Citizenship as a Derivative of a Parent’s Naturalization
On a regular basis I receive the following request from an adult lawful permanent resident (green card) client: when we file my N-400 Application for Naturalization, can we also file for my spouse and children at the same time – all of whom reside with me in the U.S.? In response, I give the good news: when you and/or your spouse naturalize and become a U.S. citizen, your permanent resident children under the age of 18 all automatically become U.S. citizens by operation of law, also known as U.S. Citizenship as a Derivative of a Parent’s Naturalization. That is, the moment an adult green card parent takes the oath of U.S. citizenship and is issued their Certificate of Naturalization, is the moment the under 18 year old permanent resident child residing with them in the U.S. becomes a U.S. citizen.
Furthermore, even if they wanted to, a lawful permanent resident in the U.S. under the age of 18 is legally ineligible to submit their own N-400 Application for Naturalization. That is, the minimum age to submit an N-400 application is 18.
The Child Citizenship Act of 2000
On February 27, 2001, the Child Citizenship Act of 2000 or “CCA” was signed into law and became the governing statute for how a lawful permanent resident child derives U.S. citizenship by way of their parent’s naturalization – and regardless of whether the naturalization took place before or after the child’s birth.
Pursuant to the CCA, children who are under the age of 18 become U.S. citizens by operation of law if the following 3 eligibility requirements are met, and no matter the order:
- The child must have obtained their green card, also known as lawful permanent residence,
- One of their parents is a U.S. citizen by birth or after naturalizing AND,
- The child lives in the U.S. and with their U.S. citizen parent(s), in both the legal and physical custody of that U.S. citizen parent.
The CCA also dictates that both adopted and biological children benefits from these provisions.
One of the more interesting aspects of how the CCA plays out in practice is that often the under 18 year old child will become a U.S. citizen the moment they become a lawful permanent resident, whether entering the U.S. on their immigrant visa or adjusting status to permanent residence while in the U.S. That is because, the impact of the CCA and automatic acquisition of U.S. citizenship occurs after the final requirement above is fulfilled – and with their being no required chronological order of these events.
The Law, Pre-CCA
The Child Citizenship Act does not apply retroactively. In general, for a green card holder turning 18 years of age before February 27, 2001(starting on December 24, 1952) to acquire U.S. citizenship by operation of law, both of his/her parents must become U.S. citizens before their 18th birthday. Exceptions to the pre-CCA general rule, and where the naturalization of just one parent will suffice to facilitate automatic acquisition of U.S. citizenship, include: (1) one of the child’s parents dies and the surviving becomes a U.S. citizen via naturalization, (2) the child is in the custody of the naturalizing parent pursuant to a legal separation or divorce, (3) the child’s parents were not married at the time of the child’s birth and the mother is now becoming a U.S. citizen via naturalization.
An individual deriving U.S. citizenship by way of their parent’s naturalization can obtain proof of their U.S. citizenship in one of two ways (or both). They can proceed to apply directly for a U.S. passport with the U.S. Department of State or apply for a Certificate of Naturalization with U.S. Department of Homeland Security’s Citizenship and Immigration Services. Both processes will require the applicant to submit documentation to confirm eligibility under the above provisions, although the processing of a U.S. passport will most likely be the quicker avenue. In either case, individuals in need of clarification and advocacy in the arena of derivative citizenship are advised to consult with experienced, competent counsel, such as Richard Hanus of the Law Offices of Richard Hanus.