ACA American Citizens Abroad

Section 322 of the Immigration and Naturalization Act (INA) provides for facilitated naturalization of non-citizen minor children of (some) Americans living abroad.

The following is an American Citizens Abroad (ACA) synthesis and update, based in good part on a series of memos issued by Ms. Michael Adler, AARO, Paris

Understanding the Basics

• Most Americans who have children while abroad are able to transmit their citizenship to their offspring at birth. They need only fill out a "Consular Report of Birth Abroad" (form FS 240) at their nearest American embassy or consulate. (If possible, contact the consulate in advance to receive the necessary forms and/or details of papers which you will have to bring.)

   

• However, for an American with a non-citizen spouse to transmit citizenship to children born abroad, the citizen parent must have been physically present in the US a certain number of years prior to the birth of the child in question (for children born before 14 November 1986, the American parent must have been physically present 10 years in the US, of which at least 5 were after the age of 14; for children born after that date, the parent must have lived 5 years in the US, at least 2 of which were after the age of 14.)

   

• The Section 322 naturalization process was created to help Americans with non-citizen spouses, who have not themselves lived the amount of time in the US required by law for citizenship transmission to their children. Section 322 provides for a naturalization of the minor child via US Citizenship and Immigration Services USCIS (formerly the Immigration and Naturalization Service INS), only simpler in principle than for most immigrants; it is not a process for transmission of citizenship, but only for naturalization.

General Background Information on the New Law

• What is Section 322 ?
  Section 322 of the Immigration and Nationality Act grants expeditious naturalization to the children of US citizens. It was amended by Public Law 103-416 on October 25, 1994 (and modified in form, but not in substance, by the "Child Citizenship Act of 2000") to enable Americans abroad to obtain US citizenship for their children, not otherwise eligible to be citizens, through a special naturalization procedure which does not require that they move back to the United States. This new amendment does not change the existing rule for transmitting citizenship at birth to children born abroad. Rather, it opens an additional "entry way" for children of Americans to receive Certificates of Citizenship if they fulfill the requirements set forth (see below).

   

• What government agency administers this law?
  Naturalizations are under the authority of the US Attorney General and are administered by the US Citizenship and Immigration Services USCIS (formerly the Immigration and Naturalization Service INS). Section 322 is not administered by the Department of State nor through its consulates around the world. Consular posts do not have Section 322 application packets, nor do they process completed application forms.

   

• Who is eligible?
  A child living abroad is eligible to become a US citizen under Section 322 if s/he
  1. is under the age of 18;
  2. is the offspring or adopted child of a US citizen parent; and
  3. has an American parent OR grandparent who has spent five years in the US, two of which were after the parent/grandparent was 14 years of age.
  (There can be cases where the American parent may have lived sufficient time in the US to help naturalize her/his child, but not have been in the US long enough to transmit citizenship.) The parent's/grandparent's fulfillment of this physical presence requirement can have taken place before or after the birth of the child. If the child is adopted, he or she must have been adopted before age 16 and the adoption must have taken place two years before applying under Section 322.

• Public Law 107-273 recently amended section 322(a) of the Immigration and Nationality Act (8 U.S.C. 1433(a)), making available the facilitated naturalization procedure for children of American citizens abroad who do not meet the residence requirements for transmitting citizenship to those minors whose citizen-parent is no longer living. If the citizen-parent is deceased, an application for naturalization can now be made by a citizen-grandparent or a citizen-legal guardian. Previously, death of the citizen-parent excluded his/her children from easy naturalization.

   

• What is involved?
  The American parent fills out the USCIS application forms and must include documents proving that either the parent or grandparent of the child spent the requisite time in the US. The forms and supporting documents are mailed to a USCIS District Office in the US of the family's choice (the list of USCIS offices is available on the USCIS website) which is supposed to review them within 60 days. Applicants abroad are notified of preliminary approval by USCIS. An appointment is then set up, and the American parent and child/children travel to the chosen District Office in the United States to finalize the process on the day of the appointment. (Depending on the nationality of the child, a visa may be needed. This can be checked by contacting a local US Consulate.)

