Intent Disregarded When Punishing False Citizenship Claims

Do not check the wrong box next time when you are filling out application forms.  It could ruin your chances of getting a green card.  When applying for a job or a government benefit in America, oftentimes the applicant has to check a box in the application form regarding his or her immigration status in the US.  If you are not a citizen but mistakenly check that option, you could be in some serious trouble.

Immigration law states that falsely claiming to be a U.S. citizen to gain government benefits is a grounds for inadmissibility. Any claim from September 30, 1996 onward are subject to this law.  The consequences are heavy: those found guilty are deported from the country and are permanently unable to re-enter.

But what if the false claim was made unknowingly? The foreign national could have had no idea they were doing something illegal. Some may have been scammed or misled, and others could have misunderstood a question or made a mistake on a document.

An EOIR (Executive Office for Immigration Review) court decision determined that intent does not matter -- false claims of citizenship will be punished regardless. The case involved a foreign national who purchased a false certificate of naturalization from an actual officer of the INS (Immigration and Naturalization Service). He argued that he believed that he was a citizen all along and did not pursue benefits. The court confirmed that a false claim is a false claim regardless, and must be punished accordingly.

This decision is now incorporated into the USCIS Policy Manual. There are no waivers for inadmissibility for false claim of citizenship. One exception still exists, however, for a permanent resident under 16 years-old with citizen parents (adoptive parents included). If the minor lived in the U.S. all their life and believed they were a citizen, they are exempt from the rule.

For this ground of inadmissibility to apply, the false claim to U.S. citizenship must be used to gain a government benefits such as public or immigration benefits.  It does not apply to, for example, an application for a job at a private company.   

Persons who are not a U.S. citizen (including green card holders) should take extra steps to protect themselves. Pay close attention to questions when filling out forms for work or applications at the DMV, social security office, etc. If you want to become a citizen, familiarize yourself with the proper steps by consulting with a legitimate immigration attorney.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

Good Moral Character for U.S. Naturalization

Naturalization is the most common way for a foreign national to acquire U.S. citizenship.  USCIS is now expanding on the good moral character (GMC) requirement for naturalization, based on the Attorney General decision regarding DUI (driving under the influence) convictions and GMC last month.

Good moral character (GMC) is necessary to become a citizen. If an applicant has a history of unlawful or immoral actions, this can render them ineligible for citizenship due to lack of GMC.

The USCIS policy manual has been updated with more examples of unlawful acts for adjudicators to use as guidelines. A permanent bar to GMC means that an applicant will never be able to demonstrate GMC. Serious criminal offenses - termed "aggravated felonies" - such as murder, rape, sexual abuse of minor, money laundering, illicit trafficking in firearms or controlled substance, fraud (loss exceeding $10,000), bribery, obstruction of justice, explosives or firearms offense, gathering or transmitting classified information, demanding/receiving ransom, child pornography offenses, alien smuggling, and conspiracy to attempt aggravated felonies are permanent bars. 

Some acts have a threshold to count as a permanent bar, such as requiring an imprisonment term of at least 1 year. These include racketeering, gambling, crimes of violence, theft offenses, and passport or document fraud. 

Aggravated felony convictions from before November 29, 1990, are exempt from the bar. However, the applicant is still subject to case-by-case discretion by the adjudicating officer.

Less serious offenses can also be "conditional bars" to demonstrating good moral character for naturalization. The applicant's conduct during the past 5 years (3 years if based on marriage to a U.S. citizen) is examined as well as the period leading up to the oath ceremony. The following are some of the actions that will result in a conditional bar: conviction or admission of crime of moral turpitude, an aggregate sentence of 5 years of more, 180 days of actual imprisonment, polygamy, smuggling, controlled substance violation, false testimony under oath, gambling, prostitution offenses, habitual drunkard, two or more DUI convictions, failing to support dependents, adultery, and other unlawful acts.

Further, subsequent changes in one's criminal sentence after conviction may not help reduce the impact of the original sentence.  The Attorney General in Matter of Thomas and Thompson held that the original sentencing is to be counted when evaluating convictions for GMC. Any change to the sentence afterwards is not to be taken into account, unless it was made for procedural or substantive defects in the underlying criminal matter. This has huge implications for GMC bars, some of which have thresholds of imprisonment and sentencing terms.

