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Understanding Derivative Citizenship

Getting derivative citizenship is beneficial to a child in lots of ways. If you want your child to derive citizenship, talk to Tadeo & Silva Law. We offer the required counsel.

Author: Massiel Silva Tadeo, Founder, Tadeo & Silva

Attorney Massiel Silva Tadeo is a partner and owner at The Tadeo & Silva Law Firm. She specializes in removal (deportation) defense, family immigration, and hardship waivers. Updated on: July 13, 2023.

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What Derivative Citizenship Is and What It Means for You

ou may be born to parents who were not U.S. citizens at the time of your birth, but one or both of them have since naturalized and are now U.S. citizens. If this is you, read along as we explore the concept of derivative citizenship together. We can assess how this affects your citizenship prospects. 

Under the principle of derivative citizenship, a child can derive U.S. citizenship from a parent who became a U.S. citizen after the birth of their child. Such citizenship can only be gained once the parent naturalizes. For instance: when a parent born in another country gains U.S. citizenship, the children they have can become citizens. The concept of derivative citizenship also applies to the adoption of foreign-born children by U.S. citizens.

This is to be distinguished from the acquisition of citizenship. Acquisition of citizenship requires at least one of the parents to be a U.S. citizen when a child is born abroad. If the child meets specific requirements, the child “acquires” citizenship through a parent even though they were born abroad.

Tadeo & Silva Law can answer your questions about derivative citizenship. We can also assist with all immigration processes, including the ones associated with family visas U.S.

Read on to learn more about derivative citizenship. 

Derivative Citizenship for Children Under 18 

Derivative citizenship is handled differently depending on whether the child resides inside or outside the U.S.

Residing in the U.S.

A child born abroad may be eligible for derivative citizenship. Under Section 320 of the Immigration and Nationality Act (INA), if you are a U.S. citizen and have a child below 18, your child can derive citizenship status from you as a parent. This occurs when the following four conditions are met:

  • At least one of the child’s parents is a U.S. citizen (by birth or naturalization).
  • Your child is a permanent resident.
  • Your child is under 18.
  • Your child resides in or has resided in the U.S. in the legal and physical custody of a U.S. citizen parent.

As soon as all four conditions are met simultaneously, the child becomes eligible to become a U.S. citizen by law.

The following steps are commonly included in the process:

  • The U.S. citizen parent applies to the nearest U.S. embassy or consulate for a Consular Report of Birth Abroad (CRBA). This establishes the child’s right to citizenship in the United States.
  • The parent may also apply for a United States passport for the child, either concurrently or separately.
  • Necessary papers include proof of the parent’s U.S. citizenship and proof of the parent’s physical presence in the United States. A marriage certificate (if applicable) and the child’s birth certificate are also required.

Adopted Children

If you have an adopted child, they can also become a U.S. citizen if either parent naturalizes, as long as the following conditions are met:

  • They are below the age of 18.
  • They have a green card.
  • The adopted child meets the requirements applicable to them under the Immigration and Nationality Act Section 101(b)(1)(E), (F), or (G).
  • At least one of the child’s adoptive parents is a U.S. citizen (by birth or naturalization).
  • The adoptive parent has the legal and physical custody of the child.
  • The adopted child is residing in the U.S. with their adoptive parent.

Stepchildren cannot get citizenship through their stepmother or stepfather unless adopted by them.

 

Residing Outside the U.S.

Under Section 322 of the INA, children born abroad who live outside the U.S. may be able to become citizens. A child who ordinarily resides outside of the U.S. may become a citizen if all of the following requirements are satisfied:

  • The child is under the age of 18.
  • The child has at least one parent who is a citizen of the United States by birth or naturalization, including adoptive parents.
  • The child’s parent or grandparent is a citizen of the United States and satisfies specific physical presence criteria in the United States or an outlying possession.
  • The child is in the legal and physical custody of U.S. citizen parents/parent and residing outside the U.S., or, if the parent is deceased, of someone who does not object to the application.
  • The child is lawfully admitted, physically present, and maintaining a legal status in the United States at the time the application is approved and the time of naturalization.

Derivative citizenship can be a complex process to understand. You may consider contacting a top immigration lawyer who can help you answer any questions that you may have.

Examples of Derivative Citizenship

Here are a few examples to illustrate how derivative citizenship works:

One Green Card Holder Parent Naturalizes 

Assume there is a family of two parents and two children. The children are under 18. Both parents are not U.S. citizens. All members of the family are permanent residents of the United States. The mother naturalizes as a U.S. citizen. 

In this instance, both young children become eligible to apply for U.S. citizenship due to their mother’s naturalization.

An Adopted Child’s Parent Naturalizes

A married couple were both born in the United States. They adopted a girl from a foreign country. She is younger than 18 and has become a legal permanent resident of the United States. She is eligible to become a U.S. citizen because she completed all of the standards listed above.

A Stepchild’s Mother Naturalizes

A husband is a naturalized U.S. citizen who lives in Georgia. He marries a Chinese national who lives in China. His new wife has a minor daughter who is relocating to the United States. 

The stepchild does not qualify for derivative citizenship. If the stepchild is under 18, she may obtain U.S. citizenship after her mother becomes a U.S. citizen.

Tadeo & Silva Law – Your Immigration Attorney of Choice

At Tadeo & Silva Law, we offer a full range of immigration services. These include the following:

  • Family-based immigration
  • Citizenship Applications
  • Deportation defense
  • Consulate representation
  • Humanitarian relief
  • Federal litigation

Check out our handy adjustment of status checklist if you want to adjust your status.

Our citizenship naturalization attorneys are here to help you to naturalize. We understand the challenges you face as an immigrant and are here to stand by your side as you strive to obtain U.S. citizenship. Feel free to give us a call today!

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