The new rules clarify when a U.S. citizen parent is considered to have legal custody, especially in cases where there’s no court ruling or when private custody agreements are involved. It also defines physical custody as where the child lives with the parent. These updates apply to applications pending on or after November 19, 2024, and aim to provide a more consistent process for determining custody in citizenship cases. The main changes in this update are:

1. Legal Custody of the U.S. Citizen Parent:
   • USCIS has expanded its guidance on when a child is considered to be in the legal custody of a U.S. citizen parent. This includes clarifying that a nunc pro tunc (retroactive) correction of a custody order does not affect the custody determination.
   • USCIS may also recognize private custody agreements under certain conditions.
   • If a U.S. citizen parent has actual uncontested custody of a child and no court has decided legal custody, and the law doesn’t specify custody, USCIS will consider that parent to have legal custody.
2. Physical Custody:
   • A U.S. citizen parent is considered to have physical custody of a child if the child lives with the parent.
3. Derivation of Citizenship Before the Child Citizenship Act of 2000:
   • More detailed guidance is now provided about how children could derive citizenship before the Child Citizenship Act of 2000, specifically regarding the legal custody requirements under former INA section 321.
4. Oath of Allegiance:
   • USCIS cannot issue a Certificate of Citizenship unless the applicant has taken the Oath of Allegiance or is eligible for a waiver.

This updated guidance takes effect immediately for all applications pending on or after November 19, 2024. It aims to make the citizenship process more consistent and provide clearer rules on determining legal and physical custody for eligibility for a certificate of citizenship. These changes align with the goals of Executive Order 14012, which seeks to improve the U.S. immigration system and make it more inclusive.

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Policy-manual-updates/20241119-CustodyInAcquisitionOfCitizenship.pdf