PART 322—CHILD BORN OUTSIDE THE UNITED STATES; REQUIREMENTS FOR APPLICATION FOR CERTIFICATE OF CITIZENSHIP Authority: 8 U.S.C. 1103, 1443; 8 CFR part 2. Source: 66 FR 32144, June 13, 2001, unless otherwise noted. § 322.1 What are the definitions used in this part? As used in this part the term: Adopted Adopted child Child Lawful admission Joint custody, Legal custody (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. (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. (b) Additional requirements if child is adopted. (c) Exceptions for children of military personnel. (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. [66 FR 32144, June 13, 2001, as amended at 76 FR 53799, Aug. 29, 2011] § 322.3 Application and supporting documents. (a) Application. (b) Evidence. (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., (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 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; 85 FR 46928, Aug. 3, 2020] § 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] § 322.5 Decision. (a) Approval of application. (b) Denial of application. (c) Subsequent application. [76 FR 53800, Aug. 29, 2011, as amended at 85 FR 46928, Aug. 3, 2020]