The written law on GMC has not changed. What is changing is USCIS policy on what GMC is and its guidelines for adjudication, especially for naturalization. Officials still have a lot of discretion to judge GMC and will evaluate on a case-by-case basis. Applicants who plan on applying for naturalization should first carefully examine their background.  If there is any doubt about their qualifications, they should first consult with a qualified immigration attorney.  

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. 

USCIS May Cancel Certificate of Citizenship Without Federal Court Order

                   

If you acquired citizenship indirectly through your parent's naturalization, the Department of Homeland Security has authority to cancel your Certificate of Citizenship, according to a recent Board of Immigration Appeals (BIA) decision. 

A lawful resident of the United States may apply for citizenship through the legal process of naturalization, if she is over the age of 18 and meets several legal requirements such as good moral character and knowledge of American civics and history.  Citizenship through naturalization confers the person with certain rights such as the ability to vote and to apply for a U.S. passport.  A naturalized person's citizenship status can normally be taken away only through a formal legal process called "denaturalization" in the Federal court, where she has the right to defend herself by presenting evidence and also conducting cross-examination.

The Immigration and Nationality Act (the INA) also provides that minor children under 18 may acquire citizenship derivatively when their parents become naturalized citizens.  While naturalized persons will be issued a Certificate of Naturalization, a child who acquired citizenship derivatively may only apply for a document called Certificate of Citizenship.  The Certificate of Citizenship generally can be used as proof of a person's U.S. citizenship. For example, it can be used to apply for a U.S. passport or to apply for a Federal job.

In Matter of Bright Idada Falodun, a BIA decision decided on June 2, 2017 (Interim Decision #3895), the respondent in removal proceedings was issued a Certificate of Citizenship through the naturalization of his adoptive father.  However, USCIS subsequently obtained evidence to show that he obtained his citizenship through fraud. For example, there is evidence that his "adoptive father" is actually his brother.  The former Immigration and Naturalization Services (INS) cancelled his Certificate of Citizenship.   He was subsequently placed in removal proceedings and an Immigration Judge found him deportable from the United States.

Mr. Falodun appealed the Immigration Judge's decision and argued that he was entitled to more legal protection by virtue of his possession of a Certificate of Citizenship.  He argued that by issuing him the certificate, the U.S. government conferred him certain rights and privileges.  Specifically, he argued that his citizenship can only be  stripped away in Federal court proceedings rather than through administrative proceedings conducted by the INS or USCIS.

The BIA disagreed and noted that Mr. Falodun's birth certificate shows that he was born outside of the United States. As such, he has the burden of proof that he is not entitled to deportation in removal proceedings.  Although he has a Certificate of Citizenship, Mr. Falodun did not obtain United States citizenship through naturalization. Instead, he was issued his Certificate of Citizenship under section 341 of the INA, based on his claim of derivative citizenship through the naturalization of his "adoptive father", who in fact was found to be his brother. The BIA noted that a Certificate of Citizenship only serves as evidence that a person obtained his citizenship derivatively through his parents; it does not confer the same rights and privileges that a Citizenship of Naturalization confer.  Consequently, Mr. Falodun's appeal was dismissed.

This is a case of first impression, and the BIA decision may  not be the final word on this important issue.  However, holders of Certificate of Citizenship should understand that, under the Falodun decision, their citizenship can be cancelled by the government administratively without a Federal court hearing.

Immigrants Rush to Apply for Naturalization Under the New Immigration Policies

The enforcement-centric approach of the Trump Administration towards immigration has shaken the immigrant communities in recent months.

Many immigrant advocates and community-based organizations recommend that green card holders should apply for U.S. citizenship as soon as they become eligible.  Obtaining the U.S. citizenship is the best protection against any changes in immigration policy.  In fact, about one million applications for naturalization were filed during FY 2016, and the number of applications has continued to increase after the election.

