During his administration, President Trump has repeatedly proclaimed his intentions on ending birthright or automatic citizenship for those born within the United States. To be clear, birthright citizenship is still intact, but the latest USCIS policy memo pertaining to residency for citizenship arguably represents an encroachment. Policy Memo PA-2019-05, issued on August 28 of this year, received much attention in the media regarding changes to the way USCIS will now adjudicate citizenship petitions for children of US government employees and armed forces members. Under the new policy, as elaborated in the memo, children of US government employees and armed forces members residing outside the United States will no longer be considers “residing in the United States” for purposes of citizenship applications filed under section 320 of the Immigration and Nationality Act. Section 320 is a part of the law that grants citizenship to certain children under the age of 18 who did not acquire citizenship at birth but who are residing in the legal and physical custody of a citizen parent pursuant to a lawful admission for permanent residence. (In these cases, the child applies for a Certificate of Citizenship, as opposed to filing to become a citizen through the naturalization process.) The upshot of the new rules, effective October 29, 2019, is that these children born abroad must now pursue applications for citizenship under a different section, notably section 322, which is more cumbersome and requires the child to complete the naturalization process before the age of 18. Because this is an extremely complex area, some news outlets may have exaggerated and oversimplified its impact, though there is no dispute amongst most immigration attorneys that the new guidance discriminates against armed forces families and threatens to damage morale.
What the media did not cover is the thrust of the memo regarding residence, which potentially affects a significantly larger population of people born abroad to US Citizens. Under certain sections of the law, a person born abroad outside the United States may automatically acquire US Citizenship through his/her US Citizen parent. Under these provisions, the US Citizen parent is said to transmit his/her citizenship to the child, provided that he/she can demonstrate the requisite “residence” in the US. The memo makes clear, however, that residence should not be confused with physical presence. An individual may be physically present in the US, but not necessarily reside in the US. Residence is defined as the person’s principal actual dwelling place, in fact, without regard to intent. Someone who lives a transient lifestyle, for example, may be able to demonstrate physical presence in the US but not necessarily residence. As such, commuters and people who temporarily visit the US will not generally be considered to be residing in the US. On the other hand, the memo lays out some relevant items that may constitute documentary proof of residence:
· US marriage certificate indicating the address of the bride and groom
· Property rental leases, property tax records, and payment receipts
· Utility bills
· Automobile registrations
· Professional licenses
· Employment records or information
· Income tax records and income records, including W-2s
· School transcripts
· Military records
· Vaccination and medical records
In all fairness, the new policy regarding residence does not necessarily break new ground. The law has not technically changed. However, it does embolden officers with increased authority to deny citizenship acquisition claims by inordinately parsing their residence, which arguably goes beyond the intent and spirit of the statute; and if abused, may result in untold numbers of cases being arbitrarily denied.