U.S. Citizenship and Immigration Services issued new guidance in the USCIS Policy Manual on April 18, 2018, that relates to the determination of acquisition of citizenship at birth for children born abroad out of wedlock to a U.S. citizen mother or father. This new guidance implements the June 12, 2017, Supreme Court decision in Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017) where the Court determined that it is unconstitutional to have a more favorable physical presence requirement for U.S. citizen mothers of children born out of wedlock than for U.S. citizen fathers of children born out of wedlock. It also addresses what type of documentation will meet the financial support requirement that applies to acquisition of citizenship through a U.S. citizen father. The new policy guidance can be found in the USCIS Policy Manual at Volume 12, Part H, Chapter 3. Both updates are addressed below.  

Physical Presence Requirement for Acquisition of Citizenship under INA § 309

In the case of children born out of wedlock to one U.S. citizen parent and one non-citizen parent, the law in effect since Dec. 24, 1952, has provided that a child born to a U.S. citizen mother acquires citizenship at birth as long as the mother had one year of continuous physical presence in the United States prior to the child’s birth. In contrast, children born out of wedlock to a U.S. citizen father only acquire citizenship if the father meets a longer period of physical presence that depends on when the child was born. For example, for births on or after Nov. 14, 1986, an unwed U.S. citizen father has had to show five years of physical presence in the United States, with at least two years after age 14, in order to transmit citizenship automatically to his child.   

In Session v Morales-Sanchez, the Supreme Court held that these disparate physical presence requirements for transmission of citizenship by unwed citizen mothers and unwed citizen fathers violate the Equal Protection Clause of the U.S. Constitution. Instead of deciding to apply the more favorable one-year physical presence requirement to U.S. citizen fathers of children born out of wedlock, the court ruled that the longer period of physical presence should apply prospectively to U.S. citizen mothers. Although advocates believed that the reference to prospective application would mean that the decision would only apply to children born abroad out of wedlock on or after June 12, 2017, the new USCIS guidance now officially confirms that interpretation. As a result, children born out of wedlock to a U.S. citizen mother and noncitizen father before June 12, 2017 are citizens at birth as long as the U.S. citizen mother had one year of continuous physical presence in the United States prior to the child’s birth. Children born out of wedlock to a U.S. citizen mother and noncitizen father on or after June 12, 2017, however, will only acquire citizenship at birth if the U.S. citizen mother can establish that she had five years of physical presence in the United States prior to the child’s birth, at least two after the age of 14.

Example: U.S. citizen Lettie was born in Tulsa, Oklahoma, on May 11, 1989. She moved to Mexico with her family in 1995 and has resided there since then. On July 20, 2016, Lettie had a son, Tomas, who was born out of wedlock. Two years later, she had a daughter Helena, also born out of wedlock.   Tomas acquired citizenship at birth because he was born before June 12, 2017, and Lettie can show that she was physically present in the United States continuously for one year prior to his birth. Helena, however, did not acquire citizenship at birth because she was born after June 11, 2017. Although Lettie has more than five years of physical presence in the United States prior to Helena’s birth, she does not have at least two years of physical presence after age 14.   

Financial Support Requirement

Although the physical presence requirement for U.S. citizen mothers and fathers of children born out of wedlock is now the same for births abroad on or after June 12, 2017, there are still other requirements for acquisition of citizenship that only apply to U.S. citizen fathers. Under INA § 309(a), U.S. citizen fathers must also take the following steps in order for the child born abroad to acquire citizenship:

• Establish by the time the child turns age 18 that one of the following has occurred:
  • Child has been legitimated under laws of child’s or father’s residence or domicile
  • Acknowledge paternity in writing and under oath, or
  • Obtain declaration of paternity by adjudication by competent court
• Agree in writing (unless deceased) to provide financial support for the child until the child reaches 18 years of age

With the newly issued guidance, USCIS, for the first time, has provided more specific and practical information about the financial support requirement that applies to acquisition of citizenship to a child born out of wedlock to a U.S. citizen father and noncitizen mother. As described in the USCIS Policy Manual at Volume 12, Part H, Chapter 3(C)(1), the written agreement can be made at any time before the child’s 18^th birthday and can also be filed concurrently with an application for a Certificate of Citizenship. If the applicant for a Certificate of Citizenship is already over the age of 18, the financial support requirement may be met by submission of one or more documents that “support a finding that the father accepted his legal obligation to support the child.” It is not necessary to submit a written agreement of financial support where the U.S. citizen father dies before the child’s 18^th birthday.

As described in the new guidance, qualifying agreements to provide financial support must be in writing and acknowledged by the father; indicate the father’s agreement to provide financial support for the child; and be dated before the child’s 18^th birthday. The policy guidance also notes that USCIS will “consider whether the agreement was voluntary,” although that statement is not further explained. 

Notably, the guidance also provides that the written agreement of financial support may be in the form of other similar documentation in which the father “accepts financial responsibility of the child until the age of 18.”  Examples of such documentation include the following:
 

• A previously submitted Affidavit of Support (Form I-134) or Affidavit of Support under Section 213A of the INA (Form I-864)​
• Military Defense Enrollment Eligibility Reporting System (DEERS) enrollment;
• Written voluntary acknowledgement of a child in a jurisdiction where there is a legal requirement that the father provide financial support
• Documentation establishing paternity by a court or administrative agency with jurisdiction over the child’s personal status, if accompanied by evidence from the record of proceeding establishing the father initiated the paternity proceeding and the jurisdiction legally requires the father to provide financial support, or ​
• A petition by the father seeking child custody or visitation with the court of jurisdiction with an agreement to provide financial support and the jurisdiction legally requires the father to provide financial support.

This section of the guidance, in particular, may be useful in cases where the individual seeking to establish citizenship at birth is now older than age 18, and there was no express written agreement by the citizen father to support the child until age 18. In those circumstances, a document that implicitly includes such an agreement may be viewed as satisfying the financial support requirement.

Example: Nico is applying for a certificate of citizenship based on his birth out of wedlock in Guatemala in 1990 to U.S. citizen Mark and Guatemalan national Cristina. Per Nico, his U.S. citizen father Mark moved to Guatemala when he was 25, had a relationship with Nico’s mother Cristina, and then returned to the United States shortly after Nico was born. Before he left, Mark provided Cristina with a sworn declaration of paternity. Back in the United States, Mark sent money to Cristina for Nico’s support, and in 2010 provided Nico with an I-134 to support Nico’s application for a tourist visa. Although Mark never filed a sworn written statement of support before Nico’s 18^th birthday, under the new guidance Nico can seek to use the I-134 to show that his father accepted financial responsibility for him in writing before he turned age 18.