To apply for U.S. citizenship through naturalization, one must submit the Form N-400 with the U.S. Citizenship and Immigration Services.  To be eligible for naturalization, an applicant must:

• have been a lawful permanent resident for at least five years (three years for spouses of U.S. citizens, and other exceptions for U.S. military personnel);
• have lived in the U.S. continuously for at least five years (and have not been absent for more than one year);
• have been physically present in the U.S. for at least half of the five years at the time of filing; 
• be at least 18 years old;
• have "good moral character" for at least five years (sometimes longer);
• be able to speak, read, and write in simple English (exceptions for some long-term residents over a certain age, and persons with qualified medical disabilities);
• be able to demonstrate knowledge of U.S. history and government (exceptions for persons with qualified medical disabilities); and
• adhere to the principles of the U.S. Constitution and be willing to take the Oath of Allegiance to the United States (with some modifications and exceptions).

Further, applicant must have lived in the district for at least three months before the naturalization application can be file within that district.

Because of the surge in the application numbers, the processing time of the N-400 applications is getting longer.  For example, in New Jersey, based on our experience, it took at least 7 to 8 months for the naturalization examination to be scheduled for cases submitted in 2016.   Processing time will likely to be longer in 2017.  Interested applicants should submit their applications as soon as possible.

One final caveat:  There are many benefits of becoming a U.S. citizen.  However, naturalization is also the final step of the immigration process, and everything in the applicant's immigration history is scrutinized carefully during the application process.  In fact, an applicant could be placed in deportation proceedings on account of a prior offense or incident. For individuals with special issues and circumstances, they should consult an experienced immigration attorney for an evaluation before submitting their naturalization applications. 

Who is the President of the United States?

If you are are studying for the naturalization test, there has been some changes about the U.S. government following the recent elections.

The following are the most recent changes put together by the USCIS. For example, Obama is no longer the President of the United States. Make sure you answer the questions correctly.  

Question	Update
20.  Who is one of your state’s U.S. senators now?	The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet.  Give the name of one of your state’s current U.S. senators. For a list of current members of the U.S. Senate, please visit www.senate.gov.
23.   Name your U.S. representative.	The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet.  Give the name of your current U.S. representative. For a list of current members of the U.S. House of Representatives please visit www.house.gov.
28.  What is the name of the President of the United States now?	·  Donald J. Trump ·  Donald Trump ·  Trump
29.  What is the name of the Vice President of the United States now?	·  Michael R. Pence ·  Mike Pence ·  Pence
43.  Who is the governor of your state now?	The answer to this question may have changed depending on inauguration dates. Give the name of your state’s current governor. For a list of current governors, please visit http://www.usa.gov/Agencies/State_and_Territories.shtml.
46.  What is the political party of the President now?	·  Republican (Party)

Credit Cards Accepted for N-400 Naturalization Application

Many people wonder how come they cannot pay for their immigration filing fees by means of credit cards. After all, these plastic cards are accepted by most businesses in the private sector. As of now, at least one may pay for their naturalization application fee with major credit cards - Visa, Master Card, American Express and Discover. 

Applicants for American citizenship through naturalization may now pay for the government filing fees by credit card.  Currently, for most people, the basic filing fee for the N-400, Application for Naturalization, is $680, which includes the $595 naturalization application fee and a biometrics fee of $85.  Applicants  must use the new form G-1450, Authorization for Credit Card Transactions, if they wish to pay by credit cards.

USCIS will reject the whole application if the credit card transaction fails.  It is therefore important to put down correct credit card information to avoid delays.