  It is anticipated that in most cases the oath is administered and the Certificate of Citizenship is issued during the pre-scheduled appointment at the District Office. Once the Certificate is in hand, the child should obtain a US passport (going through a local US Passport Office) before leaving the US. There is no longer a fine levied for leaving the US without a valid passport, so if need be, a passport can be supsequently obtained in your normal country of residence.

   

• How to obtain application forms: Access the US Government  website at  www.uscis.gov/n-600k

   

  Carefully read the instructions for filling out the form and for payment of the fees.  Answer each item as best as possible.  Be prepared to provide supporting documentation especially for residence times in the US.  If necessary, add a cover letter explaining special situations.  The application can be filed at any USCIS district office in the US or one of its territories.  Experience has shown that offices in the Mid-West handle these forms faster than those on the East or West coast, but be prepared to wait up to a year for a final decision.

1. The Oath.
   Part of finalizing the naturalization process involves taking an oath of renunciation (of previous nationality) and allegiance (to the US) by children who are judged to be able to understand its meaning. The consequences, if any, to the nationality of a minor child who may take this oath should be evaluated in light of the laws of the country of which he or she is currently a citizen. Parents are advised to verify this issue for themselves regarding the laws of the country of which the child is a citizen. It appears that children who do not speak English or are too young to understand will not be asked to take the oath.
2. The 18th birthday cut-off.
   The entire naturalization procedure must be finished prior to the child's 18th birthday; children who reach their 18th birthdays without having already completed the USCIS naturalization procedure lose their eligibility to become US citizens under Section 322, even if the application has been submitted but not fully adjudicated and even if the delay is the fault of the USCIS! Parents of children who are eligible and who will turn 18 in the next 12 months should contact USCIS headquarters immediately at the above address. The USCIS is making an effort to expedite the process for children in this situation.
3. Use the right form.
   The USCIS has adopted a new form for the application of Section 322. It is N-600K (which replaces the older N-600) for adopted children and for biological offspring of Americans abroad. The American Citizens Services governement office has a Q and A explanation of the procedures to follow.

USCIS offices are not always familiar with theses applications
Potential applicants under Section 322 need to know that the USCIS has a poor record so far on implementing the law and on providing service to Americans abroad. Background: A key part of the agency's mission is to process legal entries into the US, process immigration cases and naturalizations and to keep unauthorized persons from entering the country. Unfortunately in too many instances, USCIS District Offices and even offices at Headquarters are understaffed, underfunded, and significantly behind in their workloads. This long-standing problem has been sharply accentuated with the passage of restrictive immigration legislation in 1996, adding immensely to the USCIS workload. In general, effective communication skills, both with the public the USCIS is supposed to serve and between USCIS headquarters and District Offices, all too often seem to be in short supply.

The USCIS has no previous history of dealing with Americans abroad
Granting naturalizations under Section 322 for children who do not reside in the US is a brand new concept for them. So far, USCIS has not been very successful in changing its mind-set to carry out Section 322 in a way which will serve Americans abroad and fulfill Congressional intent.

The USCIS is a decentralized agency.
Its fifty-some District Offices operate separately from one another. The level of ability to appropriately handle a Section 322 application varies greatly from one District Office to another, and each District Office seems to work independently in terms of processing applications and communicating with applicants abroad.

Three "wires" were sent from USCIS Headquarters
These wires were sent to all District Offices regarding Section 322 and are of particular interest to those applying: on July 7, 1995 (for applications of offspring of Americans abroad), on December 22, 1995 (for applications of adopted children), and on July 3, 1997 (regarding fingerprinting). These "wires" are Headquarters' directions to the District Offices on how to process the applications.

