There is a lot of misleading information that is being reported out there about the upcoming change. The main misconception is that this change has to do with the automatic US citizenship at birth for most children born to US citizens abroad. It doesn't. The upcoming change deals with a different section of law that deals with citizenship for minors who have immigrated to the US as non-citizens and who have become US permanent residents.
Here is the actual official Policy Alert PDF from the USCIS that specifies the changes to the USCIS Policy Manual. It consists of two independent parts. The first part (pages 2-5) adds the definition for "residence". There is no policy change here. The definition that is being added is the same as what the term "residence" is currently already understood as; it just hadn't been explicitly written in the manual. This is not the part that is triggering the news reports.
The second part (pages 6-11) is the actual policy change that is triggering the news reports. It is an amendment to the USCIS Policy Manual, Volume 12, Part H, Chapter 4, titled "Automatic Acquisition of Citizenship after Birth (INA 320)", and Chapter 5, titled "Child Residing Outside of the United States (INA 322)", both dealing with citizenship for children after birth. There is no change to USCIS Policy Manual, Volume 12, Part H, Chapter 3, which deal with US citizenship at birth.
If you read the change is about, it is a change to the interpretation of the phrase "residing in the United States" for the purposes of INA 320. If you read the USCIS Policy Manual chapter on INA 320, it is a section of law which says that if a child is a US permanent resident (i.e. the child is a non-US citizen who immigrated to the US and is now a "green card holder"), under 18, residing in the US in the legal and physical custody of a US citizen parent, that child automatically becomes a US citizen. If the parent is a US citizen, why isn't the child already a citizen at birth, you might ask. Well, here are some examples: 1) the parent was not a US citizen when the child was born, and only naturalized to become a citizen later; 2) the parent was a citizen at the time of the child's birth, but did not meet the requirements to transmit US citizenship to a child born abroad at the time; or 3) the parent adopted the child after the child's birth.
One of the requirements in INA 320 is that the child must be residing in the US in order for the automatic grant of citizenship to take place. This is normally an easily-met condition, since the child must be a US permanent resident, and US permanent residents are expected to reside in the US anyway (or risk losing their permanent resident status). One exception is that US permanent residents who are serving the US government or military abroad, or who is the dependent of someone serving the US government or military abroad, can live outside the US without losing their permanent residency. In this case, USCIS previously had interpreted the "residing in the United States" condition to have an exception, so that it also includes a permanent resident child who was a living abroad as a dependent of a US military or government employee stationed abroad. However, as described in the change, the Department of State, which issues US passports, did not interpret it to have such an exception. USCIS will also no longer have this exception in its interpretation.
This change deals with an extremely rare edge-case situation. Basically, the child had to not have been a US citizen at birth (so the parent was not a citizen when the child was born, or did not meet the require to transmit citizenship, or adopted the child), and then the parent petitioned the non-citizen child to immigrate to the US and get a green card. Now, if at the time the child got the green card, if the child was residing in the US and the parent was a US citizen, the child would have immediately become a US citizen under INA 320 then. So in order for that not to have happened, either the child was immediately residing abroad with the US military or government employee upon getting the green card, or the parent was not already a US citizen at the time of the child getting a green card, and by the time the parent became a citizen, the parent was already stationed abroad, so there was no time when the child was residing in the US with a US citizen parent.
In order for the child to get US citizenship in this rare situation, either 1) the parent files N-600K for the child to naturalize under INA 322, or 2) the child returns to residing in the US with the US citizen parent prior to turning 18, at which point they would automatically become a US citizen under INA 320 without an application.
You quoted the section of the Naturalization Act of 1790 that deals with citizenship at birth for children born abroad. (That Act was repealed long ago and its provisions regarding citizenship at birth for children born abroad have been amended and superseded numerous times. The current rules for automatic citizenship at birth for children born abroad to US citizen parent(s) are in INA 301(c) and 301(g).) But this change does not change any of the rules regarding citizenship at birth for children born abroad.
One incorrect claim is that the change means that children born abroad to US citizen parents now have to file an application in order to have US citizenship. This is incorrect. When the conditions in the law for transmitting citizenship to a child born abroad are met, the child is automatically and involuntarily a US citizen, without needing any application or registration (the same way a child born in the US is automatically and involuntarily a US citizen, without needing any application or registration). Of course, it is a good idea for the parent to apply for a CRBA and/or US passport for the child early, since evidence might get lost over time, but technically, since the child is already a US citizen, he/she can apply for a US passport at any point in his/her life. On the other hand, if the conditions for transmitting citizenship are not met, the child is not a US citizen, and can only get US citizenship through immigrating to the US to become a green card holder (and getting citizenship as a minor through INA 320 or by applying as an adult), or through INA 322 (which usually requires taking an oath in the US); in this case, simply registering the child at a consulate is not enough to get the child citizenship.
Another incorrect claim deals with a deceptively similar provision regarding citizenship at birth for children born abroad. In the case of a child born abroad to one US citizen parent and one alien parent, INA 301(g) provides that the child is a US citizen if the US citizen parent was physically present in the US for a cumulative total of 5 years before the child's birth, including 2 years after the parent turned 14. There is an exception where time spent outside the US as an employee of the US government or military, or as the dependent of such an employee, is counted in the 5 years of physical presence.
(g) a person born outside the geographical limits of the United States
and its outlying possessions of parents one of whom is an alien, and
the other a citizen of the United States who, prior to the birth of
such person, was physically present in the United States or its
outlying possessions for a period or periods totaling not less than
five years, at least two of which were after attaining the age of
fourteen years: Provided, That any periods of honorable service in the
Armed Forces of the United States, or periods of employment with the
United States Government or with an international organization as that
term is defined in section 288 of title 22 by such citizen parent, or
any periods during which such citizen parent is physically present
abroad as the dependent unmarried son or daughter and a member of the
household of a person (A) honorably serving with the Armed Forces of
the United States, or (B) employed by the United States Government or
an international organization as defined in section 288 of title 22,
may be included in order to satisfy the physical-presence requirement
of this paragraph. This proviso shall be applicable to persons born on
or after December 24, 1952, to the same extent as if it had become
effective in its present form on that date;
This exception sounds deceptively similar to the exception that USCIS is actually getting rid of in this policy change (both having to do with time abroad as a dependent of a military or government employee counting somehow as being in the US), so some people have incorrectly claimed that USCIS is getting rid of this exception too. But that is not the case, for several obvious reasons. 1) This exception is explicitly provided for in a Congressional statute, and executive branch manuals cannot override it. 2) The policy change concerns INA 320, and not INA 301, which is the section dealing with citizenship at birth. And in fact, the USCIS Policy Manual section on citizenship at birth for children born abroad to one US citizen parent and one alien parent (Volume H, Part H, Chapter 3, section B-3) mentions this exception, and, remember, this chapter is not being changed by this policy change.
Time abroad counts as physical presence in the United States if the
time abroad was:
- As a member of the U.S. armed forces in honorable status;
- Under the employment of the U.S. government or other qualifying organizations; or
- As a dependent unmarried son or daughter of such persons.