals.

[^ 49] See 22 U.S.C. 211a. See 22 CFR 51.60. See INA 361. See Rules Governing the Granting, Issuing, and Verifying of United States Passports, 31 FR 10603 (PDF) (Aug. 5, 1966). See Chapter 3, U.S. Citizens at Birth (INA 301 and 309), Section D, Application for Certificate of Citizenship (Form N-600), Subsection 3, Request to Revoke U.S. Passport or Cancel Consular Report of Birth Abroad [12 USCIS-PM H.3(D)(3)].

[^ 50] The process to request cancellation of a CRBA to DOS is the same as that for a passport revocation. The same process should be followed to request the revocation of a parent’s or grandparent’s U.S. passport or CRBA, when USCIS, while adjudicating Form N-600, determines that it was issued illegally, fraudulently, or erroneously.

[^ 51] See INA 361.

[^ 52] See Matter of Villanueva (PDF), 19 I&N Dec. 101 (BIA 1984).

[^ 53] Officers may not accept an expired U.S. passport as sufficient evidence of citizenship. In these cases, officers may need to request other evidence of U.S. citizenship.

[^ 54] Generally, USCIS considers the adoption decree or order to be evidence of legal custody.

[^ 55] For more information about evidence for adopted children, see Volume 5, Adoptions, Part F, Citizenship for Adopted Children, Chapter 3, Eligibility, Documentation, and Evidence, Section B, Child Residing in the United States, Subsection 2, Certificate of Citizenship [5 USCIS-PM F.3(B)(2)]

[^ 56] For example, a certificate of recognition of adoption from the state court, or a copy of the state statute indicating that the state recognizes all foreign adoptions. To determine if the adopted child meets the requirements applicable to adopted children, USCIS reviews the file, including any evidence indicating that the child was admitted to the United States as a lawful permanent resident (LPR) through an adoption-based petition. See Volume 5, Adoptions, Part C, Child Eligibility Determinations (Orphan) [5 USCIS-PM C]. See Volume 5, Adoptions, Part D, Child Eligibility Determinations (Hague) [5 USCIS-PM D]. See Volume 5, Adoptions, Part E, Family-Based Adoption Petitions [5 USCIS-PM E].

[^ 57] As long as the state recognizes the adoption before the age of 18, the child has met this requirement for derivation under former INA 321.

[^ 58] See the instructions for the Application for Certificate of Citizenship (Form N-600).

[^ 59] See 8 CFR 341.2(a)(1). See Section I, Documentation and Evidence [12 USCIS-PM H.7(I)].

[^ 60] See 8 CFR 341.5(b) and 8 CFR 337.1. See INA 337. See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].

[^ 61] See INA 341(a).

[^ 62] See 8 CFR 341.5(d) and 8 CFR 103.3.