Which District Offices have the best/worst track records?
In general, the further north and the further inland in the US the District Office, the better things go. As mentioned above, it is recommended to ask at the time one requests the application packet at which District Offices it is currently recommended to apply. A list of USCIS District Offices and their addresses is included with these materials. Whichever District Office is selected, it is important the application "explains" itself to the USCIS personnel who open the mail and initially review it. See the last item below in Section IV on Filing the Application.

• The new N-600K form is specifically designed for the naturalization procedure, not like the regular N-600 form which is only a request for a certificate of citizenship for persons who are already US citizens.
• Do not send any original documents in the application itself. Send only photocopies and bring the originals with you to the interview. It is also a good idea to make additional copies of everything you submit in case the file is lost and you need to re-submit it. There have been a number of cases of applications being lost by USCIS offices. It is highly recommended to send all correspondence to USCIS offices via registered, return-receipt requested mail.
• All items on the form must be filled in. For those items which do not apply, write "N/A" (for "Not Applicable") rather than leave the item blank. For example, a child applying from abroad under section 322 will not have an Alien Registration number (A number or "Green Card" number). Simply mark "N/A" for that item and go on. [Note, however, regarding the item on entry/arrival, pencil in that you will provide this information after arriving in the US for the interview at the USCIS District Office.]
• The fact that the American grandparent (if his or her fulfillment of the physical presence requirement is the basis for the application) may be deceased does not adversely affect the claim as long as that grandparent's fulfillment of the requirement can be documented.
• The forms must be signed by the citizen-parent, not the grandparent. The law specifies that it is the American parent or US legal guardian who must apply for the child's naturalization and accompany the child to the US for the final interview and oath. (Grandparents may be present if they wish.)
• If, at the time of applying, the US parent of the child to be naturalized has spent 5 years in the United States with two after the age of 14, the US parent him/herself fulfills the requirement of the law and does not need to prove that the child's American grandparent spent the five years in the US. Some of the materials sent out by the USCIS may fail to mention this possibility and focus only on the grandparent's fulfillment of the 5 year residency in the US. Parents who qualify on their own should write a separate letter explaining this fact. They should attach copies of documents proving their own five years in the US.
• The parent's or grandparent's five years in the US need not be limited to when the parent/grandparent was a US citizen. It is ACA's understanding that time spent in the US as a non-citizen or even as a foreign diplomat counts toward fulfillment of the 5 years physical presence requirement.
• Regarding proof of physical presence generally, applicants should feel very free to write their stories in an accompanying letter and attach as much as they can to back up what is asserted. Provide copies of documents which tend to actually show the person was in the US at the time claimed, for example, school and/or college records, including year-to-year transcripts. For ideas about proofs, see the instructions accompaning form N-600K, which states, in substance, that if no documentation is available, you should submit notarized affidavits of at least two people who were living at the time and who have personal knowledge of what you are attempting to prove.

Your Feedback is Essential
Many of the caveats inserted in this overview are the result of actual experiences of families seeking "facilitated" naturalization for their children under Section 322. Please contribute to this growing fund of information by letting ACA know what you learn along the way, good and bad. Thank you. Please address queries and comments to:

      American Citizens Abroad
       5 rue Liotard
       1202 Geneva
       Switzerland
       phone/fax: +41 22 3400233

Model Cover sheet

Notice to the USCIS District Office receiving this application:

This application is being submitted in accordance with Section 322 of the Immigration and Nationality Act which has recently been amended (by Section 102 of P.L. 103-416, enacted on October 25, 1994) and now grants Americans abroad the right to obtain Certificates of Citizenship for their minor children residing outside the United States.

NO ALIEN REGISTRATION NUMBER IS REQUIRED.

USCIS Headquarters has sent "Wires" on July 7, 1995, December 22, 1995 and July 3, 1997 concerning how applications from abroad under Section 322 are to be processed. USCIS District Offices have 60 days to preliminarily adjudicate this application and communicate with the applicant parent overseas.

If you have questions, please contact Mr. E. B. DUARTE, Jr. or Mr. W. TOLLIFSON at USCIS in Washington. Your care and attention in processing this application is greatly appreciated.

Revised November 2009