8 Cfr 322

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Department of Homeland Security

Pt. 322

(iii) If the child’s parents were married before their marriage to each
other, proof of termination of any previous marriage of each parent (e.g.,
death certificate or divorce decree);
(iv) Evidence of U.S. citizenship of
parent, (i.e., birth certificate; naturalization certificate; FS–240, Report of
Birth Abroad; a valid unexpired U.S.
passport; or certificate of citizenship);
(v) If the child was born out of wedlock, documents verifying legitimation
according to the laws of the child’s residence or domicile or father’s residence
or domicile (if applicable);
(vi) In case of divorce, legal separation, or adoption, documentation of
legal custody;
(vii) Copy of Permanent Resident
Card/Alien Registration Receipt Card
or other evidence of lawful permanent
resident status (e.g. I–551 stamp in a
valid foreign passport or Service-issued
travel document);
(viii) If adopted, a copy of the full,
final adoption decree and, if the adoption was outside of the United States
and the child immigrated as an IR–4
(orphans coming to the United States
to be adopted by U.S. citizen parent(s)),
evidence that the foreign adoption is
recognized by the state where the child
is permanently residing; and
(ix) Evidence of all legal name
changes, if applicable, for the child and
U.S. citizen parent.
(2) If the Service requires any additional documentation to make a decision on the application for certificate
of citizenship, applicants may be asked
to provide that documentation under
separate cover or at the time of interview. Applicants do not need to submit
documents that were submitted in connection with: An application for immigrant visa and retained by the American Consulate for inclusion in the immigrant visa package, or an immigrant
petition or application and included in
a Service administrative file. Applicants should indicate that they wish to
rely on such documents and identify
the administrative file(s) by name and
alien number. The Service will only request the required documentation
again if necessary.
[66 FR 32144, June 13, 2001, as amended at 74
FR 26940, June 5, 2009; 76 FR 53799, Aug. 29,
2011]

§ 320.4 Who must appear for an interview on the application for citizenship?
All applicants (and U.S. citizen parent(s) if application filed on behalf of a
minor biological or adopted child)
must appear for examination unless
such examination is waived under the
guidelines expressed in § 341.2 of this
chapter.
§ 320.5 Decision.
(a) Approval of application. If the application for the certificate of citizenship is approved, after the applicant
takes the oath of allegiance prescribed
in 8 CFR 337.1 (unless the oath is
waived), USCIS will issue a certificate
of citizenship.
(b) Denial of application. If the decision of USCIS is to deny the application for a certificate of citizenship
under this section, the applicant will
be advised in writing of the reasons for
denial and of the right to appeal in accordance with 8 CFR 103.3(a). An applicant may file an appeal within 30 days
of service of the decision in accordance
with the instructions on the form prescribed by USCIS for that purpose, and
with the fee required by 8 CFR
103.7(b)(1).
(c) Subsequent application. After an
application for a certificate of citizenship has been denied and the time for
appeal has expired, USCIS will reject a
subsequent application submitted by
the same individual and the applicant
will be instructed to submit a motion
for reopening or reconsideration in accordance with 8 CFR 103.5. The motion
must be accompanied by the rejected
application and the fee specified in 8
CFR 103.7(b)(1).
[76 FR 53799, Aug. 29, 2011]

PART 322—CHILD BORN OUTSIDE
THE UNITED STATES; REQUIREMENTS FOR APPLICATION FOR
CERTIFICATE OF CITIZENSHIP
Sec.
322.1 What are the definitions used in this
part?
322.2 Eligibility.
322.3 Application and supporting documents.
322.4 Interview.
322.5 Decision.

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§ 322.1

8 CFR Ch. I (1–1–12 Edition)

AUTHORITY: 8 U.S.C. 1103, 1443; 8 CFR part
2.
SOURCE: 66 FR 32144, June 13, 2001, unless
otherwise noted.

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§ 322.1 What are the definitions used
in this part?
As used in this part the term:
Adopted means adopted pursuant to a
full, final and complete adoption. In
the case of an orphan adoption, if a foreign adoption was not full and final,
was defective, or the unmarried U.S.
citizen parent or U.S. citizen parent
and spouse jointly did not see and observe the child in person prior to or
during the foreign adoption proceedings, an orphan is not considered
to have been adopted and must be readopted in the United States or satisfy
the requirements of section 101(b)(1)(E)
of the Act.
Adopted child means a person who has
been adopted as defined above and who
meets the requirements of section
101(b)(1)(E), (F) or (G) of the Act.
Child means a person who meets the
requirements of section 101(c)(1) of the
Act.
Lawful admission shall have the same
meaning as provided in section
101(a)(13) of the Act.
Joint custody, in the case of a child of
divorced or legally separated parents,
means the award of equal responsibility for and authority over the care,
education, religion, medical treatment
and general welfare of a child to both
parents by a court of law or other appropriate government entity pursuant
to the laws of the state or country of
residence.
Legal custody refers to the responsibility for and authority over a child.
(1) For the purpose of the CCA, the
Service will presume that a U.S. citizen parent has legal custody of a child,
and will recognize that U.S. citizen
parent as having lawful authority over
the child, absent evidence to the contrary, in the case of:
(i) A biological child who currently
resides with both natural parents (who
are married to each other, living in
marital union, and not separated),
(ii) A biological child who currently
resides with a surviving natural parent
(if the other parent is deceased), or

