Section 322 Naturalization For Children Born and Residing Outside of U.S. (Includes U.S.C. Grandparent Scenarios)

 

Introduction

In general, section 322 of the Immigration and Nationality Act (INA) is a means for a child to gain citizenship who did not automatically gain citizenship through the child's U.S. citizen parent at birth or subsequently under section 320 of the INA. Section 322 provides an avenue for a child born who was born abroad and who generally still resides abroad to obtain citizenship through the application of his or her U.S. citizen parent. Also under section 322, in the event of the death of the U.S. citizen parent, the child's U.S. citizen grandparent or U.S. citizen guardian may be able to apply for naturalization on behalf of the child. Interestingly, in cases where the child's U.S. citizen parent does not (or did not at the time of death) meet the physical presence requirement to satisfy section 322, the child may nevertheless gain citizenship through the U.S. citizen parent's own U.S. citizen parent, provided that the grandparent meets the citizenship and physical presence requirements.

U.S. Citizen Grandparent

In this article, we will examine section 322 in detail and with specific emphasis on when U.S. citizen grandparents may play a role in the naturalization process of the child.

Please see our overview of section 322 to learn about the issues more generally [see article]. Furthermore, please see our articles on the derivation of citizenship at birth through birth in the United States [see article] or through statute [see article].

Note: All references in the article to the Form N-600K instructions refer to the 02/13/17 edition.

Statutory Background

Section 322(a) of the INA provides for when a naturalization application may be filed for a child who was born outside of the United States to a U.S. citizen parent and who generally resides outside of the United States with a U.S. citizen parent. First, it is important to note that this provision is not necessary for a child who derived citizenship at birth. Section 322 is applicable in cases in which the child born abroad did not derive citizenship either at birth or after birth through section 320.

Separate Provision for Automatic Grant of Citizenship After Birth

Under section 320 of the INA, a child automatically gains citizenship after birth if the following three conditions are fulfilled:

  1. At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
  2. The child is under the age of eighteen years.
  3. The child is residing in the United States in the legal and physical custody of the citizen parent to a lawful admission for permanent residence.

Section 320(b) of the INA extends 320(a) to adopted children (as defined in section 101(b)(1).

Unlike section 322, if the requirements of section 320 are fulfilled, the child derives citizenship automatically without the need for an application. Section 320 differs from section 322 in two other key respects. First, in order to automatically derive citizenship through section 320, the child must be residing in the United States in the legal and physical custody of his or her U.S. citizen parent, and be lawfully admitted for permanent residence. Second, the U.S. citizen parent has no past physical presence requirement to transmit citizenship through section 320.

Main Issue: Rules for Applying for Citizenship on Behalf of a Child Under INA 322

Under section 322, a parent who is a U.S. citizen may apply for naturalization on behalf of a child born outside of the United States who has not automatically acquired U.S. citizenship under section 320. Alternatively, if the U.S. citizen parent died within the preceding five years, the child's U.S. citizen grandparent or U.S. citizen legal guardian may apply for citizenship on his or her behalf under section 320. It is important to note that section 322, unlike section 320 and the provisions for acquiring citizenship at birth, is not a derivation of citizenship provision. As we will see, if the process is not completed before the child's eighteenth birthday, he or she does not acquire citizenship through section 322 and cannot retroactively do so.

Citizenship shall be granted provided that the U.S. citizen parent, or the U.S. citizen grandparent or U.S. citizen guardian, meets all of the five following conditions.

First (INA 322(a)(1)), at least one of the child's parents must be a U.S. citizen. In the event that the petitioner is a U.S. citizen grandparent or U.S. citizen guardian, at least one of the child's parents must have been a citizen at the time of the parent's death. This means that a U.S. citizen grandparent or U.S. citizen guardian would not be eligible to apply for naturalization on behalf of the child unless one of the child's parents was a U.S. citizen. It does not matter whether the parent was a U.S. citizen by birth or by naturalization, provided that he or is a citizen before the application is filed prior to the child's aging out.

Second (INA 322(a)(2)), the parent must meet, or have met prior to his or her death, a physical presence requirement. There are two distinct ways to meet the physical presence requirement set forth in the disjunctive, one of which relies upon the physical presence of the U.S. citizen parent and one of which relies upon the physical presence of the U.S. citizen parent's own U.S. citizen parent.

