A hair-raising sentence that caused a minor freakout on political Twitter this afternoon from the new citizenship guidelines issued by the feds today: “USCIS is updating its policy regarding children of U.S. government employees and U.S. armed forces members employed or stationed outside the United States to explain that they are not considered to be ‘residing in the United States’ for purposes of acquiring citizenship under INA 320.”
So … children of U.S. military servicemen and women born abroad are no longer citizens? For a guy who likes to remind people how much he loves the military, Trump doesn’t seem to love the military so much here!
Who This Policy Update Does Not Affect
This policy does not affect children born outside the United States who were citizens at birth or who have already acquired citizenship, including children who:
Were born to two U.S. citizen parents, at least one of whom has had a residence in the United States or one of its outlying possessions before the child’s birth;
Were born to married parents, one of whom is a U.S. citizen and one a foreign national, if the U.S. citizen parent was physically present in the U.S. or one of its outlying possessions for at least five years, at least two of which were after they turned 14 years old;
How many children born abroad to servicemen and women are covered by those two categories? Ninety-five percent? More? None of them are touched by the new policy.
Today’s guidelines are a result of a bit of confusion between two different immigration statutes, says the USCIS in its explanation of the change. Section 320 of the Immigration and Nationality Act explains how a child who was born abroad can automatically become an American citizen. Basically, if one parent is a U.S. citizen, the child is under 18, and the child is now residing in the U.S. with the parent, he/she gets citizenship. All he/she has to do is take the oath. Section 322 is for children born abroad who don’t fit that criteria, i.e. if the family is now residing outside the U.S. In that case the child doesn’t get automatic citizenship but can be naturalized as an American citizen. In the case of a service member, as long as they’re a U.S. citizen and were present in the U.S. for at least five years after they turned 14 — and if you’re deployed abroad on military orders, that counts as “present in the U.S.” — then they can file some extra paperwork and have their child naturalized.
Until today, military members could file under either 320 or 322, claiming that they were residing in the U.S. even while deployed abroad *or* claiming that they weren’t residing in the U.S. but were “physically present.” The new policy clarifies that, from now on, it’s only the second route that’s available to them until they’re residing back home again.
First, permitting a child to be eligible simultaneously for a Certificate of Citizenship under INA 320 and for naturalization under INA 322 conflicts with the language of INA 322(a), which states that a parent “may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under INA 320.”
Second, considering children who are living outside of the United States to be “residing in the United States” conflicts with the definition of “residence” at INA 101(a)(33), which defines “residence” as a person’s “principal, actual dwelling place in fact.”
Third, considering these children to be “residing in the United States” is at odds with INA 322(d), which was enacted in 2008,16 4 years after USCIS issued policy guidance on the topic. When Congress enacted INA 322(d), it provided for special procedures in cases involving the naturalization of “a child of a member of the Armed Forces of the United States who is authorized to accompany such member and reside abroad with the member pursuant to the member’s official orders, and is so accompanying and residing with the member.” Congress placed this provision under INA 322, which applies only to children “residing outside of the United States.” It did not provide similar language for such children to acquire citizenship under INA 320.
It boils down to this (if I’m understanding it correctly). Starting next month, a child born abroad to an American citizen in the military is no longer treated as though they’re residing in the U.S. If you want automatic citizenship for that child under 320, you need to wait until you come home and establish U.S. residency for the child here. Or, if you don’t want to wait until you’re back in the U.S., you can file paperwork under 322 that’ll make them a naturalized citizen even while they’re residing abroad. By forcing families who want to speed up the process to use 322 instead of 320, the feds are going to make servicemen to jump through more bureaucratic hoops and do more paperwork, which is a pain. But no one’s kid is being rendered ineligible for citizenship by the policy. They’re still fully entitled to it.
One question I have, though. If you go the 322 route, where does that leave your child with respect to his/her constitutional eligibility to be president as a “natural-born” citizen? Section 322 lays out the procedure for “naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically.” If the child is naturalized, by definition it’s not natural-born, right?