USCIS Updates Guidance on Custody Requirements for U.S. Citizenship: What You Need to Know

By Patricia Perissé Bochi, Immigration Attorney, Miami, Florida

Navigating the path to U.S. citizenship can be overwhelming, especially when it involves children and custody issues. That’s why it is important to stay updated on changes like the recent policy guidance issued by U.S. Citizenship and Immigration Services (USCIS).

I am Patricia Périssé Bochi, an immigration attorney with 20 years of experience assisting families in Miami, Florida, with navigating complex immigration processes. Recently, USCIS issued a key policy update clarifying the legal and physical custody requirements for children acquiring U.S. citizenship. This update impacts how custody is determined for citizenship claims under sections 320 and 322 of the Immigration and Nationality Act (INA). In this article, I will break down this important change and explore what it means for families navigating this process.

Understanding the USCIS Policy Manual

The Policy Manual is the official guide for USCIS, providing clear instructions on immigration laws and policies. It ensures consistent decision-making by USCIS officers and is regularly updated to reflect legal and policy changes.

Highlights of the Custody Guidance Update

The Custody Guidance update, found in Volume 12, Part H of the USCIS Policy Manual, is designed to ensure consistency when determining custody for citizenship purposes. Here are some key highlights:

• Clarified Custody Rules: USCIS has issued more comprehensive guidance on the legal and physical custody requirements for U.S. citizen parents and their children. This enhanced clarity is pivotal for families navigating custody arrangements or seeking citizenship for their children.
• Legal Custody: If there is no court order or specific law governing legal custody, USCIS may recognize a U.S. citizen parent as having legal custody if the parent has actual, uncontested custody. Additionally, retroactive corrections to custody orders (nunc pro tunc orders) and private custody agreements may be acknowledged in certain circumstances.
• Physical Custody: Physical custody is defined as the child living with the U.S. citizen parent. USCIS will now explicitly consider this when determining eligibility for acquiring citizenship.
• Expanded Guidance on Pre-2000 Cases: If you are addressing events that occurred prior to the enactment of the Child Citizenship Act of 2000, the updated guidance offers detailed clarification on the application of the requirements under former INA section 321, with a specific focus on legal custody.
• Certificates of Citizenship and Oath of Allegiance: To receive a Certificate of Citizenship, applicants must take the Oath of Allegiance unless they qualify for a waiver. This update reiterates the importance of this step in the process.

What This Means for Families

This update is particularly significant for families navigating complex custody arrangements. It provides clarity in situations where there is uncertainty regarding legal custody in the absence of a formal court order, as well as offering detailed requirements for physical custody. These updates establish the necessary framework to ensure consistent and accurate determinations, thereby minimizing potential confusion.

How We Can Help

Each family’s situation is unique, and understanding these updates can present challenges. If you have questions regarding how this policy update may impact your child’s path to citizenship, I encourage you to reach out. Please contact my Miami office today to schedule a consultation. Together, we will ensure that you have the necessary information and support to proceed with confidence.