USCIS Updates Guidance on Determining Custody of Children Acquiring U.S. Citizenship

U.S. Citizenship, Immigration and Services Issues Guidance Concerning Legal and Physical Custody Requirements for Acquisition of U.S. Citizenship Under Section 320 and Naturalization Under Section 320 322 of the Immigration and Nationality Act (INA). We are also expanding guidance on obtaining citizenship prior to the Children's Citizenship Act of 2000, under former INA Section 321.

The update clarifies and expands current guidance on determining legal and physical custody of children of U.S. citizens for purposes of acquiring citizenship. Specifically, the updated guidelines:

Expands guidance on when USCIS considers a child to be in the legal custody of the U.S. citizen parent, clarifies the effect of a nunc pro tunc (retroactive) correction of a custody order, and clarifies when the USCIS can recognize private custody arrangements; clarifies that USCIS considers a U.S. citizen parent who has actual and uncontested custody of a child to have legal custody for purposes of acquiring citizenship when there is no court order on custody legal and the law of the relevant jurisdictions does not determine which parent has legal custody of the child; Provides that a U.S. citizen parent has physical custody of a child when the child resides or physically lives with the parent; Expands guidance on processing applications for U.S. citizenship prior to the Child Citizenship Act of 2000, providing detailed clarification on each of the requirements of former INA Section 321, including legal custody requirements; and clarifies that USCIS cannot issue a certificate of citizenship to any applicant who does not take the Oath of Allegiance and is not eligible for a waiver of the Oath.

This guidance is effective immediately and applies to pending applications on or after November 19, 2024. For more information, see Volume 12, Part H of the USCIS Policy Manual.

This update will help ensure consistent determinations of legal and physical custody for the adjudication of citizenship applications and provide more detailed guidance on how to determine legal and physical custody for eligibility for a citizenship certificate in these case.

USCIS is also implementing these changes in accordance with Executive Order 14012, Restoring Confidence in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, and the goals of removing barriers to citizenship .

For more information, see the policy alert (PDF, 215.57 KB).

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