Are my children who were born overseas US citizens, or can I help them become U.S. citizens?
CAUTION: This is a very complex area of the law. Be careful about trying to do this on your own. Get legal advice, if you can, before seeking citizenship of a child.
Which children born abroad are U.S. citizens at birth?
Certain children born outside the U.S. to U.S. citizens are citizens from the moment they are born. The law on this has changed many times since the early 1900’s. The law in effect on the date of the child’s birth is the law that controls. This discussion refers to the law that has been in affect since November 14, 1986. A child born outside the U.S. after that date is a U.S. citizen at birth in the following situations:
- The child’s parents were married before the child was born, and both are U.S. citizens. At least one of the parents has lived at some point in the U.S. before the child’s birth.
- The child’s parents were married before the child was born. One parent is U.S. citizen and the other is a U.S. national. The U.S. citizen parent lived continuously for at least one year in the U.S., or a U.S. possession, at some point before the child’s birth.
- The child’s parents were married before the child was born. One parent is U.S. citizen and the other is a noncitizen. Before the child’s birth the U.S. citizen parent lived for at least five years in the U.S. At least two of those years were when the U.S. citizen parent was older than 14.
- The child’s parents were unmarried when the child was born. The child’s mother is a U.S. citizen. The mother lived continuously for at least one year in the U.S. at some point before the child’s birth.
- The child’s parents were unmarried when the child was born. Only the child’s father is a U.S. citizen. Before the child’s birth, the father lived for at least five years in the U.S. At least two of those years were when the father was older than 14. Time living abroad while on active duty in the U.S. military counts as time living in the U.S. Before the child’s 18th birthday, the father legitimated the child: • through marriage, or
• through the appropriate legal process in the country where either the child or the father lived.
Or the father acknowledged paternity in writing under oath, or paternity was established by a competent court, and the father agreed in writing to financially support the child until the child turned 18.
A child abroad who is a U.S. citizen from birth can apply (or his parents can apply) for a certificate of birth abroad, and for a U.S. passport, from the nearest U.S. consulate.
Again, applying these laws can be complicated, especially those described above at numbers 2 -5. So it is best to speak with an experienced immigration attorney. She will help you to better understand the process. Also, speak with an immigration lawyer if you have questions about the citizenship of a child born abroad to a U.S. citizen prior to November 15, 1986. The rules were different then.
Can children born abroad who are not U.S. citizens at birth become citizens?
A member of the U.S. military deployed outside the U.S. may have a child born abroad who is not a U.S. citizen at birth. For example,
- neither the U.S. service member or the other parent were U.S. citizens when the child is born, or
- the U.S. service member married a noncitizen while stationed outside the U.S. and the noncitizen has children who became the U.S. service member’s stepchildren, or
- the U.S. service member adopts a child who was born abroad.
Here are some common scenarios, followed by brief explanations.
A U.S. service member has a biological child.
Neither the U.S. service member nor the other parent were U.S. citizens when their child was born. The child will not be a U.S. citizen at birth. The child may be able to obtain U.S. citizenship later in a variety of ways.
- The service member may be able to apply for his own U.S. citizenship to help the child gain citizenship. A U.S. service member who has permanent resident status (the green card) and has served in the military for at least one year can file for naturalization. The usual requirement is 5 years of legal residency and 2.5 years of physical presence in the U.S. The service member can avoid this normal rule by filing for naturalization while serving, or within six months of an honorable discharge. He will also avoid the usual application fee. These requirements still apply:
• have good moral character,
• speak, read and write English, and
• pass a U.S. civics test.
In some cases the service member can apply for naturalization without first becoming a permanent resident. This rule may apply where the servicemember:
• has been in active duty status at some point after September 11, 2001, or during any prior “period of hostilities,”
• is serving honorably or received an honorable discharge, and
• enlisted, extended enlistment, or reenlisted while in the U.S. or certain U.S. possessions.
The requirements to have good moral character; speak, read and write English; and pass a U.S. civics test still apply.
Assume that the service member becomes a U.S. citizen. Then, under official orders the child is authorized to, and is actually living with, the service member abroad. Then the service member parent can apply for the child’s naturalization. Assuming all of these factors, the child is not required to first gain permanent residency or to have been physically present in the U.S.
- What if the service member cannot become a U.S. citizen? A service member may be temporarily ineligible for U.S. citizenship. For example, he has a former disqualifying criminal conviction. Or he cannot read and write English well enough to pass the test. In that case a service member with a green card may do one of the following.
- He may file a visa petition (USCIS form I-130) for the child to become a permanent resident. However, there is a several years long waiting list to immigrate as the child of a permanent resident. Once the child reaches the top of the waiting list, the service member must fill out more papers. This will lead to an immigrant visa interview for the child. The child must travel to the U.S. within six months of the date the U.S. consulate issues his immigrant visa. The child will become a permanent resident upon entry to the U.S. Later the permanent resident child can become a U.S. citizen automatically through the parent’s naturalization. The parent must become a naturalized citizen:
• after the child immigrates to the U.S.,
• before the child turns 18, and
• while the child is living with the parent.
