By Lauren Russ

In August, President Trump renewed fears of an attack on Birthright Citizenship when he confirmed at a press conference that he is “seriously” considering ending[1] the Constitutionally protected right to citizenship for individuals born in the United States. [2] While the President has not yet acted on these statements, his administration is working to restrict other citizenship laws. U.S. Citizenship and Immigration Services recently released a policy alert clarifying the meaning of the statutory requirement of “Residence” for automatic U.S. citizenship to children born to U.S. citizens abroad.

Located within the Department of Homeland Security, USCIS “administers the nation’s lawful immigration system”[3] through the Immigration and Nationality Act of 1965, a statute outlining all citizenship provisions and means of immigration for the United States. Previously, USCIS utilized broad discretion to interpret provisions within the statute and in the application of  INA § 320, which governs automatic citizenship requirements for births to U.S. citizens abroad.[4] This provision included a requirement for a period of residency in the United States of one of the U.S. citizen parents before a child born abroad could be eligible for automatic U.S. Citizenship.[5] For the children of U.S. government employees and members of the U.S. armed forces the USCIS had “considered [them] to be both “residing in the United States” for purposes of INA § 320 and “residing outside of the United States” for purposes of INA § 322.[6] Under the new policy alert, the “USCIS rescinded the prior USCIS policy permitting children of U.S. government employees and U.S. armed forces members stationed outside of the United States to be considered “residing in” the United States” for automatic U.S. citizenship and now must apply for naturalization through INA § 322.[7]

While U.S. citizen government employees or service members who lived in the United States for some extended period at some point in their lives will not be affected by this new policy change, this new requirement appears to directly target recently naturalized individuals serving in the U.S. armed forces. Under INA § 328, 329 non-citizens can serve in the U.S. military to obtain eligibility for naturalization.[8] Over the past decade, “16,500 non-citizens serve[d] in uniform” and were eligible under these provisions for naturalization.[9] If the service members after becoming naturalized failed to establish residence without the previous exemption, this would make their children born abroad ineligible for automatic U.S. citizenship. Instead, the children of the service members must apply for naturalization and complete the process before their 18th birthday under INA § 322.[10]

The Government argues that a narrow interpretation of the term residence in the statute is necessary because “prior USCIS policy produced confusion” in forms adjudication of claims, conflicting statutory definitions, and the date the child acquired U.S. citizenship.[11] The USCIS policy alert will go into effect on October 29, 2019.[12]

[1] Paul LeBlanc, Trump Again Says He’s Looking ‘Seriously” at Birthright Citizenship Despite 14th Amendment, CNN, (Aug. 22, 2019, 5:14 AM), https://www.cnn.com/2019/08/21/politics/trump-birthright-citizenship-14th-amendment/index.html.

[2]  U.S. Const. amend. XIV

[3] About Us, U.S. Citizenship and Immigration Services, https://www.uscis.gov/aboutus (last visited Oct. 11,  2019).

[4] U.S. Citizenship and Immigration Services, Policy alert: Defining “Residence” in Statutory Provisions Related to Citizenship (2019).

[5] Immigration and Naturalization Act § 320, 8 U.S.C. §§ 1431 (2000).

[6] U.S. Citizenship and Immigration Services, Policy alert: Defining “Residence” in Statutory Provisions Related to Citizenship (2019).

[7] Id.

[8] Naturalization Through Military Service, U.S. Citizenship and Immigration Services, https://www.uscis.gov/military/naturalization-through-military-service (last visited Oct. 11, 2019).

 

[9] Mark Thomspon, Non-Citizens Make Better U.S. Soldiers*, Time (Apr. 6, 2012), http://nation.time.com/2012/04/06/non-citizens-make-better-u-s-soldiers.

[10] U.S. Citizenship and Immigration Services, Policy alert: Defining “Residence” in Statutory Provisions Related to Citizenship (2019).

[11] U.S. Citizenship and Immigration Services, Policy alert: Defining “Residence” in Statutory Provisions Related to Citizenship (2019).

 

[12] Id.