(iii) In the case of a biological child
born out of wedlock who has been
legitimated and currently resides with
the natural parent.
(2) In the case of an adopted child, a
determination that a U.S. citizen parent has legal custody will be based on
the existence of a final adoption decree. In the case of a child of divorced
or legally separated parents, the Service will find a U.S. citizen parent to
have legal custody of a child, for the
purpose of the CCA, where there has
been an award of primary care, control,
and maintenance of a minor child to a
parent by a court of law or other appropriate government entity pursuant
to the laws of the state or country of
residence. The Service will consider a
U.S. citizen parent who has been
awarded ‘‘joint custody,’’ to have legal
custody of a child. There may be other
factual circumstances under which the
Service will find the U.S. citizen parent to have legal custody for purposes
of the CCA.
[66 FR 32144, June 13, 2001, as amended at 76
FR 53799, Aug. 29, 2011]

§ 322.2

Eligibility.

(a) General. A child will be eligible
for citizenship under section 322 of the
Act, if the following conditions have
been fulfilled:
(1) The child has at least one United
States citizen parent (by birth or naturalization);
(2) The United States citizen parent
has been physically present in the
United States or its outlying possessions for at least 5 years, at least 2 of
which were after the age of 14, or the
United States citizen parent has a
United States citizen parent who has
been physically present in the United
States or its outlying possessions for
at least 5 years, at least 2 of which
were after the age of 14;
(3) The child currently is under 18
years of age;
(4) The child currently is residing
outside the United States in the legal
and physical custody of the United
States citizen parent; and
(5) The child is temporarily present
in the United States pursuant to a lawful admission and is maintaining such
lawful status in the United States.

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Department of Homeland Security

§ 322.3

(b) Additional requirements if child is
adopted. If an adopted child, all of the
requirements in paragraph (a) of this
section must be fulfilled and the child
must satisfy the requirements applicable to adopted children under section
101(b)(1) of the Act.
(c) Exceptions for children of military
personnel. Pursuant to section 322(d) of
the Act, a child of a member of the
Armed Forces of the United States residing abroad is exempt from the temporary physical presence, lawful admission, and maintenance of lawful status
requirements under 8 CFR 322.2(a)(5), if
the child:
(1) Is authorized to accompany and
reside abroad with the member of the
Armed Forces pursuant to the member’s official orders; and
(2) Is accompanying and residing
abroad with the member of the Armed
Forces.

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[66 FR 32144, June 13, 2001, as amended at 76
FR 53799, Aug. 29, 2011]

§ 322.3 Application and supporting
documents.
(a) Application. A U.S. citizen parent
of an alien child (including an adopted
child) may file an application for the
child to become a citizen and obtain a
certificate of citizenship under section
322 of the Act by submitting an application on the form prescribed by
USCIS in accordance with the form instructions and with the fee prescribed
by 8 CFR 103.7(b)(1). If the U.S. citizen
parent has died, the child’s U.S. citizen
grandparent or U.S. citizen legal
guardian may submit the application,
provided the application is filed not
more than 5 years after the death of
the U.S. citizen parent.
(b) Evidence. (1) An applicant under
this section shall establish eligibility
under § 322.2. In addition to the forms
and the appropriate fee as required in
§ 103.7(b)(1) of this chapter, an applicant
must submit the following required
documents unless such documents are
already contained in the Service administrative file(s):
(i) The child’s birth certificate or
record;
(ii) Marriage certificate of child’s
parents (if applicable);
(iii) If the child’s parents were married before their marriage to each

