CCA 2000 גזירה מאומצת בחו"ל / תושבי חוץ (INA 322)

תרחישים לדוגמה

• ELIGIBLE under INA §322 = 8 USC §1433. Mother has 26 years of U.S. physical presence — far exceeding the 5-year/2-after-14 test. Mother has legal and physical custody. Daughter is under 18. Daughter may enter on a B-2 visitor visa for the interview.

  INA §322 = 8 USC §1433 applies to children residing outside the U.S. who are in the legal and physical custody of a U.S.-citizen parent. Mother is a U.S. citizen. Mother satisfies the §301(g)-referenced 5-year/2-after-14 physical-presence test (26 years in California, all after birth through age 26). Daughter is under 18. The Mexican divorce decree establishing primary legal custody with the mother satisfies the custody element. The daughter need not be an LPR — §1433(b) allows for lawful temporary presence at the interview. The daughter may obtain a B-2 visitor visa (MRV fee $185) for the interview. Upon N-600K approval, USCIS issues a Certificate of Citizenship; daughter becomes a U.S. citizen. Key evidence: custody decree, mother's U.S. birth certificate and California records, daughter's Mexican birth certificate.

• NOT ELIGIBLE under §322 as presented. Father does not have legal custody of the child — the German court order grants sole legal custody to the mother. INA §322 requires the child to be in the 'legal and physical custody' of the U.S.-citizen parent.

  INA §1433(a)(2) requires the child to be 'in the legal and physical custody of the citizen parent.' A German court order granting sole legal custody to the German mother means the U.S.-citizen father does not have legal custody. The father's physical-presence test (22 years in Texas) is satisfied, but the custody element is not met. The father would need to obtain at minimum joint legal custody through a German court modification before the N-600K could be approved. The grandparent alternative under §1433(c) would not help here because the father (the citizen parent) is present and capable — the grandparent alternative applies when the citizen parent is absent or unavailable. The father should seek legal advice on German custody law modification before refiling.

• ELIGIBLE under INA §322 via the grandparent alternative. U.S.-citizen grandmother stands in loco parentis. She meets the 5-year/2-after-14 physical-presence test. Grandchild is under 18. Grandchild should enter as LPR for the interview (immigrant visa).

  INA §1433(c) provides the grandparent alternative when the U.S.-citizen parent is absent. The father's death qualifies as absence within the meaning of §1433(c). The U.S.-citizen grandmother with Philippine guardianship court order stands in loco parentis. Grandmother satisfies the 5-year/2-after-14 physical-presence test (40 years in California). If the grandchild enters the U.S. as an LPR (immigrant visa obtained through the grandmother's sponsorship as the lawful guardian), the child satisfies the lawful presence requirement. Upon N-600K approval, the grandchild receives the Certificate of Citizenship. Key evidence: father's death certificate, Philippine court guardianship order, grandmother's U.S. birth certificate and California residence records, grandchild's Philippine birth certificate and immigrant visa.

• Potentially AUTOMATICALLY derives citizenship under INA §320(c) = 8 USC §1431(c) (the 2020 military/civil servants amendment, VC-09) rather than through a §322 application — counsel must evaluate §320(c) automatic derivation FIRST before filing N-600K.

  The 2020 amendment (Citizenship for Children of Military Members and Civil Servants Act, effective 26 Mar 2020, VC-09) added INA §320(c) = 8 USC §1431(c), extending AUTOMATIC derivation to children residing outside the U.S. with a U.S.-citizen parent stationed abroad on qualifying U.S. government service (including State Department). If §320(c)'s conditions are met — parent is a U.S. citizen, child is under 18, child is in the parent's legal and physical custody, parent is stationed abroad on qualifying service — citizenship derives automatically by operation of law. If automatic derivation under §320(c) has already occurred, a §322 N-600K application is unnecessary and wastes $1,385 (paper) / $1,335 (online); the parent would instead file an N-600 (not N-600K) to document already-derived citizenship. However, if §320(c) conditions are not met (e.g., the government employment does not qualify, or the child is not an LPR as required by §320(c)), §322 remains the applicable application-based route.

• NOT ELIGIBLE. Parent fails the 5-year/2-after-14 physical-presence test imported from INA §301(g) = 8 USC §1401(g). Parent has only 3 years of physical presence (less than the required 5 years).

  INA §322 = 8 USC §1433 imports the INA §301(g) physical-presence formula: at least 5 years of U.S. physical presence, of which at least 2 were after the parent's 14th birthday. The parent has only 3 years total (ages 18-21), which is below the 5-year minimum. The 2 years after age 14 requirement is satisfied (all 3 years were after age 14), but the overall 5-year floor is not met. No exception or waiver to the 5-year floor exists. Options: (a) the parent accumulates additional U.S. physical presence and reapplies before the child turns 18; (b) the child immigrates to the U.S. as an LPR and may qualify under automatic §320 derivation (if the other conditions of §320 are met before age 18); or (c) the child later naturalizes under INA §316 as an adult.