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AILA Doc. No. 05090766 | Dated September 1, 2005
REF: A. 01/03/05 REINEMEYER-MCEVOY E-MAIL B. 02/04/05 SECKLER HAMMEL E-MAIL
1. Embassy Tel Aviv and Consulate General Jerusalem have requested guidance on the interpretation of INA section 320, which provides for the automatic naturalization of certain foreign born children of at least one U.S. citizen parent. The Child Citizenship Act of 2000 added this provision to the INA. Children who benefit from INA 320 did not acquire American citizenship at birth because their parents did not meet the transmission requirements but are granted citizenship when they enter the U.S. pursuant to lawful admission as a permanent resident. The inquiring posts specifically request clarification as to whether 320 applies where the child plans t go to the U.S. only to naturalize, and then continue living outside the U.S. Section 320 requires that the child be "residing in the United States in the legal and physical custody of the citizen parent pursuant to lawful admission as a permanent resident." Based on this language, the CCA applies only to persons who can establish actual residence in the United States. A second CCA provision, INA section 322, should be used for children residing outside the United States.
2. Residence is defined in INA section 101(a)(33) as "the place of general abode." INA 101(a)(33) further indicates that, "the place of general abode of a person means his principal, actual, dwelling place in fact, without regard to intent." Therefore, in order to satisfy the requirements of INA 320, the child beneficiary must establish to the Consular Officer's satisfaction that he/she has an actual, current dwelling in the United States. Mere statements of intent to establish residencE in the United States will not be sufficient to meet this burden. See 9 FAM 40.41 N.6.
3. In limited circumstances, children of U.S. citizens who live outside the U.S. will still be considered to have a residence in the U.S. Children of U.S. Military or U.S. Government employee, temporarily stationed abroad will be considered to be "residing in the United States" for purposes of acquisition of citizenship under INA 320. See 9 FAM 42.22 N.9.
4. In cases where the child cannot establish residence under section 320, he/she may still qualify for expeditious naturalization under INA section 322. If the child has a U.S. citizen parent or grandparent who has been physically present i: the U.S. for five years or more, at least two of which were after the age of fourteen years, the child is under the age of eighteen years, and the child is residing outside the U.S. in the physical and legal custody of the applicant, an application for naturalization can be filed from abroad. Once the application is approved, the child will come to the U.S., typically under a B2 visa, to take an oath of allegiance and become a U.S. citizen.
5. In summary, INA section 320 requires that the child/beneficiary be "residing in the United States," which is demonstrated through an actual, current domicile within the U.S
In cases where the child resides outside the U.S., post should apply INA section 322.RICE
UNCLASSIFIED STATE 00050940
Cite as AILA Doc. No. 05090766.
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