#USCIS Badly Written ‘Policy Alert’ on Citizenship Blows Up, Causes Wildfire

August 29, 2019 By in Americans Abroad, Federal Agencies, Immigration, Realities of the FS, State Department, U.S. Missions Tags: , , , , , ,

 

 

The U.S. Citizenship and Immigration Services published a Policy Alert on August 28, 2019 on “Defining Residence in Statutory Provisions Related to Citizenship.”  The same day, the agency had to issue a USCIS Policy Manual Update and the Acting USCIS Director Ken Cuccinelli subsequently had to issue a statement clarifying the policy update, “This policy update does not affect who is born a U.S. citizen, period.  This only affects children who were born outside the United States and were not U.S. citizens.  This does NOT impact birthright citizenship.  This policy update does not deny citizenship to the children of US government employees or members of the military born abroad.  This policy aligns USCIS’ process with the Department of State’s procedure, that’s it.”
That’s it! The end. But that doesn’t make it so. There was a hashtag trending already.
So, first, we need to point out that the Foreign Affairs Manual (see 8 FAM 301.1) already dispels the myth that birth on a U.S. military base outside of the United States or birth on U.S. embassy or consulate premises abroad constitutes as “birth in the United States:”

(1) Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment.  A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth;

(2)  The status of diplomatic and consular premises arises from the rules of law relating to immunity from the prescriptive and enforcement jurisdiction of the receiving State; the premises are not part of the territory of the United States of America.

Children born at U.S. military installations overseas or at U.S. diplomatic and consular premises are not born in the United States and do not/do not acquire U.S. citizenship by reason of birth in the United States or outlying possessions; they could acquire citizenship through one or both their U.S. citizen parents.  We’re throwing this out there because various reporting appears to perpetuate the misconception that birth in these premises accord children their U.S. citizenship; it doesn’t.
Now, we’ve read USCIS’s multiple justifications for this update (pages 9-10), and we still don’t understand the reasoning for rescinding the previous interpretation. What precipitated this update? If true that this affects only approximately a hundred annually, why is this update even necessary?  Supposedly, the original  policy determination was made in 2004, and there were changes in 2008, but the previous Administration did not clean it up or reconcile the conflicts in the various  parts of the Immigration Act so the current Administration is now updating the policy? That’s basically what USCIS is saying on the Alert.
Also, the previous policy apparently “produced confusion” which obviously, this policy update does not.
One blog pal who did consular work called it “messy and contradictory prior guidance.” But we think part of the problem is that this Administration has such a poor record on immigration that it even when it is providing a policy guidance to clean up or sort out the conflicts in the law, it causes a wildfire in our heads.
We have some thoughts about this updated USCIS policy; just that  – some thoughts based on the published regs because we’re nerdy that way and the wildfire caused by this interests us. That USCIS Policy Alert is frankly, a convoluted piece of work but it makes two points:  one, it makes a distinction between a “residence” and “physical presence” in the United States, and two, it talks about change specific to INA 320.

Residence vs. Physical Presence

The USCIS Policy Alert basically says that an individual may be physically present in the United States for summer camps or while visiting relatives for weeks or even months but those would not constitute a residence  for the purposes of transmission of citizenship. Page 4 of the Alert notes:

“Residence is more than a temporary presence or a visit to the United States. Therefore, temporary presences and visits are insufficient to establish residence for the purposes of transmitting citizenship. For example, someone who resides along the border in Mexico or Canada, but works each day in the United States, cannot use his or her workplace to establish a residence.”

We found a similar language in the State Department’s 8 FAM 301.7-4(B)  Birth in Wedlock or of Wedlock to Two U.S. Citizen Parents, updated in June 2018, which notes the following:

Residence is not determined solely by the length of time one spends in a place, but also takes into account the nature and quality of the person’s connection to the place.  This is a very fact-specific test.  However, at all times and in all cases, residence involves the connection to a specific physical place.  Residence is not a state of mind that travels with a person.  Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c).

8 FAM 301.7-4(B) also notes that “a child born abroad to two U.S. citizens acquires U.S. citizenship at birth if, before the child’s birth, one of the parents had a residence in the United States or its outlying possessions.  No specific period of residence is required.”
Is that why USCIS want to clarify this? The USCIS Policy Alert description of documents required to demonstrate residence is almost identical to the State Department’s list enumerated in the 8 FAM 301.7-4(B) section, by the way.
This FAM citation also helpfully points out:

The concept of “residence” should not be confused with the term “physical presence” which is used elsewhere in the INA as the test for transmitting citizenship, and which is a more literal concept that may be easier to apply.  INA 301(g), for example, requires that when only one parent is a U.S. citizen, that citizen parent must have a specific duration of physical presence — not residence–in the United States prior to the birth of the child in order to transmit U.S. citizenship to the child.  Unlike in INA 301(g), in INA 301(c), Congress chose to use the term “residence,” and not set a time requirement.  The rationale being that the nature of a residence presupposes the sort of relationship to a place that mere physical presence does not.

