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A non-genetic, non-gestational legal parent of a child born through assisted reproductive technology (ART) outside of the United States may transmit U.S. citizenship to the child under certain circumstances, U.S. Citizenship and Immigration Services (USCIS) Director Ur Mendoza Jaddou has announced.

Director Jaddou, the first woman to be appointed to that position, made the announcement in one of her first official acts following Senate confirmation on July 30, 2021.

Citizenship may be transmitted if:

  • The parent is married to the child’s genetic or gestational parent at the time of the child’s birth; and
  • The relevant jurisdiction recognizes both parents as the child’s legal parents.

This is the latest in a line of complex policy changes that have started to recognize the realities of modern families.

In 2014, USCIS recognized gestational mothers who used ART as meeting the definition of “mother” or “parent” in immigration law even if the mother had no genetic connection to the child. As far as transmitting U.S. citizenship to a child born abroad, surrogacy was considered an “out of wedlock” birth (even if the legal parents were married). For transmission to occur, the child had to have a genetic or gestational relationship to a U.S. citizen parent.

By May 2021, the denial of U.S. citizenship to one twin born to same-sex parents because that twin did not have a biological connection to the U.S. citizen parent (although the other twin did) led to another change in the guidelines. Same-sex or heterosexual parents of children born abroad using in vitro fertilization or surrogacy could transmit U.S. citizenship if the parents were married and the child had biological ties to at least one of the parents. The biological tie could be to a non-U.S. citizen parent.

Pursuant to USCIS’ new policy, a child’s genetic parents (or the legal gestational parent and one of the genetic parents) do not have to be married to one another for a child to be considered born “in wedlock” for family-based immigration petitions. Director Jaddou stated, “USCIS is taking a crucial step towards ensuring fair access and support for all families and their loved ones . . . . We are committed to removing unnecessary barriers promoting policies for all people as they embark on their journey to citizenship and beyond.”

Jackson Lewis attorneys are available to assist with any questions regarding the transmission of U.S. citizenship and the acquisition of U.S. citizenship.

In 2016, a married gay couple in Canada became parents of twins using a surrogate mother. One father is a U.S. citizen, the other an Israeli citizen. The two fathers made a decision to contribute one embryo each to the surrogate mother so the twins would be biologically related to each of them. However, that turned out to be a determinative factor when the parents went to the U.S. Consulate in Toronto to register the twins for U.S. citizenship. Only one of the twins, Aidan, who was biologically related to his U.S. citizen father, was granted a U.S. passport. The family was devastated by this decision. When the Dvash-Banks family decided to move to California, the other twin, Ethan, had to enter as a visitor on a B visa. His B visa eventually expired, leaving him “undocumented.”

With regard to children born in wedlock, section 301 of the Immigration and Nationality Act states that a “child born outside of the United States . . . acquires citizenship at birth if at the time of birth one parent is a foreign national and the other parent is a U.S. citizen; and the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.” Section 309, which applies to children born out of wedlock, requires, among other things, that “blood relationship between the child and the father is established by clear and convincing evidence.” The State Department, in its published policy, apparently reads the “blood relationship” clause into section 301 and would not budge on that policy for the Dvash-Bankses.

The Dvash-Bankses challenged the Department of State’s (DOS) decision with regard to Ethan in the U.S. District Court, Central District of California. In response to a motion for summary judgement, Judge John F. Walter declared that Ethan was a U.S. citizen and ordered DOS to issue him a U.S. passport as soon as possible. The order applied only to Ethan and did not prevent DOS from applying its “blood relationship” policy to other families. In post-summary judgement proceedings, the Dvash-Bankses argued, “The State Department’s refusal to approve [Ethan’s] applications . . . and its persistence in litigating this action full-bore to summary judgement, was manifestly unreasonable and not substantially justified.” The Judge awarded $1.3 in attorney’s fees and costs to the couple.

Ethan’s fathers believe that a straight couple who had used assistive reproductive technology would never have been asked to submit to a DNA test, as they were required to do by DOS. In a similar case, a lesbian couple of one U.S. citizen and one Italian citizen whose children were born in London brought a claim in the federal district court in D.C. – using the same lawyers who represented the Dvash-Banks family.