September 6, 2010: Does This Child Derive Citizenship?

Does This Child Derive Citizenship?

Is it possible to challenge the USCIS on the issue of automatic citizenship if the child has his 18th birthday in January and his mom received citizenship in December of the same year?
— Anonymous

It is always possible to challenge the United States Citizenship and Immigration Service (USCIS) if there is a legal and factual reason to do so.

Under Immigration and Nationality Act (INA) section 320, a child born outside the United States automatically becomes a citizen of the United States when all of the following conditions have been met: at least one parent of the child is a citizen of the United States whether by birth or naturalization, the child is under the age of 18, and the child is a lawful permanent resident who is residing in the United States in the legal and physical custody of the U.S. citizen parent.

It appears from the facts presented in the question that the child turned 18 years of age in January and the parent became a U.S. citizen in December of that same year, after the child attaining the age of 18. In this scenario, since the child is already 18 years old at the time the parent becomes a citizen, then s/he does not automatically acquire citizenship when the parent becomes a citizen. It appears that the child will have to file a naturalization application using Form N-400 and meet all of the naturalization requirements.

It may be wise to have an experienced immigration attorney review all of the relevant documentation to ensure that the child does not automatically derive United States citizenship.

Michael Shane and Evan Shane, Immigration Attorneys