Enter your email address:

4-Year Residence Required for Canadian Citizenship Under New Rules

New rules affecting the process of applying for Canadian citizenship went into effect on June 11, 2015.  These reform changes, aimed at strengthening citizenship laws, make it much harder and more expensive to become a Citizen of Canada. Below is a brief outline of the changes, as well as important information for current and future citizenship applicants: 

Key Changes (effective June 11, 2015):

• The new rules require the applicants to be: living in Canada for 4 years (1,460 days) out of 6 years for citizenship eligibility; Physically present in Canada for 183 days (minimum) per year in 4 out of 6 years.
• Adult applicants must declare their intent to reside in Canada once they become citizens and meet personal income tax obligations in order to be eligible for citizenship.
• Applicants between the ages of 14 and 64 must meet a knowledge requirement in English or French (cannot use an interpreter) and must pass the citizenship test. 
• Citizenship will be automatically extended to additional “Lost Canadians” who were born before 1947, and did not become citizens on January 1, 1947 when the first Canadian Citizenship Act came into effect. This will also apply to their children born in the first generation outside Canada.
• As of June 11, 2015, the Citizenship and Immigration Canada (CIC) will only accept the new application forms, which will be available on the CIC website (http://www.cic.gc.ca/). Applications that were received on or after June 11, 2015 that do not use the latest version of the application will be considered incomplete and will be returned. Incomplete applications that were returned prior to June 11, 2015 must be resubmitted using the new application forms. 
• To help the program implemented, Immigration Consultants of Canada Regulatory Council (ICCRC) has been newly designated as the regulatory body for citizenship consultants. Only members of the ICCRC, lawyers or notaries (including paralegals and students at law) can be paid to provide citizenship applicants with representation or advice.
• There are now stronger penalties for fraud and misrepresentation (to a maximum fine of $100,000 and/or up to five years in prison). 
• The CIC Minister can decide to grant citizenship on a discretionary basis. 
• Citizenship can be revoked or denied if the applicant is: a dual citizen or a permanent resident in Canada; AND a member of an armed force or an organized armed group engaged in armed conflict with Canada; AND/OR convicted of terrorism, high treason, treason, or spying offences, depending on the sentence received.

Understand and get ready for Comprehensive Immigration Reform (2)

The White House has released a fact sheet for its version of Comprehensive Immigration Reform.  The following is a summary of the plan:

The White House and the President recognize that reforming our broken immigration system requires responsibility from the 11 million people living in the shadows and from the employers who hire illegal workers.  The new plan must also guarantee that everyone is playing by the same rules.  The four key principles the President Obama’s plan include:

Continuing to Strengthen Border Security

Though the number of Border Patrol agents has been doubled since 2004, the President’s new proposal will further strengthen and improve infrastructure at ports of entry, and continues supporting use of technologies to secure land and maritime borders. It will create new criminal penalties to combat transnational criminal organizations in drugs, weapons and money trafficking, and human smuggling across the borders. It also includes tough criminal penalties for trafficking in passports and immigration documents and schemes to defraud. The U.S. Department of Homeland Security (DHS) will establish border community liaisons along the Southern and Northern borders to improve communication and collaboration with border communities.

Cracking Down on Employers Hiring Undocumented Workers

Our businesses should only employ people legally authorized to work in the United States. The President’s proposal is to stop the practice of knowingly employing undocumented workers and hold those companies accountable. The proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify the eligibility of their employees to work in the United States. Penalties for hiring undocumented workers are significantly increased. The proposal also mandates a fraud‐resistant, tamper‐resistant Social Security card to prove authorization to work in the United States. The proposal will also protect workers against retaliation for exercising their labor rights by creating a “labor law enforcement fund” to ensure that industries comply with labor laws.

Earned Citizenship

Since it is not practical to deport 11 million undocumented immigrants living within our borders, the President’s proposal provides undocumented immigrants a legal way to earn citizenship. This proposal requires undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits. As under current law, five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident. An individual whose provisional lawful status has been revoked or denied, or whose application for adjustment has been denied, will have the opportunity to seek administrative and judicial review of those decisions.

Streamlining Legal Immigration

The proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers. It also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system.  The proposal also eliminates the backlog for employment-sponsored immigration by eliminating annual country caps and adding additional visas to the system.  (These changes, if implemented, will significantly speed up the waiting time of immigrant petitions for countries such as China, India, Philippines and Mexico.)  The proposal encourages foreign graduate students educated in the United States to stay here and contribute to our economy by making it easier for advanced degree holders in science, technology, engineering and mathematics (STEM) from qualified U.S. universities to obtain a green card.  Similarly, the proposal will also provide visas to foreign entrepreneurs who plan on starting businesses here and hiring U.S. workers.  

