The U.S. Citizenship and Immigration Services (USCIS) recently issued an important policy update on legal and physical custody requirements for acquiring U.S. citizenship under sections 320 and 322 of the Immigration and Nationality Act (INA). Additionally, it clarified policies regarding the derivation of citizenship under former INA section 321, which governed such claims before the enactment of the Child Citizenship Act of 2000. This announcement, effective immediately, is designed to streamline and enhance the adjudication of citizenship claims. Read this blog and reach out to a New York City immigration lawyer from the Lightman Law Firm to learn about the new guidance on legal and physical custody and what this may mean for you. Here are some of the questions you may have:
What Does the New Guidance on Legal & Physical Custody Cover?
The updated USCIS policy provides expanded and clarified rules for determining legal and physical custody in citizenship applications. Specifically, the guidance addresses:
Legal Custody Determinations
USCIS clarified how legal custody is determined when a U.S. citizen parent seeks citizenship for their child.
It now recognizes that a parent with actual uncontested custody can be deemed to have legal custody, even if no court order exists, provided local laws do not assign custody otherwise.
Retroactive corrections to custody orders (nunc pro tunc orders) are clarified as valid, and certain private custody agreements may now be accepted.
Physical Custody Definition
Physical custody is defined as the child living with or residing with the U.S. citizen parent. This clarification simplifies what applicants must demonstrate regarding their child’s living arrangements.
Pre-Child Citizenship Act Derivation Claims
For cases under the pre-2000 Child Citizenship Act framework, the guidance offers detailed explanations of legal custody requirements and other criteria under former INA section 321. This ensures that applicants relying on older laws understand what evidence is required to substantiate their claims.
Oath of Allegiance
USCIS reaffirmed that applicants must take the Oath of Allegiance unless eligible for a waiver. Citizenship cannot be granted without this critical step.
Why Is This Update Significant?
This update directly impacts families navigating the citizenship process, especially those with complex custody arrangements or older claims based on pre-2000 laws. By clarifying the standards for legal and physical custody, USCIS aims to ensure fair and consistent adjudication of citizenship applications while reducing ambiguity and delays.
Who Benefits from the Policy Update?
Families in the following scenarios may find the new guidance particularly helpful:
- Uncontested Custody Cases: Where no court order exists, but one parent has clear custodial rights.
- Retroactive Custody Orders: Families with custody orders issued after the relevant time period can now potentially benefit from their retroactive effect.
- Pre-2000 Derivation Claims: Individuals born before the Child Citizenship Act of 2000 who rely on the older INA section 321 for derivation of citizenship.
If you have any additional questions about your case or are facing an immigration challenge of any kind, please don’t hesitate to contact the Lightman Law Firm for help today.
