On November 19, 2024, U.S. Citizenship and Immigration Services (USCIS) released a significant policy alert refining guidance on the legal and physical custody requirements for children seeking to acquire U.S. citizenship under the Immigration and Nationality Act (INA). These updates aim to address complexities in custody determinations and provide clearer standards for stakeholders navigating citizenship processes.

At Saluja Law, we understand the nuances of immigration law and the profound impact such updates can have on families. Below, we break down the key aspects of this policy update and its implications for families seeking to secure citizenship for their children.

Key Updates in USCIS Policy Guidance

1. Expanded Legal Custody Criteria
   USCIS has clarified when a child is considered to be in the legal custody of a U.S. citizen parent. This includes situations where:

   • A nunc pro tunc (retroactive) correction of a custody order is recognized.
   • Private custody agreements may be accepted under specific circumstances.
   • A U.S. citizen parent has actual uncontested custody but no formal judicial determination exists, provided the relevant jurisdiction does not specify which parent has legal custody.

2. Definition of Physical Custody
   Physical custody is defined as the child residing or physically living with the U.S. citizen parent. This clarification simplifies the process of determining eligibility under INA 320 and INA 322.

3. Pre-Child Citizenship Act (CCA) Clarifications
   For cases adjudicated under former INA 321 (prior to the CCA's enactment in 2000), USCIS has expanded its guidance, providing detailed explanations for each requirement, including legal custody.

4. Oath of Allegiance Requirements
   USCIS has reiterated that a Certificate of Citizenship cannot be issued unless the applicant has taken the Oath of Allegiance. However, eligible applicants under age 14 or with other qualifying circumstances may receive an oath waiver.

Practical Implications for Families

The legal and physical custody requirements often intersect with complex custody arrangements resulting from divorce, separation, or private agreements. These updated guidelines provide much-needed clarity, particularly for:

• Families with informal custody arrangements.
• Applicants navigating custody rulings across varying jurisdictions.
• Cases involving retroactive custody adjustments.

For families with children born before February 27, 2001 (the effective date of the CCA), this update ensures that the requirements for derivation of citizenship under former INA 321 are transparent and comprehensive.

Impact on Pending and New Applications

This guidance applies immediately to all applications pending or filed on or after November 19, 2024. It supersedes previous policy interpretations, ensuring consistency and fairness in adjudicating citizenship claims.

What This Means for You

Navigating custody determinations in the context of U.S. citizenship can be challenging. At Saluja Law, we are committed to guiding families through these updates and helping them secure the best outcomes for their loved ones.

If you have questions about how this policy change may affect your case, we encourage you to reach out to our office. Together, we can address these updates and tailor a strategy to meet your unique needs.

Contact Saluja Law
Let us help you achieve clarity and success in your citizenship journey. Contact us today for a consultation!