A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, November 23, 2009

ACQUIRING U.S. CITIZENSHIP WITHOUT KNOWING IT

ACQUIRING U.S. CITIZENSHIP WITHOUT KNOWING IT

By Paul Szeto, Esq.

Many people know that one may acquire U.S. citizenship through birth in the United States and naturalization by residence. There are other ways that one may also acquire U.S. citizenship. Some of them are automatic while others are by petition. For example, one may acquire citizenship automatically through birth to U.S. citizenship parent or parents. Another example is through naturalization by combining birthrights and residence. These other avenues of becoming U.S. citizens are significant because are usually faster than the normal geeen card-naturalization process; some of them are even automatic without additional requirements on the part of the applicant. This article will discuss three less known ways to become U.S. citizens.

Acquisition of U.S. citizenship at birth

Generally, a child born outside of the United States may acquire citizenship if one or both of his parents are U.S. citizens. This is so even if the child was born out-of-wedlock, as long as the child was subsequently legitimatized. Although the principle behind acquisition at birth is simple, the specific requirements government such a process can be complicated as they were created by a series of Congressional acts over the years. In general, the nationality laws require that the U.S. citizen parent to have resided in the U.S. for certain periods of time before the applicant child was born in order for the citizenship to be transmitted by "bloodline", so to speak.

The analysis must start with the date of birth of the applicant as it will determine the law that is applicable to the case. For example, if the applicant was born before May 24, 1934, citizenship is transmitted if either the father or mother was a U.S. citizen and had resided in the U.S. If the child was born in between May 24, 1934 and January 13, 1941, in addition to the residency requirement, there were certain retention requirements that must be met before citizenship can be transmitted. They are mostly residence requirements on the part of the applicant. If the applicant child was born between 1941 and 1952, the citizen parent must have lived in the U.S. ten years before the child was born, five of which after reaching the age of 16. Subsequent laws provided even more complex requirements, taking in account events like military service and employment with U.S. government or certain international governmental agencies into account.

Based on the law in effect at the time, then the applicant's case can then be evaluated. First, we need to decide if either one or both parent is indeed a U.S. citizen. If neither of them is, then we can stop the analysis. If both of them are U.S. citizens and one of them had resided in the U.S. prior to the birth of the child, then chances are citizenship was transmitted. If only one parent is a U.S. citizen, then we must apply the applicable statute to decide whether or not transmission requirements have been met.

As discussed above, since 1940 certain additional retention requirements were imposed on the applicant to acquire citizenship. If the child acquires citizenship through one parent only, it requires that the child born aboard to have lived or physically present in the United States for a certain number of years before a certain age. These retention requirements were eliminated in 1978 by Congress. In 1994 the law changed further again and now those who lost citizenship due to these retention requirements may take the oath of allegiance to reclaim citizenship. There are additional requirements for an applicant born out of wedlock depending on the date of birth.

It should be noted that the applicant who is born aboard has the burden to prove that he or she is eligible for the acquisition of U.S. citizenship by means of birth certificates, official documents, school records, medical records, church documents, sworn statements, etc. However, U.S. parents do not have to prove exactly how many months, weeks, days, etc., they resided in the U.S. for the purposes of transmission as long as the number of years can be established.

Acquisition of Citizenship By Derivation

The Child Citizenship Act of 2000 allows automatic acquisition of U.S. citizenship is through a combination of birth rights and residence. Generally, a child born outside of the United States automatically becomes a U.S. citizen if the following conditions are met: 1) At least one parent is a U.S. citizen, either by birth of naturalization; 2) The child is under the age of 18; and the child is residing in the U.S. in the legal and physical custody of the citizen pursuant as a lawful resident. It should be noted that legally adopted child may also benefit from this provision of law. Unfortunately, this law is only applicable to applicants who are 18 or under on February 27, 2001, when the law was passed. Under the older version of the law, a child could become a derivative U.S. citizen when 1) one parent was naturalized while the child was under 18; and 2) the child was residing in the U.S. after a lawful admission for permanent residence at the time the parent was naturalized (or began to reside permanently in the U.S. under the age of 18 and was in the custody of the parent).


Acquisition of Citizenship by applying for a Certificate of Citizenship

Finally the Immigration and Nationality Act under Section 322, also provides that a parent who is a citizen of the U.S. (or a grandparent or citizen legal guardian if the parent has died during the preceding five years) may apply for naturalization on behalf of a child born outside of the United States if certain conditions are met. If the following requirements are met, the U.S. government will issue a Certificate of Citizenship to the applicant: 1) At least one parent is a U.S. citizen; 2) The U.S. citizen has been physically lived in the U.S. or its outlying possessions for five years or longer, at least two which after the age of 14 (or has a citizen parent who has met this requirement); 3) The child is under the age of 18; and 4) The child is residing outside of the U.S. in the legal and physical custody of the applicant parent (or if parent is dead, the legal guardian); and 5) The child is temporarily present in the U.S. as a legal resident, and is maintaining such law status.

Conclusion

A "normal" application for naturalization requires the applicant to maintain continuous legal residence and physical presence in the U.S. for a certain period of time. It also requires that the applicant be of good moral character, understand American government and history, as well as be able to speak, write and understand English. The current naturalization process is also delayed by the backlog of security checks. Hence, the above ways of acquiring U.S. citizen offer some very attractive alternatives for those who are qualified. One caveat is that the U.S. citizenship and nationality laws are extremely complicated. Careful analysis must be conducted before jumping into any conclusions of eligibility.

(Paul Szeto, an immigration attorney and a former INS attorney, regularly writes on immigration issues. His contact info: 732-632-9888, www.szetolaw.com)

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