USCIS Updates Guidance on Legal and Physical Custody Rules for Children Acquiring U.S. Citizenship

On November 14, 2024, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance in the USCIS Policy Manual regarding the legal and physical custody requirements for children acquiring U.S. citizenship under sections 320 and 322 of the Immigration and Nationality Act (INA). This update also provides expanded guidance on adjudicating derivation of U.S. citizenship under former INA section 321 for events occurring before the Child Citizenship Act of 2000.

Key Highlights of the Update:

• Clarification of Legal and Physical Custody Requirements: USCIS has refined its definitions and criteria for determining legal and physical custody of children by U.S. citizen parents, ensuring consistent adjudication of citizenship claims.

• Recognition of Actual Uncontested Custody: In situations where no judicial determination exists, and the relevant jurisdiction's law does not specify legal custody, USCIS will consider a U.S. citizen parent with actual uncontested custody to have legal custody for citizenship acquisition purposes.

• Physical Custody Definition: The update specifies that a U.S. citizen parent is deemed to have physical custody when the child resides or physically lives with them.

• Guidance on Retroactive Custody Orders: Clarification is provided on the effect of nunc pro tunc (retroactive) corrections of custody orders and the circumstances under which USCIS may recognize private custody agreements.

• Adjudication of Pre-2000 Citizenship Claims: Expanded guidance is offered for adjudicating derivation of U.S. citizenship claims under former INA section 321, detailing each requirement, including legal custody considerations.

• Oath of Allegiance Requirement: USCIS emphasizes that a Certificate of Citizenship cannot be issued to any applicant who does not take the Oath of Allegiance, unless they are eligible for a waiver.

  
  

This policy update aims to ensure uniformity in the determination of legal and physical custody for citizenship purposes and provides detailed instructions for eligibility assessments for Certificates of Citizenship.

For more detailed information, please refer to the USCIS Policy Manual Updates.

Note: This information is provided for general informational purposes and does not constitute legal advice. For personalized guidance, please consult with Elarar Law and we will assist you with your immigration matter.