What is INA 320 in the U.S.?

Are you the child of a U.S. citizen but perhaps you’re unsure whether you can get citizenship yourself? Or maybe your child’s other parent is a U.S. citizen but your living outside the U.S., so you’re wondering whether they still qualify to be a citizen themselves. 

The good news is INA 320 provides for this. Under INA 320, children of U.S. citizens can automatically become U.S. citizens themselves. Let’s take a closer look.  

What is INA 320?

INA 320 is section 320 of the Immigration and Nationality Act (INA). 

INA 320 regulates the automatic acquisition of citizenship after birth. There are different circumstances in which INA 320 will apply, which we unpack in more detail below. 

When Does a Child Automatically Become a Citizen of the U.S.?

Under INA 320, a child who is born outside of the United States will automatically become a U.S. citizen if all of the following conditions are met:

• At least one of the child’s parents (including an adoptive parent) is a U.S citizen by birth or through naturalization;
• The child is under 18 years old;
• The child lives in the United States in the legal and physical custody of their U.S. citizen parent. 

These conditions must have been met on or after February 27, 2001.

A child who is born outside of the United States through Assisted Reproductive Technology to a birth mother who is a U.S. citizen will also acquire U.S. citizenship under INA 320 if:

• The child’s birth mother is recognized by the relevant jurisdiction as his or her legal parent at the time they are born; and​
• The child meets all other requirements under INA 320, including that the child lives in the United States in the legal and physical custody of the U.S. citizen parent.

Unfortunately, INA 320 does not provide for a stepchild of a U.S. citizen who has not been adopted to qualify for citizenship unless they have another U.S. citizen parent. 

Legal and Physical Custody

Legal and physical custody is a requirement for a child to become a U.S. citizen under INA 320. But what exactly does this mean? 

Legal custody is when a parent is responsible for and has authority over their child. 

For the purposes of INA 320, the United States Citizenship and Immigration Services (USCIS) will presume a child’s U.S. citizen parent has legal custody over the child (unless there is evidence proving otherwise) in the following scenarios:

• The child is a biological child and currently lives with both biological parents who are married to each other, living in a marital union and not separate;
• The child is a biological child who currently lives with a surviving biological parent if the other parent is deceased;
• The child is a biological child born out of wedlock who has been legitimated and currently lives with the parent;
• The child is adopted with a final adoption decree and currently lives with the adoptive U.S. citizen parent;
• The child’s parents are divorced or legally separated, where a court of law or other government entity has given primary care, control, and maintenance of the child to a parent under the laws of the state or country they live in.

A U.S. citizen parent who has been awarded “joint custody” of a child is regarded as having legal custody of a child for purposes of INA 320. 

The above scenarios aren’t the only scenarios where the USCIS may find the U.S. citizen parent has legal custody. If it is a situation other than described above, it will be determined on a case-by-case basis.

Children of Armed Forces Members or U.S. Government Employees

The Citizenship for Children of Military Members and Civil Servants Act also provides that, under certain circumstances, children of U.S. armed forces members or U.S. government employees living outside the United States may acquire citizenship under INA 320.

INA 320 provides that a child who is born outside of the United States will automatically acquire citizenship where the child is a Lawful Permanent Resident of the United States and is in the legal and physical custody of his or her U.S. citizen parent who is:

• Stationed and living outside of the United States as a member of the U.S. armed forces;
• Stationed and living outside of the United States as an employee of the U.S. government; or
• The spouse is living outside the United States in a marital union with a U.S. armed forces member or U.S. government employee stationed outside of the United States.

N-600 Certificate of Citizenship

If a child automatically got U.S. citizenship under INA 320, they’re not required to file a Form N-600, Application for Certificate of Citizenship. But suppose they want documentation proving their citizenship status. In that case, they will have to file Form N-600 with the USCIS to get the certificate. 

Documentation and Evidence

A person filing the Form N-600 will have to file the following documents and evidence with it:

• Their birth certificate or birth record;
• Marriage certificate of their parents, if applicable;
• If either parent was previously married and divorced or widowed, proof that such previous marriage ended (for example, ​ a divorce decree or​ death certificate);
• Evidence of their parent’s U.S. citizenship. This can be done with a ​birth certificate, a naturalization certificate, a certificate of citizenship, a valid, unexpired U.S. passport, or a Consular Report of Birth Abroad (FS-240);
• if the child was born out of wedlock, documents proving legitimation;
• Documentation showing legal custody in the case of divorce, legal separation, or adoption;
• A copy of their Permanent Resident Card or Alien Registration Receipt Card or other evidence that they are a lawful permanent resident, such as an I-551 stamp;
• A copy of the full, final adoption decree, if applicable;
• Evidence of all legal name changes, if applicable, for the child and U.S. citizen parent.

This is just an example of some of the documentation that may be required. The USCIS can request additional documentation before they make a decision on the application. 

Citizenship Interview and Waiver

Usually, an applicant who applies for a Certificate of Citizenship must undergo an interview with a USCIS officer before the N-600 application is approved. This will include the child’s parents if the Form N-600 is filed on behalf of a child under 18 years old. 

However, the USCIS can waive this requirement if all documentation to show eligibility is already in USCIS administrative records or if all required documentation is filed along with the Form N-600.

Decision and Oath of Allegiance

If the USCIS officer denies the Certificate of Citizenship application, they must give written reasons for their decision. They must also include information on the right to appeal. An applicant can file an appeal within 30 calendar days after the decision was served.

If the Form N-600 application is approved, the USCIS will administer the Oath of Allegiance before issuing the Certificate of Citizenship. The requirement to take the Oath of Allegiance will be waived if the applicant is under 14 years old or if the USCIS believes the applicant can’t understand its meaning. 

 If USCIS waives the oath requirement, USCIS will issue a Certificate of Citizenship directly after the officer approves the application.

Conclusion 

If you are a child of a U.S. citizen, you may automatically also be a U.S. citizen under INA 320. This could be the case even if you are living outside of the United States. Consider the information above and see whether you may actually qualify for U.S. citizenship. If you want proof, file a Form N-600 with the USCIS. It is a simple process that could reap the lifelong benefits of being a U.S. citizen. 

Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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