U.S. Citizenship and Immigration Services (USCIS) has issued new guidance on legal and physical custody requirements for children seeking to acquire U.S. citizenship. This update expands and clarifies guidance under Sections 320 and 322 of the Immigration and Nationality Act (INA), as well as derivation of citizenship under the former INA 321.
Key Points of the Update
Legal Custody Clarified: USCIS now considers a U.S. citizen parent to have legal custody of a child if he or she has actual and uninterrupted custody of the child, even when there is no formal court determination of custody and the laws of the relevant jurisdiction do not specify which parent has legal custody.
Definition of Physical Custody: Physical custody is established when the child resides or physically lives with the parent who is a U.S. citizen.
“Nunc Pro Tunc” (Retroactive) Orders : New guidance explains how retroactive custody orders are treated for purposes of evaluating citizenship claims.
Private Custody Agreements: Clarifies when private custody agreements may be recognized for purposes of determining legal custody.
Update for Claims Under the Old INA 321: New guidelines are provided for cases governed by the former Section 321 of the INA, which set out the rules for acquiring citizenship prior to the coming into force of the Child Citizenship Act (CCA) of 2000.
Requirement of the Oath of AllegianceUSCIS also clarified that a Certificate of Citizenship cannot be issued to an applicant who has not taken the Oath of Allegiance unless he or she meets the criteria for an exemption from this requirement.
These updates are effective immediately for applications that are pending or filed on or after November 19, 2024. The goal is to provide greater clarity on custody issues that affect eligibility for citizenship acquisition under the relevant sections of the INA.