Derivative citizenship is U.S. citizenship given to children who have green cards and whose parents become naturalized U.S. citizens, or in recent years, to foreign-born children adopted by U.S. citizen parents, if certain conditions are met.
(Naturalization is the process by which U.S. lawful permanent residents, otherwise known as green card holders, obtain U.S. citizen status.)
When a person gets derivative U.S. citizenship, it happens automatically, by operation of law. Neither the parent nor the child needs to submit an application. However, the legal requirements for derivative citizenship are highly complex and have changed a lot over the years, so it can be difficult to determine whether you qualify. You must, in most cases, follow the law that applied in the year you were born.
And because derivative citizenship is automatic, you won't have proof of your status unless you separately apply to U.S. Citizenship and Immigration Services (USCIS) for a citizenship certificate (discussed below).
There have always been two important elements of derivative citizenship. These are naturalization of the U.S. parent or parents before the child has reached a certain age (unless the parent was born a citizen) and the child becoming a lawful permanent resident before a certain age. Other requirements have been added (or subtracted) at different times.
How Derivation of Citizenship Differs From Acquisition of Citizenship
Another legal concept known as "acquisition of citizenship" applies to children born outside the U.S. to one or more U.S. citizen parents. These children did not need to enter the U.S. with a green card in order to obtain citizenship automatically; they are, if they meet the legal criteria that applied in the year they were born, citizens at birth. (See Nolo's articles on Acquiring or Deriving Citizenship Through Parents for details.)
Derivation of Citizenship Under the Child Citizenship Act
The Child Citizenship Act (CCA) is the current law on derivation of citizenship, which is in effect for children born or adopted today or at any time since February 28, 1983. It went into effect on February 27, 2001. You'll find it in Section 320 of the Immigration and Naturalization Act (I.N.A.).
The CCA allows foreign-born, biological, and adopted children of U.S. citizens to get American citizenship automatically when they enter the United States as lawful permanent residents. Under the CCA, a child will automatically become a U.S. citizen on the date that all of the following requirements are met:
- at least one parent is a U.S. citizen, whether by birth or naturalization
- the child is under age 18
- the child is unmarried
- if the child was born out of wedlock, the mother is the U.S. citizen or, if the father is a U.S. citizen through naturalization or other means, the child was legitimated by the father under either the law of the child’s or father’s residence or domicile, and the legitimation occured before the child turned 16
- the child is currently residing in the United States (or in some cases, overseas, if the parent is in the U.S. armed forces or working for the U.S. government) and is in the legal and physical custody of a U.S. citizen parent, and
- the child is a lawful permanent resident (a green card holder).
Additional criteria apply if the child is adopted.
Adopted Children and Derivation of U.S. Citizenship
A child who enters the U.S. on an IR4 visa (to be adopted in the U.S.) will acquire American citizenship when the adoption is full and final in the United States. If the child was not an orphan, then he or she will also need to have been adopted before turning 16 and have been in the legal custody of and have resided with the adopting parent(s) for at least two years beforehand.
The Law on Derivation of Citizenship Before the CCA
If you are interested in finding out about possible derivation of citizenship and were born prior to 1983, see the articles on Acquiring or Deriving Citizenship Through Parents found on Nolo's website. Note, however, that derivation of citizenship for adopted children did not exist prior to the passage of the CCA.
Obtaining Proof of U.S. Citizenship
If your child permanently resides in the U.S., and meets the requirements for derivative citizenship, you can apply for proof of citizenship by filing USCIS Form N-600 (Application for Certificate of Citizenship), along with documents proving the parent's U.S. citizen status, the child's identity and immigration status and relationship to the parent (using a birth certificate or adoption decree), and more (depending on the particulars of your case).
The form itself is available for free download from the USCIS website. However, you'll need to pay a filing fee ($600 as of early 2016) and submit it by mail, then wait for a reply. The wait can be many weeks or months long. USCIS may require the parents and child to appear for a personal interview.
Another option is to apply to the U.S. Department of State for the child's passport. However, it's sometimes easier to obtain a citizenship certificate from USCIS first, and use that to prove the person's status to the Department of State.
Questions for Your Attorney
- How can I apply for permanent residence status for my child in order that she or he can later get U.S. citizenship?
- How can I show that I have permanent and legal custody of my child, in order to meet the requirements under the CCA?
- What documentation do I need to prove to the U.S. government or others that my child is a U.S. citizen?
- How do I prove that a child born out of wedlock to a U.S. citizen father derived U.S. citizenship?
- USCIS hasn't acted on my N-600, and we need to get my child a U.S. passport soon. What do we do?