Then the parent can help the child apply for a certificate of citizenship, or for a U.S. passport, as proof of the child’s citizenship status.
- Here is another scenario. The permanent-resident parent files the I-130 visa petition for the child. While the child is on the waiting list, the service member becomes eligible and naturalizes. Under official orders, the child is authorized to live with (and is actually living with) the service member abroad. The child will be eligible to naturalize while abroad.
Suppose this service member has returned to the U.S. leaving the child abroad with the other parent. The child could get an immigrant visa shortly after the service member’s naturalization. Then child would become a U.S. citizen immediately upon entering the U.S. with the immigrant visa. The service member can help the child apply for a certificate of citizenship, or for a U.S. passport, as proof of the child’s citizenship status.
A U.S. service member gains a stepchild through marriage to that child’s parent.
In general, if a stepchild is over 18 when a U.S. citizen or permanent resident marries the child’s parent, the stepchild gains no immigration benefits through the marriage. Only the child’s parent has the ability to confer immigration benefits on the child. The natural parent can gain her own immigration status through marriage to the U.S. citizen or permanent resident.
If the stepparent relationship was created before the stepchild’s 18th birthday, the stepchild’s ability to benefit from the relationship depends on the U.S. service member’s immigration status, as follows.
- The U.S. service member stepparent is a permanent resident. The stepchild will not become a U.S. citizen through the marriage. However, the permanent resident service member may file a visa petition on behalf of the stepchild. Or he can file on behalf of the stepchild’s parent and including the child. This will allow the child to become a permanent resident.
Suppose that the U.S. service member naturalizes while the stepchild is waiting to come to the top of the waiting list. The child may immigrate more quickly than if the service member had not become a U.S. citizen. But the child will not become a U.S. citizen automatically upon immigrating to the U.S. Instead, the stepchild may apply for U.S. citizenship when he turns 18. Or if the child’s biological parent naturalizes while the child is under 18, the stepchild will become a U.S. citizen at the same time.
- The U.S. service member stepparent is a U.S. citizen by birth or naturalization. The U.S. citizen service member can file a visa petition for the stepchild. There is no limit to the number of stepchildren of U.S. citizens who can immigrate to the U.S. each year. So there is no waiting list. But there are still application backlogs, so the process can take from 6 to 18 months. The child will not automatically become a U.S. citizen upon immigrating to the U.S. Instead, the stepchild can apply for U.S. citizenship when he turns 18. Or if the child’s parent naturalizes while the child is under 18, the child will become a U.S. citizen at the same time.
- The U.S. service member stepparent is not yet a permanent resident. The child will not be able to gain any legal status through service member. The service member must first become a permanent resident or U.S. citizen. Read about how certain active duty service members can become U.S. citizens, due to their service during certain periods of hostilities, even if they are not yet permanent residents.
A U.S. service member adopts a child.
In general, adoption of a child by a U.S. citizen or permanent resident gives no immigration benefit to the adopted child unless the adoption is finalized before the child turns 16. An exception to this rule exists for a child adopted before the child’s 18th birthday, if:
- the child has a younger sibling being adopted by the same adoptive parent, and
- the adoption process for both children is completed before the younger child’s 16th birthday.
If the adoption process is completed before the required age limit(s), the adoptive child(ren)’s ability to benefit from the relationship depends on the U.S. service member’s immigration status, as follows.
- The U.S. service member stepparent is a permanent resident. The service member must wait to file a visa petition for the adopted child until the service member has had the child in her legal custody for two years. This can include time prior to the adoption becoming final, such as time when the service member has legal guardianship, or a temporary adoption decree. Also, the service member must have had physical custody of the child during the two year period. Then, the service member can file the USCIS I-130 visa petition.
Due to limits on the number of children of permanent residents who can immigrate each year, the child will have to wait several years to reach the top of the immigration waiting list. If the service member naturalizes while any children are on the waiting list to immigrate, the children can become permanent residents more quickly and will become U.S. citizens automatically upon their entry into the U.S. with their immigrant visas.
- The U.S. service member is a U.S. citizen by birth or naturalization. A child who is adopted under the age of 18 will become a U.S. citizen if:
• the adopting service member has lived for at least five years in the U.S., at least two years of which were when the U.S. citizen parent was older than 14. (Time living abroad while on active duty in the U.S. military counts as time living in the U.S. In the case of a naturalized citizen, only time after attaining citizenship applies.); and
• the child lives with the U.S. citizen service member abroad pursuant to official orders.
The service member, while still abroad, can file for a certificate of citizenship and U.S. passport on behalf of the adopted child abroad. The child does not have to travel to the U.S. before attaining citizenship.
- The U.S. service member adoptive parent is a U.S. citizen by birth or naturalization, but dies while serving honorably while on active duty. The adopted child can apply for U.S. citizenship. This rule also applies where the deceased servicemember / adoptive parent was awarded U.S. citizenship posthumously.
Speak with an experienced immigration attorney, if you can, to better understand the process of applying for a child’s legal status. Your local civilian legal services office should be able to refer you to an experienced immigration attorney. Or contact the USCIS’s Military Help Line 1-877-CIS-4MIL (1-877-247-4645).