Section 322 provides that the child’s United States citizen parents (or if the parent has died during the past 5 years, either the grandparent or a legal guardian who is a US citizen) may apply to naturalize the child upon proof of the following:
- At least one of the child’s parent is (or, at the time of his death, was) a US citizen by birth or naturalization;
- The US citizen parent has (or, at the time of his death, had) been physically present in the U.S. or in its outlying possessions (OLP) for at least 5 years and that at least 2 of these 5 years occurred after his 14th birthday, or at the time of his death had a US citizen parent who had been physically present in the US or in its outlying possessions (OLP) for at least 5 years and that at least 2 of these 5 years occurred after his 14th birthday. If the child’s parent does not meet the physical presence requirement, the child may rely on the physical presence of his U.S. citizen grandparent to meet the requirement. The officer must verify that the citizen grandparent is a U.S. citizen at the time of filing. If the grandparent has died, the grandparent must have been a U.S. citizen and met the physical presence requirements at the time of his or her death;
- The child is under 18 year old;
- The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application); and
- The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.
Section 322 also applies to a child adopted by a US citizen parent if the child satisfies the legal requirements applicable to adopted children.
Please note that in order to naturalize under Section 322, the process must be completed before the child’s 18th birthday.
Attorney Shusterman served a Citizenship Attorney for the U.S. Immigration and Naturalization Service (INS) from 1976 to 1980, and decided hundreds of applications for citizenship for persons born outside the United States.
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Nationality Chart # 4 – Section 322
|Both the child and the citizen parent must regularly reside outside the U.S.|
|The child must be living in the legal and physical custody of citizen parent.|
|Both the child and the citizen parent must appear at an interview.|
|Natural Child||Adopted Child||One citizen parent can file the application. Parent’s requirements are identical for natural or adopted child.|
|N-600 filed||N-643 may be used in place of N-600||At time of adjudication, must have been physically present in the United States for periods totaling 5 years, at least 2 of these years must be after the parent’s 14 th birthday. OR A citizen parent of the citizen parent must have met these physical presence requirements. Note – Only a citizen parent can file the application.|
|Must meet definition of child in INA 101(c)(1)||Must meet definition of adopted child in INA 101(b)(1)|
|I.e., the child must be legitimate or legitimated before their 16 th birthday. Benefits under this law are not available for stepchildren or for illegitimate children.||I.e., must either have an approved I-600 or be eligible to have an I-130 (which does not have to be filed) approved under INA 101(b)(1)(E).|
|The adjudication and the taking of the oath, unless waived because the child is unable to understand its meaning by reason of mental incapacity or young age, must be completed before the child’s 18 th birthday.|
|Must be in legal status (non-immigrant or immigrant) at time of the interview and adjudication.||Note – It is now required that the citizen parent of the citizen parent (citizen grandparent ) still be living at the time of the filing and adjudication.|
Section 322 – Additional Resources
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.