Republican's version of the DREAM Act reported

A copy of GOP’s version of the DREAM Act, called the ACHIEVE Act, was obtained by the Daily Caller:

Essentially, the proposal involves several tiers: W-1 visa status would allow an immigrant to attend college or serve in the military (they have six years to get a degree). After doing so, they would be eligible to apply for a four-year nonimmigrant work visa (also can be used for graduate degrees.)
Next, applicants would be eligible to apply for a permanent visa (no welfare benefits.) Finally, after a set number of years, citizenship “could follow…”
Below are a few of the details being floated to be eligible for the W-1 visa:
- “Applicant must have lived in the U.S. for five year’s prior to the Act’s enactment”;
- Must have entered the country before age 14
- Must have good moral character
- “Applicant must not have committed a felony, must not have committed more than one misdemeanor with a jail term of more than 30 days, must not have committed a crime of moral turpitude, and must not have a final order of removal pending”‘
- Must have knowledge of the English language, U.S. history, “and of principles of U.S. government”
- Applicant must be 28 or younger at time of application (or 32 if they have a bachelor’s degree from a U.S. college);
- Must pay a $525 fee
- Must submit to a medical exam and a background check, submit biometric and biographic data, and register with the Selective Service.

Read more: http://dailycaller.com/2012/11/15/details-about-the-gops-alternate-to-the-dream-act-emerge/#ixzz2CRNE74de

Comprehensive Immigration Reform Bill Introducted in House

A comprehensive immigration reform bill was introduced in Congress on December 15, 2009, by Representative Luis Gutierrez, Democrat of Illinois. Comprehensive Immigration Reform (CIR) has been a hot topic of discussion in Congress since the last presidency. Despite support by President Bush and some Republic members of Congress, no immigration reform bill was enacted. After President Obama took office, he also made CIR a priority on his agenda, although his first year of presidency was preoccupied by an economic crisis, wars in the Middle East, and health care reform.

This bill, like other proposals for CIR, provides an opportunity for the millions of undocumented foreigners in the U.S. to apply for legal status, in addition to strengthening homeland security and beefing up law enforcement. It is a premise of CIR that effective immigration reform must include both law enforcement measures and ways for the undocumented immigrants to be legalized. This bill by Rep. Gutierrez, entitled Comprehensive Immigration Reform for America's Security and
Prosperity Act of 2009 (CIR ASAP), allows qualified undocumented persons and their spouses and children to stay conditionally for six years if they:

(1) Establish they have been in the U.S. illegally before December 15, 2009.
(2) Attest to having made contributions to the U.S. through employment, education, military service, or other volunteer/community service (with exemptions for minors, persons with disabilities, the elderly, or other unusual circumstances).
(3) Pay an application fee and a $500 fine.
(4) Not have any convictions for a felony or for three or more misdemeanors.

This bill allows certain foreign nationals who have been or are in removal proceedings to apply for legalization. Some other immigration bars would also be waived. The applicants will receive a conditional visa and must wait for six years before they would have an opportunity to apply for a green card unless the current visa backlog is eliminated. Their status will not be counted against the current worldwide numerical visa caps.

For those who were brought to the U.S. before the age of 16, they will also be eligible to apply. They will not have to pay fines and would be eligible for accelerated LPR status upon graduation from high school, and completion of two years of college, military service, or employment.

This bill does not require foreigners to return to their home country before they may be allowed to apply for legal status.

As expected, the bill was not welcome by some Republicans in Congress and some conservative Democrats. Their concern is that the new law would generate a large influx of migrants in the already anemic U.S. labor market, which is suffering from a 10 percent unemployment rate. Other critics also express concerns that the bill does not address the future labor demand of the U.S. as it lacks a temporary worker program.

