New USCIS Policy Acknowledges Marriages of Same-Sex Couples and Their Right To Confer U.S. Birthright Citizenship to Their Children

New York, NY (August 10, 2021) — Last week, United States Citizenship and Immigration Services (USCIS) released a policy alert and updated their policy manual, removing the requirement that in order to confer U.S. birthright citizenship to their child, a married U.S. citizen parent must be biologically related to the child. Now, USCIS recognizes a child as a citizen from birth if they are biologically related to either a U.S. citizen spouse or their non-U.S. citizen (or naturalized-U.S. citizen) spouse. This policy change follows a similar policy change by the U.S. State Department in May of this year.

“The recent change in USCIS policy is an important step in overcoming the federal government’s previous archaic, narrow, and unlawful definition of what a family is,” said Aaron C. Morris, Immigration Equality’s Executive Director. “We look forward to working with the Biden administration going forward to ensure recognition for all queer families—even those who lack access to marriage equality.”

The Immigration and Nationality Act (INA) states that children born abroad of married U.S. citizens are U.S. citizens from birth so long as one of their parents has lived in the U.S. at some point. No biological relationship between the U.S. citizen parent and the child is required under the law, but until now, USCIS policy necessitated one (unless a court dictated otherwise). This decades-long policy was in place at both USCIS and the U.S. State Department. As a result of both policies, the government denied that many children of married same-sex couples were citizens.

In May, the U.S. State Department changed its policy treating children born of married same-sex couples as born out of wedlock. It expanded birthright citizenship to children born of non-U.S. citizen parents. This victory for queer families came after years of legal challenges from Immigration Equality on behalf of the following four families: Dvash-Banks, Zaccari-Blixt, Mize-Gregg, and Kiviti. Pro bono counsel at Sullivan & Cromwell joined Immigration Equality on the Dvash-Banks and Zaccari-Blixt cases, and Lambda Legal and Morgan Lewis joined Immigration Equality on the Mize-Gregg and Kiviti cases.

“We applaud USCIS’s move and have been fighting for it for years,” added Morris. “The policy change will allow most same-sex couples to obtain proof of citizenship for their children. However, USCIS guidance still runs contrary to the INA, which does not require any biological requirement for a married U.S. citizen to confer citizenship to their child.”

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Immigration Equality is the nation’s leading LGBTQ immigrant rights organization. We represent and advocate for people from around the world fleeing violence, abuse, and persecution because of their sexual orientation, gender identity, or HIV status. 
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