other, proof of termination of any previous marriage of each parent (e.g.,
death certificate or divorce decree);
(iv) Evidence of U.S. citizenship of
parent (i.e., birth certificate; naturalization certificate; FS–240, Report of
Birth Abroad; a valid unexpired U.S.
passport; or certificate of citizenship);
(v) If the child was born out of wedlock, documents verifying legitimation
according to the laws of the child’s residence or domicile or father’s residence
or domicile (if applicable);
(vi) In case of divorce, legal separation, or adoption, documentation of
legal custody (if applicable);
(vii)
Documentation
establishing
that the U.S. citizen parent or U.S. citizen grandparent meets the required
physical presence requirements (e.g.,
school records, military records, utility bills, medical records, deeds, mortgages, contracts, insurance policies, receipts, or attestations by churches,
unions, or other organizations);
(viii) Evidence that the child is
present in the United States pursuant
to a lawful admission and is maintaining such lawful status, or evidence establishing that the child qualifies for
an exception to these requirements as
provided in 8 CFR 322.2(c) pursuant to
section 322(d) of the Act. Such evidence
may be presented at the time of interview when appropriate;
(ix) If adopted, a copy of a full, final
adoption decree;
(x) For adopted children (not orphans) applying under section 322 of
the Act, evidence that they satisfy the
requirements of section 101(b)(1)(E);
(xi) For adopted orphans applying
under section 322 of the Act, a copy of
notice of approval of the orphan petition and supporting documentation for
such petition (except the home study)
or evidence that the child has been admitted for lawful permanent residence
in the United States with the immigrant classification of IR–3 (Orphan
adopted abroad by a U.S. citizen) or
IR–4 (Orphan to be adopted by a U.S.
citizen);
(xii) For a Hague Convention adoptee
applying under section 322 of the Act, a
copy of the notice of approval of the
Convention adoptee petition and its
supporting documentation, or evidence
that the child has been admitted for

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§ 322.4

8 CFR Ch. I (1–1–12 Edition)

lawful permanent residence in the
United States with the immigrant classification of IH–3 (Hague Convention
Orphan adopted abroad by a U.S. citizen) or IH–4 (Hague Convention Orphan to be adopted by a U.S. citizen);
and
(xiii) Evidence of all legal name
changes, if applicable, for the child,
U.S. citizen parent, U.S. citizen grandparent, or U.S. citizen legal guardian.
(2) If USCIS requires any additional
documentation to make a decision on
the application, the parents may be
asked to provide that documentation
under separate cover or at the time of
interview. Parents do not need to submit documents that were submitted in
connection with: An application for immigrant visa and retained by the
American Consulate for inclusion in
the immigrant visa package, or another immigrant petition or application and included in a Service administrative file. Parents should indicate
that they wish to rely on such documents and identify the administrative
file(s) by name and alien number. The
Service will only request the required
documentation again if necessary.
[66 FR 32144, June 13, 2001, as amended at 72
FR 56867, Oct. 4, 2007; 74 FR 26940, June 5,
2009; 76 FR 53799, Aug. 29, 2011]

§ 322.4

Interview.

The U.S. citizen parent and the child
must appear in person before a USCIS
officer for examination on the application under this section. If the U.S. citizen parent is deceased, the child’s U.S.
citizen grandparent or U.S. citizen
legal guardian who filed the application on the child’s behalf must appear.
[76 FR 53799, Aug. 29, 2011]

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§ 322.5

Decision.

(a) Approval of application. If the application for certificate of citizenship
is approved, after the applicant takes
the oath of allegiance prescribed in 8
CFR 337.1 (unless the oath is waived),
USCIS will issue a certificate of citizenship. The child is a citizen as of the
date of approval and administration of
the oath of allegiance.
(b) Denial of application. If the USCIS
decision is to deny the application for
a certificate of citizenship under this

section, the applicant will be furnished
with the reasons for denial and advised
of the right to appeal in accordance
with the provisions of 8 CFR 103.3(a).
An applicant may file an appeal within
30 days of service of the decision in accordance with the instructions on the
form prescribed by USCIS for that purpose, and with the fee required by 8
CFR 103.7(b)(1).
(c) Subsequent application. After an
application for a certificate of citizenship has been denied and the time for
appeal has expired, USCIS will reject a
subsequent application submitted by
the same individual and the applicant
will be instructed to submit a motion
for reopening or reconsideration in accordance with 8 CFR 103.5. The motion
must be accompanied by the rejected
application and the fee specified in 8
CFR 103.7(b)(1).
[76 FR 53800, Aug. 29, 2011]

PART 324—SPECIAL CLASSES OF
PERSONS WHO MAY BE NATURALIZED: WOMEN WHO HAVE
LOST UNITED STATES CITIZENSHIP
BY MARRIAGE AND FORMER
CITIZENS WHOSE NATURALIZATION IS AUTHORIZED BY PRIVATE
LAW
Sec.
324.1 Definitions.
324.2 Former citizen at birth or by naturalization.
324.3 Women, citizens of the United States
at birth, who lost or are believed to have
lost citizenship by marriage and whose
marriage has terminated.
324.4 Women restored to United States citizenship by the act of June 25, 1936, as
amended by the act of July 2, 1940.
324.5 Former citizen of the United States
whose naturalization by taking the oath
is authorized by a private law.
AUTHORITY: 8 U.S.C. 1103, 1435, 1443, 1448,
1101 note.

§ 324.1

Definitions.

As used in this part:
Oath means the Oath of Allegiance as
prescribed in section 337 of the Act.
[56 FR 50490, Oct. 7, 1991]

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