Policy Alert: USCIS Changes Requirements for Children Born to Unmarried Parents Outside the U.S. to Acquire Citizenship

April 20th, 2018 by SRW Lawyers

On April 18th, USCIS released policy guidance clarifying the requirements for children born to unmarried parents outside of the United States to acquire U.S. citizenship.  Specifically, the changes affect sections 301 and 309 of the Immigration and Nationality Act (INA), and address the following two issues:

  • Changes to physical presence requirements in acquisition of citizenship cases per the U.S. Supreme Court decision in Sessions v. Morales-Santana; and
  • Clarifications on what may qualify as a father’s written agreement of financial support for purposes of certain acquisition of citizenship cases.

Background: Acquiring U.S. Citizenship – Child Born Outside U.S. to Unmarried Parents

U.S. immigration laws have long included provisions allowing children who were not born in the U.S. or its outlying territories, who meet certain requirements, to acquire U.S. citizenship at birth through their U.S. citizen parent(s). Generally speaking, at least one parent must hold U.S. citizenship at the time of the child’s birth, and that parent must meet a residency requirement by showing that they spent a certain amount of time living in the U.S. Acquiring citizenship through a U.S. citizen parent is more complicated when the child in question was born out of wedlock.

Sessions v. Morales-Santana

Luis Ramón Morales-Santana was born in the Dominican Republican in 1962 to parents who were unmarried at the time of his birth. His mother was a citizen of the Dominican Republic, and his father was a United States citizen by birth who left the country 20 days before his 19th birthday (this 20 days ends up being significant). Morales-Santana became a legal permanent resident of the United States and was later convicted of multiple felonies. When the government sought to remove him, Morales-Santana argued that he was not a removable alien because he had derived citizenship through his father at birth.

The applicable rule from the 1952 edition of INA section 301(a)(7) read:

“The following shall be nationals and citizens of the United States at birth… a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.”

However, INA section 309(c) provided an exception for children born out of wedlock to U.S. citizen mothers, which read:

“…a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.”

Morales-Santana’s father had left the U.S. twenty days before meeting the five-year requirement (he was not in the U.S. for at least five years after turning fourteen), and thus an immigration judge ruled that Morales-Santana was not eligible for citizenship through his father. Subsequently, he filed suit in 2010, claiming that the gender-based difference in requirements was a violation of the Constitution’s equal protection guarantee. He also argued that the appropriate legal remedy would be for the one-year residency requirement for mothers to apply to fathers as well.

In a 6-2 ruling, the Supreme Court sided with Morales-Santana, striking down the gender-based difference in requirements. In the majority’s opinion, Justice Ginsburg wrote that “discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.”

Regarding the appropriate legal remedy, the court ruled 8-0 that Congress would need to determine a “uniform prescription” by using the same requirement for both mothers and fathers. The court’s opinion stated that although generally “extension [of favorable treatment], rather than nullification, is the proper course,” that would have led to a version of the INA requiring five years of residency from parents who were married when their child was born, and only one year from parents who had children out of wedlock. Justice Ginsburg’s opinion further noted that the “disadvantageous treatment of marital children in comparison to nonmarital children is scarcely a purpose one can sensibly attribute to Congress,” resulting in the Court’s decision to temporarily adopt the post-1986 general rule of a five-year residency requirement, with at least two years taking place after the parent turned fourteen, until Congress settled the issue. Unfortunately for Morales-Santana, the Court’s decision still did not result in his citizenship.

Changes to Physical Presence Requirements Resulting from Morales-Santana

Today, children born out of wedlock to a U.S. citizen mother and foreign national father will face more stringent requirements to acquire citizenship thanks to Sessions v. Morales-Santana.

According to the USCIS policy alert, “Sessions v. Morales-Santana applies the physical presence requirement (at least 5 years, of which at least 2 years must be after age 14) in INA 301(g) to all cases involving a child born out of wedlock to one U.S. citizen parent and one foreign national parent outside of the United States on or after June 12, 2017, regardless of whether the child seeks to derive citizenship from a U.S. citizen mother or U.S. citizen father.” The change will only be applied prospectively, so the physical presence requirement of 1 continuous year in INA 309(c) remains in effect in such cases where the child was born to an unwed citizen mother prior to that date.

Background on Written Agreements of Financial Support for Acquisition of U.S. Citizenship

U.S. immigration law requires certain evidence of financial support for acquisition of citizenship cases involving a child born out of wedlock to a U.S. citizen father and a foreign national mother. Specifically, INA section 309(a)(9) requires that the U.S. citizen father, unless deceased, “has agreed in writing to provide financial support for the person until the person reaches the age of 18 years.”

The new USCIS policy alert clarifies the requirements for a “written agreement of financial support.” Specifically, the policy alert advises:

  • The statutory phrase “has agreed in writing to provide financial support” under INA 309 includes documentary evidence existing before the child’s 18th birthday that shows the child’s father accepted the legal obligation to support the child.
  • A separate agreement or contract is not required for the father to satisfy the requirement under INA 309(a)(3) in cases where there is documentary evidence showing the child’s father accepted the legal obligation to support the child (before age 18) or the obligation to provide such support was imposed on the father by a court of competent jurisdiction or an administrative governmental agency empowered to adjudicate such issues.

The intent of this requirement is to ensure that children born outside the U.S. out of wedlock who acquire citizenship through their fathers do not become public charges.

Complexity of Acquisition of Citizenship Cases

The requirements for children born outside the U.S. to acquire citizenship are complex, particularly when a child’s parents are not married at the time of birth. If you have questions about acquiring citizenship for yourself or your child, or about what this policy guidance may mean for you, please reach out to our office to schedule a consultation with an experienced immigration attorney.

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