Written by attorney Brian David Lerner

Derivation of Citizenship for Children born out of wedlock

For purposes of derivative citizenship, children born out-of-wedlock to a naturalized mother were treated as if both parents had naturalized. The only exception was for children whose mothers naturalized between January 13, 1941 and December 23, 1952. Those children did not derive U.S. citizenship at the time of naturalization of their mother. However, if on December 24, 1952 they were under the age of sixteen, still permanent residents, and their mothers were still U.S. citizens, they automatically derived U.S. citizenship on that date. However, when the father is the naturalized, U.S. Citizen, it is much harder to obtain derivation of citizenship.

Legitimation is based on municipal law and may take many forms, including the abolition of the distinction between legitimate and out-of-wedlock children. The BIA has an interpretation as to what legitimation is in different countries.

Prior to the Child Citizenship Act of 2000 amendments, children born out-of-wedlock to a naturalizing father have only been able to derive citizenship if th legitimated according to the requirements of the nationality statute in effect at the time the last prerequisite for derivation was met. Legitimation is generally the process whereby the father shows legally to that country that he is the father and has 'legitimated' the relationship. The Child Citizenship Act of 2000 is silent as to the "legitimation" requirement. However, the general definition of "child" for citizenship purposes continues to distinguish between children who are legitimated and those who are not. The only statutory requirement is for the child to be in the physical and legal custody of the U.S. citizen parent. The interim rule issued by the legacy INS specifies that, in the case of a child born out-of-wedlock, the child must be legitimated and currently residing with the biological parent. However, USCIS has since modified its position and made clear that there is no legitimation requirement under this provision when the mother of a child born out of wedlock naturalizes. Thus, where a child born out of wedlock meets all other requirements of INA § 320, the child is eligible for derivative citizenship through the naturalization of the mother even if the child was never legitimated. USCIS has instructed that this policy interpretation is to be applied to all cases pending on or filed after September 26, 2003, the date of the memorandum advising of the new interpretation. Additionally, USCIS has instructed that the memorandum should be considered a sufficient basis to grant an otherwise untimely motion to reopen or reconsider a previous decision, if the child is otherwise still eligible.

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