USCIS SAYS CERTAIN CHILDREN OF U.S. GOVERNMENT EMPLOYEES AND U.S. ARMED FORCES MEMBERS BORN OVERSEAS ARE NOT AUTOMATICALLY U.S. CITIZENS

Written by: Taher Kameli, Esq

While one can easily criticize many of the anti-immigration policies issued by the Trump administration for their substantive positions, to the extent that government policy consistency is beneficial, you cannot fault the Trump administration for lack of general consistency on immigration issues.  Whatever the immigration issue, from migrant rights to green card rights to citizenship rights, the Trump administration will generally consistently adopt the position on the issue that restricts, and is adverse to, such migrant rights, green card rights, or citizenship rights. As another example of the Trump administration’s generally consistent anti-immigration policies, U.S. Citizenship and Immigration Services (USCIS) has revised its prior position and now says that certain children of U.S. government employees and U.S. armed forces members born overseas are not automatically U.S. citizens.     

As part of a “Policy Alert” issued on August 28 on the subject of “Defining ‘Residence’ in Statutory Provisions Related to Citizenship”, the USCIS stated, “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. . . . 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 under INA [Immigration and Nationality Act] 322 . . . , 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. . . . Children born outside the United States who did not acquire U.S. citizenship at birth have two methods by which they could become U.S. citizens.  The first method permits children to automatically become U.S. citizens under INA 320. Among other eligibility criteria, the statute requires the child to be ‘residing in the United States’ . . . The second method is for the U.S. citizen parent of a child ‘who has not acquired citizenship automatically under section 320’ to apply for U.S. citizenship on the child’s behalf under INA 322.  To be eligible for citizenship under INA 322, the statute requires the child to be ‘residing outside of the United States’ . . . 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’ for purposes of INA 322. . . . USCIS determined that ‘residing in the United States’ for purposes of naturalization under INA 320 should . . . be interpreted to include children of U.S. military and government employees stationed outside of the United States who are residing outside of the United States with their parents.  However, as of October 29, 2019, USCIS is no longer committed to this reasoning because the prior USCIS policy guidance is in conflict with several provisions of the Immigration and Nationality Act (INA), especially with changes to the acquisition of citizenship statutes that occurred in 2008, after the initial policy determination in 2004. . . . USCIS rescinded the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered ‘residing in’ the United States”.     

To summarize, previously, children of U.S. government employees and members of the U.S. armed forces who were employed or stationed outside of the United States were treated as “residing in the United States” and automatically U.S. citizens under “INA 320”.  USCIS has now “rescinded” this policy (effective October 29), and children of U.S. government employees and members of the U.S. armed forces who are employed or stationed outside of the United States are no longer treated as “residing in the United States” to obtain automatic U.S. citizenship under “INA 320”; instead, these children must apply for U.S. citizenship pursuant to naturalization proceedings before age 18 under “INA 322”.    

This new policy from USCIS concerning citizenship rights has been criticized.  Josh Blackman, a professor at South Texas College of Law, stated, “It’s not denying people citizenship, but it’s making it happen through a process not automatic by the virtue of birth. . . . The parents have to submit paperwork to make their kids citizens. . . . The optics here are pretty awful”.  Tyler Moran, director of the Immigration Hub, a pro-immigration group, stated, “It’s creating a bureaucratic maze for people to attain citizenship”. Michigan Democratic Congressman Dan Kildee stated, “This Trump Administration policy is a slap in the face to American troops and diplomats serving our country overseas. . . . It’s cruel, unpatriotic and wrong”.

The generally consistent anti-immigration policies of the Trump administration should put immigrants on advance notice that it will be a constant struggle during the “Trump years” to maintain their immigrant rights.  With this advance notice, immigrants need to be prepared and retain qualified counsel, such as the Law Offices of Kameli and Associates, which has years of experience in successfully representing immigrants, to represent them.  If you need help with any immigration issue, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for assistance.