Under section 322(a)(2)(A), the U.S. citizen parent may meet the requirement by having been physically present in the United States or its outlying possessions for total of at least five years (need not be consecutive), and at least two of those years of physical presence must have transpired after the parent turned 14. If the parent is deceased, he or she must have met the section 322(a)(2)(A) requirements at the time of death. The United States Citizenship and Immigration Services (USCIS) Policy Manual (PM) explains at 12 USCIS-PM H.5(C) that, while the U.S. parent must be a U.S. citizen when the application is filed, or must have been a citizen at the time of his or her death, “physical presence” includes periods when the parent was not yet a citizen (if applicable).

Section 322(a)(2)(B) provides an avenue where, in some situations, the U.S. citizen parent does not meet the physical presence requirement. Under this provision, a section 322 naturalization application may be filed on behalf of the child by the U.S. citizen's U.S. citizen parent has been present in the United States or its outlying possessions for at least five years (need not be consecutive), and must also establish that at least two of those years of physical presence occurred after the U.S. citizen parent's own U.S. citizen parent turned 14. In short, if the U.S. citizen parent cannot meet the section 322(a)(2)(A) requirements, or did not meet the requirement as of the time of death, the U.S. citizen parent's own U.S. citizen parent may satisfy the requirement instead. Although the grandparent must be a citizen in order to rely on section 322(a)(2)(B), 12 USCIS-PM H.5(C) makes clear again that the concept of “physical presence” here includes periods when the grandparent was not yet a citizen (if applicable).

One interesting question is whether the U.S. citizen parent's U.S. citizen parent must be alive in order for section 322(a)(2)(B) to be an option. In an April 13, 2017 CIS Memorandum, then-Acting Associate Director William R. Yates concluded that the statutory language on this point was ambiguous, but he chose to interpret the provision as not requiring that the U.S. citizen grandparent be alive at the time of the application [PDF version]. That guidance was subsequently incorporated into the USCIS-PM at 12 USCIS-PM H.5(C)(3), which makes clear that the prior satisfaction of the physical presence requirement by a since deceased U.S. citizen grandparent may count for purpose of section 322(a)(2)(B), provided that the U.S. citizen grandparent was (1) the parent of the child's U.S. citizen parent; and (2) the grandparent had met all U.S. citizenship and physical presence requirements.

It is important to note that section 322(a)(2)(B) applies only to the parent of the U.S. citizen parent in question. The emphasis in 322(a)(2)(B) is on the relationship of the grandparent of the child to the U.S. citizen parent. A U.S. citizen parent (or U.S. citizen grandparent or U.S. citizen legal guardian) could not rely on a U.S. citizen parent of a non-citizen parent of the child to satisfy section 322(a)(2)(B).

It is important to note that the citizenship and physical presence requirements may be satisfied prior to the child's eighteenth birthday and need not have occurred prior to the child's birth. For example, see a legacy Immigration and Naturalization Service (INS) letter on the prior and similar version of section 322. Reported in 73 No. 4 Interpreter Releases 115 (Jan. 22, 1996) (“the parent or grandparent may meet the physical presence requirements anytime prior to the child's 18th birthday.”)

Notably, although a U.S. citizen guardian may apply for citizenship on behalf of a child under section 322, the U.S. citizen guardian may not rely on his or her own physical presence in the United States in order to establish eligibility.

Third (INA 322(a)(3)), the child must be under the age of 18. This applies regardless of whether the individual filing the citizenship application on behalf of the child is the child's U.S. citizen parent, grandparent, or guardian. It is important to note that the entire process must be completed before the child turns 18. However, at least one United States Federal District Court has held that the government may be equitably estopped if the child reached the age of 18 during the process due to delays on the part of the USCIS. See Harriott v. Ashcroft, 277 F.Supp.2d 538, 542-45 (E.D. Pa. 2003) [PDF version].1

Fourth (INA 322(a)(4)), the child must be residing outside the United States “in the legal and physical custody of the applicant.” However, if the parent is deceased, the child must only be residing in the legal and physical custody of an individual who does not object to the application. This means that if the applicant is a U.S. citizen grandparent, the grandparent need not have legal and physical custody of the child him or herself. The child must actually primarily reside outside of the United States in order to be eligible for naturalization under section 322.

