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.)

Friday, August 30, 2019

New Residency Rule Affects Foreign-Born Children of American Citizens

Qualifying for American citizenship means meeting many criteria, some of which involve the concepts of "physical presence" and "residency".  USCIS recently published a policy guidance clarifying these terms and explaining how they apply in different situations.

Why does it matter?  Whether a foreign-born child acquires U.S. citizenship from their parent relies heavily on whether the parent has established U.S. residency. U.S. citizens that were born in America but never actually resided there for any period of time cannot transmit their citizenship to their foreign-born child. This is because the parents do not meet the residency requirement.

The law defines "residence" as the principal place a person lives in. The person's intention does not matter.  Generally, the longer someone lives at a particular place, the more likely they can claim it legally as their residence.  

USCIS clarifies that being physically present in a place does not prove legal residency. Someone that moves frequently to hotels in different towns or cities without renting or owning property has no U.S. residency, but has physical presence. Regular visits to the United States from a foreign domicile also does not establish residence, but accumulates physical presence.

What counts as U.S. residency? USCIS gives the example of a man that works in the U.S. for 9 months out of 12 for 8 years, spending the remaining 3 months of each year in Mexico with family. He is physically present for each of those 9 months, and does establish U.S. residency. Stable, long-term residence at a U.S. address appears to be the dominant factor.

Citizens can meet the residency requirement by providing evidence of residency in the United States. One form of evidence is the citizen's birth certificate with their mother's U.S. address on it. Other forms of evidence include property lease and receipts, utility bills, income tax records, employment records, U.S. marriage certificate, etc.

Families of U.S. government workers and armed forces members are also affected by these changes.  For many years, children living abroad with their citizen parent are considered as having fulfilled the residency requirement for citizenship and, therefore, may acquire citizenship through their citizen parents. Under the new policy, children in certain families will no longer be able to acquire U.S. citizenship automatically.  These include parents who have not established U.S. residency or who became U.S. citizens after their children were born; citizen parents who adopted a child while stationed abroad; and naturalized citizens who have not met the residency requirements for transmitting citizenship to their children, 

Also, armed forces members stationed abroad are not considered as residing in the U.S. during leave, even if they are staying on their own property.

This new guidance will be effective from October 29, 2019 onward. President Trump has expressed his desire to end birthright citizenship.  More changes regarding citizenship rights may be forthcoming. 

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