Another major part of the bill aims at the reduction of visa backlog in the current family and employment immigration system. It exempts immediate relatives from the annual cap on the number of immigrant visas, and increases the number of visas which may be issued per country per year.
Qualified workers will be authorized to work after their employment based petition was filed until a visa becomes available. The bill also exempts from skilled worker numerical cap U.S. educated foreign nationals who receive science, technology, engineering and math degrees and other critical workforce graduates. Most importantly, it reclassifies spouses and children of lawful permanent residents as immediate relatives so that they will not have to wait for many years before they can be united.

The other provisions of the bill include more inhumane treatment of refugees and detainees, creation of a Southern Border Security Task Force, modernizing ports of entry, targeting smuggling of illegal immigrants, and enhanced employment verification.

(Warning: A bill introduced in Congress is only a proposed law. It will not take legal effect and become law unless and until it is passed by Congress and signed by the President.)

True Value of American Citizenship

(written in July 2009)

The 4th of July reminded us of the Statute of Liberty, which was presented by the people of France to the U.S.A. in 1886 to commemorate the centennial of the signing of the U.S. Declaration of Independence. The statute has been standing tall on Liberty Island in New York Harbor for more than a century without much change. It has welcomed countless visitors and immigrants traveling to the U.S. by ship or air. It is also the recognized symbol of freedom and democracy displayed in books, posters, stamps, artwork and even business logos. Every year, as newcomers arrive in the U.S. to pursue a new life, many of their predecessors swear to become American citizens.

While the Statute of Liberty has not changed much over the years, the nature of American citizenship has acquired a new significance. American citizenship still confers many benefits to its holders, allowing them to apply for a U.S. passport, to apply for government jobs, to vote in elections, and to travel internationally without limitation. Speaking more pragmatically, American citizenship also opens the door to more business opportunities for entrepreneurs as U.S. citizenship is required for many government contracts. Don’t forget the shorter lines at the airport when travelers are returning from overseas countries.

True, all these are great benefits of holding a U.S. passport. But there are also other meanings to acquiring American citizenship. For one thing, to be American carries a certain sense of pride that Americans are not shy to express. Although it may not be safe to use an American passport in certain parts of the world, very few Americans would hide their identity just to avoid dangers. Youngsters from all over the world idolize our movie stars, crave for McDonald's French fries, and hack into our computer systems just to take a glimpse of our IT systems. My clients always tell me about how they are treated more politely as American citizens when they return to their countries of origin to do business. Their applications are also processed more efficiently.

It has been said that America is a big "melting pot" - signifying the diversity of people from different backgrounds living together. Nobody would doubt the validity of this phrase by just visiting one of the many naturalization oath ceremonies in the U.S. Typically you see applicants of different ages and nationalities seated together for one common goal - to be an American. Never mind they may have come different continents or countries that had fought each other before. Never mind they may have come from different neighborhoods, and worship at different churches and temples. Naturalization binds them together forever (almost) at the moment when they swear to be loyal to the American soil.

Statistics also support what we see. According to the Yearbook of Immigration Statistics published by the Department of Homeland Security, in 2008 there were 1,046,539 persons who become naturalized American citizens. They came from all continents of the world and more than 200 countries, from China to Taiwan, Afghanistan to Zimbabwe, Austrialia to Turkey. The top countries of origin include Mexico (231,815), India (65,971), Philippines (58,792), China (40,017), Cuba (39,871), Vietnam (39,584) and El Salvador (35,796). Only five persons from U.S. Virgin Islands became naturalized in 2008. Such great diversity is not repeated any where in the world. The amazing thing is that people with such different backgrounds can live and work together in peace and harmony for the most part. One of the reasons for our success is the almost certain way for willing legal residents to become U.S. citizens through naturalization after five years of residence, attracting people especially those talented to come here for a better future. Some countries such as Germany also tried to attract high-tech workers to work there by offering them green cards about ten years ago. However, the German plan failed to attract talent to apply because German citizenship was not offered regardless of how long one has been a legal resident. Without citizenship, the sense of belonging is just not there.

Even when the U.S. is struggling with its economy and health care issues, countless immigrants still continue to come here to pursue their American dream. Perhaps being an American is not only about money and success. Perhaps the Statute of Liberty stands for more than freedom and democracy. Perhaps the true value of American citizenship can only be measured by what share together and our pride.

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

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)