Fifth (INA 322(a)(5)), the child must be temporarily present in the United States having been lawfully admitted and maintaining such lawful status to complete the application process.

Provided the five foregoing requirements are met, the application filed on behalf of a child under section 322 may be granted. There are a couple of other provisions in section 322 worth noting.

Section 322(c) extends the provisions of section 322 to a child adopted by a U.S. citizen parent. In order for an adopted child to qualify for citizenship under section 322, it must be established that he or she “satisfies the requirements applicable to adopted children under section 101(b)(1)…” In most cases, with limited exceptions for certain siblings of an adopted child, the child must be adopted before his or her sixteenth birthday.

Section 322(b) permits a section 322 naturalization application to be filed from abroad. However, the oath of allegiance must be subscribed to in the United States, except for a limited exception found in section 322(d), which we will discuss next.

Section 322(d) provides for looser requirements in the case of a child of a member of the U.S. Armed Forces who is authorized to accompany such member and reside abroad with the member under the member's official orders. In this case, any time spent abroad by the Armed Forces member under official orders will be treated as physical presence in the United States under section 322(a)(2)(A) of the INA. Section 322(a)(2)(A) references the five-year physical presence requirement. Furthermore, the section 322(a)(5) requirement that the child must be temporarily present in the United States after having been lawfully admitted and maintaining such status is waived for a child described in section 322(d). Finally, the oath of allegiance (required by section 322(b)) may be subscribed to abroad in section 322(d) cases.

Five Year Window In the Event of Death of the Parent

A U.S. citizen grandparent or U.S. citizen guardian may only file a section 322 naturalization application if (1) the child's U.S. citizen parent has died, and (2) the application is filed within five years of the U.S. citizen parent's death. In the event of the death of the U.S. citizen parent, it is important for the child's U.S. citizen guardian or U.S. citizen grandparent to apply for citizenship on behalf of the child within this five-year window (provided that the eligibility requirements are met).

Discussing Scenarios Involving U.S. Citizen Grandparents In-Depth

There are two cases in which a U.S. citizen grandparent may be involved in a section 322 naturalization application filed on behalf of a child. The first is the section 322(a) petitioning provision, which applies to any grandparent of the child. The second is the 322(a)(2)(B) physical presence provision, which applies only for the U.S. citizen parent of the child's U.S. citizen parent. Additionally, a U.S. citizen grandparent may act as the applicant and rely on his or her own physical presence to satisfy section 322(a)(2)(B) provided that the U.S. citizen parent did not satisfy section 322(a)(2)(A) at the time of his or her death.

U.S. Citizen Grandparent or U.S. Citizen Legal Guardian Applicant After Death of Child's U.S. Citizen Parent

The first, as we discussed above, pertains in the event of the death of the child's U.S. citizen parent. In this case, the U.S. citizen grandparent or U.S. citizen legal guardian may file a naturalization application on behalf of the child provided that the application is filed within five years of the death of the parent and if the child's legal guardian does not object to the application. Regarding U.S. citizen grandparents as applicants, the statutory language is arguably unclear as to whether the U.S. citizen grandparent applicant must be the parent of the child's deceased U.S. citizen parent (unlike section 322(a)(2)(B), which states this requirement clearly). However, the instructions for the Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322 [PDF version], make clear that a U.S. citizen grandparent filing the Form N-600K must be “[a] U.S. citizen parent of the child's U.S. citizen parent…” (see page 2 of the form instructions of the 02/13/17 edition). Accordingly, the U.S. citizen grandparent must be the parent of the child's deceased U.S. citizen parent in order to file the Form N-600K.

It is important to emphasize that the requirements of section 322(a)(1) and (2) must have already been satisfied at the time of the death of the parent. We will explain what this means in practical terms.

Section 322(a)(1) requires that the parent have been a U.S. citizen when he or she died. This means that if the child did not have a U.S. citizen parent, there is no way for the child's U.S. citizen grandparent or U.S. citizen legal guardian to apply for naturalization on behalf of the child under section 322.

