USCIS Issues Guidance on Defining “Residence” Related to Citizenship

Yesterday, USCIS issued policy guidance which clarifies and further defines “residence” in regards to citizenship. The policy alert seeks to clarify between residence, which is defined in the INA as the person’s principal actual dwelling place in fact, and physical presence, the actual time a person is physically in the United States. The memo also updates USCIS policy regarding children born to U.S. citizens abroad, children of U.S. government employees, and U.S. armed forces members employed or stationed outside the United States. For the purposes of acquiring citizenship, these individuals are not considered to be “residing in the United States.” Since its publication yesterday, the media has been abuzz with how this new interpretation will apply to children born abroad, particularly in the context of children born to U.S. military members stationed overseas. It is extremely disturbing that USCIS is narrowing their interpretation of “residence” and “residing” in order to restrict access to U.S. citizenship. Is this the first testing of the waters, so to speak, by this administration before they openly attack the 14th Amendment? To be sure, nothing this administration does is good for immigrants or immigration. More commentary will follow next week; we urge our readers to tune in and follow these developments closely.

Relevant highlights copied from the USCIS policy guidance:

Policy Highlights

• Clarifies that temporary visits to the United States do not establish U.S. residence and explains the distinction between residence and physical presence in the United States.

• Explains that USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as “residing in the United States” for purposes of acquiring citizenship under INA 320.

U.S. Citizens who were Born, But Did Not Reside, in the United States

A U.S. citizen may have automatically acquired U.S. citizenship based on birth in the United States, but never actually resided in the United States. This U.S. citizen will not have established residence in the United States, and may be unable to transmit U.S. citizenship to his or her own children. For example, if the U.S. citizen, still having never resided in the United States, subsequently marries another U.S. citizen who never resided in the United States, and they give birth to a child outside the United States, the child will not acquire citizenship at birth under INA 301(c) because neither U.S. citizen parent can show the requisite residence in the United States. However, if the U.S. citizen parent had returned to the United States after his or her birth and established residence before giving birth to the child outside the United States, then he or she may be able to meet the residence requirement based on that period of residence and transmit U.S. citizenship to his or her children.

E. Children of U.S. Government Employees and Members of the Armed Forces Employed or Stationed Abroad

Effective October 29, 2019, children residing abroad with their U.S. citizen parents who are U.S. government employees or members of the U.S. armed forces stationed abroad are not considered to be residing in the United States for acquisition of citizenship. Similarly, leave taken in the United States while stationed abroad is not considered residing in the United States even if the person is staying in property he or she owns.

Therefore, U.S. citizen parents who are residing outside the United States with children who are not U.S. citizens should apply for U.S. citizenship on behalf of their children under INA 322, and must complete the process before the child’s 18th birthday. The child of a member of the U.S. armed forces accompanying his or her parent abroad on official orders may be eligible to complete all aspects of the naturalization proceedings abroad. This includes interviews, filings, oaths, ceremonies, or other proceedings relating to naturalization.