Custody in Acquisition of Citizenship Context

Key changes

• U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the legal and physical custody requirements for purposes of acquisition of U.S. citizenship under Section 320 and naturalization under Section 322 of the Immigration and Nationality Act (INA). USCIS is also expanding guidance on derivation of citizenship before the Child Citizenship Act (CCA), under former INA 321.
• 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 USCIS may recognize private custody agreements.
• Clarifies that USCIS considers a U.S. citizen parent who has actual uncontested custody of a child to have legal custody for purposes of acquisition of citizenship when there is no judicial determination on legal custody and the relevant jurisdiction’s law 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 the existing guidance in adjudicating citizenship claims under former INA 321.
• Clarifies that USCIS cannot issue a Certificate of a Citizenship to any applicant who does not take the oath of allegiance unless the applicant is eligible for an oath waiver.