Guide to INA 322 in the U.S.

Children born to American parents living outside the United States can acquire citizenship in multiple ways. One of them is through section 322 under the INA Act. But which children exactly are eligible for citizenship, and under what circumstances? In this article, we explain everything you need to know about INA 322.

What Is INA 322?

As per the definition provided by the USCIS, section 322 of the Immigration and Citizenship Act facilitates expeditious naturalization of children born to a US parent or parents living outside the United States. But this is limited to only those children who couldn’t gain citizenship at the time of their birth for one reason or another.

The children were born abroad and are still residing in a foreign land. Furthermore, there are certain eligibility criteria that children and parents must meet.

Why Was INA 322 Created?

The INA 322 section didn’t exist before October 25, 1994. It came into effect after the amendment of INA Section 320 by the Child Citizenship Act of 2000. So why was the section created?

To understand the motive behind INA 322, let’s go back to the basics. If you’re born to American parents in a foreign land, you’ll automatically have citizenship when your parents return to the United States. They, however, must file for the Consular Report of Birth Abroad at their nearest US embassy. A copy of this will be required at the border crossing.

But for an American citizen with a non-American spouse, things are a bit different. The parent who is an American citizen must have a physical presence in the U.S. for a certain period of time prior to the child’s birth.

For children born on or after November 14, 1986, the requirement for the U.S.-based parent is five years. Out of the five years, two years must have been after the age of 14.

After the introduction of INA 322, the time frame the U.S. citizen was required to be physically present in the U.S. for the naturalization process was relaxed. Thus, this eased the transition for children who were born to U.S. parents abroad and didn’t receive automatic citizenship on birth.

The final thing to note is that INA 322 is not a process through which children born abroad can transmit their citizenship. Rather, it is only for the naturalization of certain children born abroad to American parents who didn’t receive automatic citizenship.

Conditions for Automatic Citizenship

As mentioned above, the INA 322 applies only to those children who did not receive automatic citizenship after their birth. But who will receive automatic citizenship? There are five conditions for it, which are covered under Section 320 of INA. Those are:

• The child applying for naturalization must have at least one parent as a U.S.-based citizen either by birth or through naturalization. This also includes an adoptive parent.
• The child is in the legal custody of the U.S. citizen parent at the time of application.
• The child must not be above the age of 18 at the time of application as per the official birth records.
• The parent must meet the physical presence requirement or an outlying possession in the United States.
• The child is lawfully admitted, is physically present, and is diligently maintaining his/her legal status in the U.S. by the time his/her application is approved and naturalization time comes.

If the above conditions are satisfied, the children born overseas to U.S. parents receive automatic citizenship. If not, he/she should adopt the INA 322 route.

Five Year Window in the Event of Death of a Parent

The U.S.-based parent must meet the five years of physical presence in the U.S. requirement. But in the case of an untimely death and he/she didn’t meet the requirement, the grandparents or a legal custodian can take charge and apply for the foreign-born child’s naturalization on his/her behalf. This is covered under 322(a)(2)(B). Section 322(a)(2)(B), 12 USCIS-PM H.5(C) also clears that the physical presence requirement of five years includes those years the parents were not U.S. citizens but were physically present in the U.S.

Special Cases

There are special cases where relaxations apply to the above requirements.

Adopted Child

If the children in question are adopted, they are still eligible for naturalization under INA 322

Stepchild

In the case of a stepchild, the requirements for a U.S. parent remain the same.

Child Born Through Assisted Reproductive Technology

In case the child was conceived using an Assisted Reproductive Technology, the eligibility requirements will depend on the relationship he/she shares with the gestational mother.

Application and Supporting Documents

The main document that is required for naturalization is Form N-600K. This is different from the regular N-600 form that is used for issuing citizenship certification.

Along with that, the parent, grandparent, or custodian must submit proof for the physical presence requirement. This can be I-94 records, house rental records, employment records, or anything mentioned in the form. You’ll also have to write personal stories to attest to the veracity of the documents provided; attach these to the application form.

ID documents, birth certificates, and other documents will also be required to process this form. If your case falls under the exceptional category, additional documents like an adoption decree will be asked for.

You must submit photocopies and not the original documents.

INA 322 Process

The process of naturalization starts with the parents filing Form N-600K on behalf of the child.

• Download the form from the USCIS website and complete all the necessary sections applicable to your case.
• Pay a filing fee of $945 via an online mode or write a money order.
• Gather all the supporting documents, produce photocopies, and mail them to the USCIS P.O. in Phoenix, Arizona. You can also submit them online.
• Officials will review the form and documents within 69 days of receiving them and issue a preliminary approval.
• The USCIS will then set up an appointment, for which you, along with the child, will have to travel to the designated district office in the U.S. to finalize the process.
• When entering the U.S., there is no need for an immigrant visa. The documents mentioned in the letter will be more than enough to legally enter the U.S.
• The final phase involves an oath ceremony and an interview. Upon successful completion, the child can become naturalized under INA 322.
• It is advised to claim a Social Security number as soon as possible.

Conclusion

Section 322 has certainly made the process of reuniting family members a lot easier. But it’s important to fill out the forms correctly on your end and provide valid documents. If you have any further questions or concerns, you should contact an immigration attorney before moving ahead with the process.

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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