INA 320/INA 322

The USCIS Policy Manual Update explains the Policy Alert better:
      • Clarify that temporary visits to the U.S. do not establish U.S. residence;
      • Explain the distinction between residence and physical presence in the United States; and
      • Explain that USCIS no longer considers children who are living abroad with a parent who is a U.S. government employee or U.S. service member as “residing in the United States” for purposes of acquiring citizenship under INA 320.
That’s simple enough when put that way. It also links to Automatic Acquisition of Citizenship after Birth (INA 320) and the  General Requirements for  Genetic, Legitimated, or Adopted Child Automatically Acquiring Citizenship after Birth.
So we looked up INA 320 in the FAM. Per 8 FAM 301.10-1(A), the Child Citizenship Act of 2000 (CCA), Public Law 106-395, which took effect February 27, 2001, amended INA 320 to extend U.S. citizenship automatically to certain foreign-born children of U.S. citizens.  It extended citizenship to three categories of children:

(a)  Children of naturalized citizens;
(b)  Children adopted abroad by U.S. citizens; and
(c)  Children born abroad to a U.S. citizen and who do not otherwise acquire U.S. citizenship at birth under INA 301 as made applicable by INA 309.

The law also amended INA 322 to apply only to children who reside outside the United States and who do not have Lawful Permanent Resident (LPR) status; amended INA 322 to provide for expeditious naturalization to children born outside the United States and who do not have LPR status.;  and stepchildren cannot avail themselves of the CCA unless they have been adopted by the U.S. citizen step parent.
The FAM notes that children acquiring U.S. citizenship under the Child Citizenship Act are not eligible for form FS-240, Consular Report of Birth Abroad of Citizen of the United States of America or form DS-1350, Certification of Birth, which are processed by consular sections at US embassies and consular posts overseas.
The acquisition of U.S. citizenship under the revised INA 320 or revised INA 322 is a form of expedited administrative naturalization.  The FAM cite further notes that Section 322 INA is administered exclusively by U.S. Citizenship and Immigration Services (USCIS).
So it looks like what this policy update does in attempt to clarify what “residence” means, and it removes the exception  under the Child Citizenship Act of 2000 (CCA) for children of U.S. government employees and U.S. armed forces members residing outside the United States. One of the requirements under INA 320 is that “The child is residing in the United States in the legal and physical custody of the U.S. citizen parent. [5] “ 
One source who did consular work told us that it may be that U.S. military serving overseas are considered resident on, for instance, a U.S. base in Germany. Well, in fact, the USCIS still has this in their footnotes as of this writing: 

“5. [^] See INA 320. See 8 CFR 320.2. Children of U.S. government employees temporarily stationed abroad are considered to be “residing in the United States” for purposes of acquisition of citizenship under INA 320. 

We borrowed another head which happens to be a consular one, and he/she thought that with this policy change of what is a “residence,” U.S. citizens could not just be on TDY to the United States or on a visit to obtain citizenship for their children, they have to be residing in the United States. Whereas in the past, military members or FS members may be able to arrive in the US. and get naturalization for their children then return overseas to continue their assignment, it appears that this new update would make it so that U.S. citizen parents have to do the naturalization on behalf of their minor children at the end of their overseas tours and when they are permanently relocating to the United States. At least, that’s how we’re reading this policy update at this time. We’re happy to entertain other interpretations.
We’ve checked the USCIS website to see what this means in terms of processing fees and time.  The USCIS website which has not been updated yet as of last night notes that per INA 320, the child must be under 18 years of age and must be a legal permanent resident in order to qualify. In order to obtain a Certificate of Citizenship, a child who has automatically acquired citizenship must follow the instructions on the Application for Certificate of Citizenship (Form N-600). This cost $1,170 and the fee applies even if the applicant is filing as an adopted child or as a child of a veteran or member of the U.S. armed forces. Processing time for an N-600 case according to USCIS is between 5 Months to 24.5 Months (same for Newark, NJ, and WashDC but may vary for other areas).
Effective October 29, 2019, USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring citizenship under INA 320, but they may still apply under INA 322.

In general, INA 322 provides that a parent who is a U.S. citizen (or, if the citizen parent has died during the preceding five years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born and residing outside of the United States who has not acquired citizenship automatically under INA 320. The child must naturalize before he or she reaches 18 years of age.

See Children of Service Members Residing Abroad (INA 322). (Form N-600K) This also cost $1,170. Processing time for an N-600K case in El Paso, TX is between 6.5 Months to 28.5; same processing time for Los Angeles, CA, although the time may vary in other locations; we haven;’t checked all the locations).
Based on USCIS info, the processing fees are the same either way, but applications under INA 322 may take slightly longer than applications INA 320.  Are there any other ways where the INA 322 process is different or more challenging to applicants? We’ll update this post if we learn anything more.

 

Related items:

301.7 IMMIGRATION AND NATIONALITY ACT OF 1952

301.1 (U) ACQUISITION BY BIRTH IN THE UNITED STATES

8 FAM 301.10 ACQUISITION OF U.S. CITIZENSHIP BY THE CHILD CITIZENSHIP ACT