Section 322(a)(2) requires that the deceased U.S. citizen parent have satisfied the physical presence requirement. In the case of section 322(a)(2)(A), the U.S. citizen parent must have met the physical presence requirement in his or her own right at the time of death. Section 322(d), see above, should be considered as well in cases where the U.S. citizen parent was a member of the U.S. Armed Forces (where applicable). Provided that the deceased U.S. citizen parent met the physical presence requirement, there would be no need to rely on the physical presence of a U.S. citizen grandparent.

Section 322(a)(2)(B), which arises only in cases where the child's U.S. citizen parent did not meet the physical presence requirement, is perhaps more complicated in the event of the death of that parent. If the grandparent or guardian filing the application relies on section 322(a)(2)(B), the statutory language suggests that both the citizenship and physical residence requirements for the grandparent must have been met as of the time the U.S. citizen parent died. That is, that the grandparent whose physical presence is being relied on must have both been a U.S. citizen and have accrued the requisite physical presence by the by the time of the U.S. citizen parent's death. The Form N-600K instructions take this position on page 2, stating that a U.S. citizen legal guardian may only file the Form N-600K if “the [physical presence] requirements must have been met by either the deceased U.S. citizen parent or by the U.S. citizen grandparent prior to the U.S. citizen parent's death” (emphasis added). On page 5, the Form N-600K instructions state clearly that “[t]he grandparent must … have been [a U.S. citizen] at the time of the death of the U.S. parent.” As a general rule, it is best to always consult with an experienced immigration attorney for guidance on the most up-to-date interpretation of section 322 requirements by the USCIS.

As we discussed, the physical residency of the U.S. citizen parent of the deceased U.S. citizen parent may be relied on under section 322(a)(2)(B), even if the grandparent is no longer alive, including in cases when the grandparent died before the U.S. citizen parent.

All of the foregoing discussion in this section applies equally if the applicant is the child's U.S. citizen legal guardian with the exception that the guardian can never rely on his or her own physical presence to satisfy section 322(a)(2). The legal guardian must instead establish that either child's U.S. citizen parent or U.S. citizen grandparent (parent of U.S. citizen parent) met the citizenship and physical presence requirements at the time of the death of the U.S. citizen parent.

U.S. Citizen Parent Applicant Relying on Physical Presence of His or Her Own U.S. Citizen Parent

If the U.S. citizen parent is alive and filing the application, relying on section 322(a)(2)(B) is a more simple matter. In this case, the U.S. citizen parent must only establish either that his or her parent is a U.S. citizen who meets the physical presence requirement or that, if his or her U.S. citizen parent is dead, that the U.S. citizen parent's deceased U.S. citizen parent met the section 322(a)(2)(B) requirements at the time of death. The primary restriction in this case, again, is that the U.S. citizen parent may only rely on the physical presence of his or her own U.S. citizen parent and not the parent(s) of the child's other parent (unless that parent is a U.S. citizen and files the application instead).

Special Case: Adopted Child

As we noted, section 322(c) extends section 322 to an adopted child provided that the child is both adopted by a U.S. citizen parent and qualifies as an adopted child under section 101(b)(1) of the INA. 12 USCIS-PM H.5(F) states that evidence should include the final adoption decree (if applicable) and other evidence that varies depending on the nature of the adoption.

Special Case: Step-Child

A step-child cannot obtain citizenship through a U.S. citizen step-parent on the basis of a step-relationship. However, if the U.S. citizen step-parent formally and legally adopts the step-child, he or she would be able to apply for citizenship on the child's behalf provided that all of the other section 322 requirements are met.

Special Case: Legitimated Child

A legitimated child may qualify for section 322 through a legitimated father provided that the requirements of section 101(b)(1)(C) are met. Accordingly, the child must be legitimated under the law of his or her domicile prior to attaining the age of 18 and must be in the legal custody of the legitimating parents at the time of his or her legitimation.

