The USCIS provided the following table as an example of what constitutes physical presence verses residency. It "rescinds previously established USCIS policy, which stated that certain children who were living outside the United States were considered "residing in" the United States".
A new policy issued by the U.S. Citizenship and Immigration Services says that starting October 29, the children who are born to U.S. service members outside the country will not automatically be considered citizens.
But under the new policy, as of October 29, certain parents serving overseas in the US armed forces and with other branches of the federal government will be required to formally apply for USA citizenship on their children's behalf before their kids turn 18.
USCIS identified three sets of children living outside the US whom the policy could affect: children of non-U.S. citizens adopted by USA citizen employees or service members; children of non-U.S. citizen parents who become citizens after the child's birth; and children of US citizens who do not meet residency requirements to transmit citizenship to their children at birth. This must be done before the child's 18th birthday. "Similarly, leave taken in the United States while stationed overseas is not considered residing in the United States even if the person is staying in property he or she owns".
The policy said prior USCIS guidance is "in conflict" with several provisions of the INA, which includes the definition of "residence". It will apply only in cases of foreign adoption by US citizen parents, or children born to parents were not USA citizens at the time of the child's birth.
"The new policy "[does] not affect anyone who is born a US citizen, period", USCIS Acting Director Ken Cuccinelli said in a statement to Military.com. Sickened to hear that citizenship will now become hard for kids born overseas to military families. It only affects children who were born outside the U.S. and were not United States citizens.
The prior guideline also "resulted in confusion" as to the date a child acquired USA citizenship, the new policy said. "This does NOT impact birthright citizenship", he tweeted. "This policy aligns our process with the Department of State's procedure". "This also appears to be an initial step toward ending birthright citizenship, something which the president has threatened to do-and which would be unconstitutional".
Still, the policy, which takes effect on October 29, sparked confusion among military and diplomatic groups who immediately denounced the alert, concerned that the rule change would place hurdles before children of federal employees and military workers serving overseas. The policy update doesn't deny citizenship to the children of USA gov employees or members of the military born overseas. "Impacting one person is too many", said Martin Lester, chair of the American Immigration Lawyers Association's Military Assistance Program, which provides pro bono immigration law services to United States service members.