My best friend, 47 (He turned 18 before CCA enacted, so he is only eligible under the OLD INA 321), who actually applied for naturalization using N-400 was denied after passing interview. He was made aware of this on his oath ceremony day (for naturalization) and informed to file N-600 saying he has been a US Citizen since 1995, when his divorced father who had joint custody naturalized. Despite my friend who had been renewing his I-551 using I-90 for the last 3 decades was shocked.
Of course, my friend reached out to his congressman demanding answers from USCIS to why my friend was granted the renewals for his green card all these years causing him to lose his rights as a US Citizen such as voting, and etc. and specifically stated saying "He thought the naturalizing parent had to have
SOLE LEGAL CUSTODY." according to
https://www.ilrc.org/sites/default/files/resources/natz_chart-c-2022-7-19.pdf.
Well he received a response from the USCIS in writing that USCIS no longer requires "sole custody" when adjudicating minors who derived citizenship UNDER INA 321, and "joint custody is accepted if the evidence such as divorce decree addressing custody or a custody decree" is provided.
A. General Requirements: Child Automatically Acquiring Citizenship after Birth
www.uscis.gov
B. Legal and Physical Custody of U.S. Citizen Parent
Legal custody refers to the responsibility for and authority over a child. For purposes of this provision, USCIS presumes that a U.S. citizen parent has legal custody of a child and recognizes that the parent has lawful authority over the child, absent evidence to the contrary, in all of the following scenarios:
[8]
- A biological child who currently resides with both biological parents who are married to each other, living in marital union, and not separated;
- A biological child who currently resides with a surviving biological parent, if the other parent is deceased;
- A biological child born out of wedlock who has been legitimated and currently resides with the parent;
- An adopted child with a final adoption decree who currently resides with the adoptive U.S. citizen parent;[9]
- A child of divorced or legally separated parents where a court of law or other appropriate government entity has awarded primary care, control, and maintenance of the child to a parent under the laws of the state or country of residence.
USCIS considers 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 USCIS may find the U.S. citizen parent to have legal custody to be determined on a case-by-case basis.
This is what the USCIS website says.
My friend, instead of following my advise and filing for the US Passport back in early 2000s, read stories being told wrongfully by his lawyers who said he wasn't qualified and must naturalize since the naturalizing parent had a joint custody and not sole custody, ironically found out that I proved him wrong.
I guess it is really up to the director not up to us. However, your source is also not from the USCIS and regardless of what we think, it is up to the specific director of the USCIS to determine whether the legal custody had to be "sole" or "joint" during INA 321 era (pre CCA of 2000) and my friend's adjudicating director have stated that the USCIS considers joint custody acceptable. What better source than the response from the USCIS director would anyone need to clarify? Please advise.