Special Case: Child Born Through Assisted Reproductive Technology

12 USCIS-PM H.5(A) addresses cases where a child is born abroad through Assisted Reproductive Technology. Under certain circumstances, such a child may be eligible for section 322 naturalization based on his or her relationship with the gestational mother, provided that she is a U.S. citizen. Specifically, the gestational mother must be “recognized by the relevant jurisdiction as the child's legal parent at the time of the child's birth…” Provided that the gestational mother was recognized as the legal parent at the time of birth, the application must then meet all of the generally applicable requirements under section 322.

Application and Supporting Documents

An application for naturalization under section 322 is made using the Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322. If the child's U.S. citizen parent is alive, the application must be submitted by that parent (even if the parent is relying on section 322(a)(2)(B) to meet the physical presence requirement). The U.S. citizen parent may file the application on behalf of a biological, legitimated, or adopted child born abroad who did not acquire citizenship through section 320. The application may be filed by the child's U.S. citizen grandparent (parent of U.S. citizen parent) or U.S. citizen legal guardian only in the event of the death of the U.S. citizen parent. The application may be submitted from abroad.

The applicant must follow the form instructions and submit all required documents in order to establish that the child is eligible for citizenship through section 322. The specific documentary requirements will vary based on the facts of the case. In general, an applicant should work closely with an experienced immigration attorney throughout the process. Below, for reference, is the Federal regulation at 8 C.F.R. 322.3, which sets forth the evidentiary requirements for an application under section 322 of the INA:

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At 12 USCIS-PM H.5(F), the USCIS states that an applicant does not need to submit documents that were submitted in connection with:

  • An immigrant visa petition retained by the American Consulate for inclusion in the immigrant visa package; or
  • An immigration petition or application and included in a USCIS administrative file.

Under both the PM and 8 C.F.R. 223.3(b)(2), the USCIS may request additional evidence as needed.

Completing the Process — Child's Temporary Presence in the United States, Interview, and Oath

With the exception of limited cases involving a U.S. citizen parent serving abroad in the U.S. Armed Forces, the section 322 naturalization process cannot take place solely overseas. In order to complete the process, in accord with section 322(a)(5), the child must be physically present in the United States under lawful admission. The child may be lawfully admitted in any status. The child must maintain the lawful status in which he or she was admitted throughout the process. If the child is entering the United States only to complete the naturalization process prior to returning to a residence abroad, a B2 visa may be granted for that limited purpose [see section, point 7].

Prior to the completion of the process, the applicant and child must appear in person before a USCIS officer for an interview. This requirement is found in 8 C.F.R. 322.4. However, at 12 USCIS-PM H.5(G), the USCIS explained that it may waive the interview requirement “if all the required documentation necessary to establish the applicant's eligibility is already included in USCIS administrative records” or as otherwise set forth in 8 C.F.R. 341.2.

To complete the process, section 322(b) of the INA requires that the child take the oath of allegiance in the United States (except in limited section 322(d) cases). At 12 USCIS-PM H.5(H), the USCIS explained that the oath requirement is waived for children younger than the age of 14.

8 C.F.R. 322.5 makes clear that the child becomes a citizen as of the date of the approval and administration of the oath of allegiance. Where no oath is taken, this is marked by the issuance of the certificate of citizenship.

In the Event of a Denial

If the application for citizenship is denied, the applicant will be notified of the reasons for the denial and his or her right to appeal the decision within 30 service days of the denial. This provision is found in 8 C.F.R. 322.5(a).

8 C.F.R. 322.5(c) explains that the USCIS will reject any subsequent applications submitted by the same individual and applicant if the original application was denied and the 30-service day window for appeal expired. Instead, the applicant would be instructed to submit a motion for reopening or reconsideration under 8 C.F.R. 103.5.

Conclusion

Section 322 is a naturalization provision for children of at least one U.S. citizen parent who did not acquire citizenship at birth or after birth through section 320. If a U.S. citizen parent is seeking U.S. citizenship for his or her child, he or she should consult with an experienced immigration attorney for a case-specific consultation. This is especially important in more complicated section 322 cases where the applicant must rely on the physical presence of a U.S. citizen grandparent and/or where the child's U.S. citizen parent is deceased.

Please see our website's section on Citizenship & Naturalization to learn more about issues involving citizenship in general [see category].

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  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1795