Seguritan US Immigration Articles

Resurrecting A Revoked Family Petition

US citizens and lawful permanent residents may petition their relatives for a green card. Visa numbers are immediately available to immediate relatives namely spouses, parents and unmarried children of US citizens so that the process will be relatively quick.

However, beneficiaries who are not immediate relatives could face lengthy backlogs. Because of the lengthy wait times, it is possible for the petitioner to pass away between the time of the I-130 Petition for an Alien Relative and the availability of a visa number. Since as a rule, the death of the petitioner results in the death of the petition all together, this situation results in the revocation of the approved I-130 petition. For many foreign nationals, this could mean the end of their dream to live in the United States.

The good news is that the United States Citizenship and Immigration Services (USCIS) grants the USCIS director the discretion to reinstate the I-130 petition through humanitarian reinstatement. It is worth noting though that this form of relief is only available and may only be requested by the principal beneficiary of an approved I-130 petition. If the petitioner died before or pending the approval of his petition, this form of relief will not be granted.

There is no form or fee required to ask for this relief. You need to make a written request addressed to the USCIS office that originally approved the I-130 petition.

In your request, you need to state your name as well as the deceased petitioner’s name. Make sure to include the receipt number of the approved petition, your’s and your deceased relative’s alien registration number, if you have one, death certificate of the deceased relative, and you need to have a substitute sponsor. Your substitute sponsor has to be a US citizen or a lawful permanent resident, at least 18 years of age and must be any one of the following: your spouse, parent, mother-in-law, father-in-law, sibling, child, son-in-law, daughter-in-law, sister-in-law, brother-in law, grandparent, grandchild, or legal guardian. You need to submit an I-864 (Affidavit of Support) from the substitute sponsor.

Given that this is also a discretionary relief on the part of the director, you need to show in your request that a favorable exercise of said discretion is warranted due to any one of the following factors: disruption of the family unit, advanced age or health concerns, lawful residence in the US for a lengthy period of time, ties or lack thereof to the home country, other situations like long government processing timelines and procedural delays, among others. You need to make sure that these factors will be backed up by evidence to lead the director to decide in your favor.

In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.

The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.

Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful US residence.

Consequences of Failing to Maintain Non-immigrant Status

For aliens who entered the U.S. on a non-immigrant visa, it is important for them to maintain their status and to engage only in activities consistent with the status. Aliens who fail to maintain status become deportable. They can neither change to said non-immigrant status nor apply for adjustment of status to permanent residence.

A foreign national who wishes to apply for admission into the U.S. generally applies for a visa at a U.S. consulate overseas. There are several types of visa classifications depending upon their specific purpose. Aliens who wish to come to the U.S. for pleasure are issued a B-2 visa. They are generally allowed three (3) to six (6) months to stay with a possibility to extend their status for another six (6) months.

Once a foreign national is legally admitted into the U.S., it is the date on the I-94 that governs his legal immigration status and the duration of his authorized stay in the U.S. The I-94 card is no longer issued. The foreign national can access the most recent I-94 admission record through the I-94 website. If the alien overstays or remains in the U.S. beyond the date on the I-94, the person becomes out of status.

If they overstay for six (6) months or more, they are subject to the three-year bar. If they overstay one year or more, the bar extends to ten years. The three or ten year bar means that if they leave they cannot reenter the U.S. until after three or ten years of stay abroad.

If a non-immigrant decides to pursue a different purpose or engage in another activity in the U.S., he has to apply for a change of status. An example is a person who entered as a student with an F-1 visa gets a job offer after finishing his/her studies in the U.S. Given the change of purpose of the stay in the U.S. from studying to working, the prospective employer may petition for a change of status on his behalf from F-1 to H-1B.

Likewise, a person who originally came as a tourist with a B-2 visa to visit family and friends may later on want to pursue studies in the U.S. Instead of going back to his country to apply for a new F-1 visa, the person can opt to apply for a change of status to F-1 with the U.S. Citizenship and Immigration Services (USCIS).

An alien on a B-2 visa who files Form I-539 to change status to student, may not start classes prior to its approval. An F-1 student fails to maintain his status if he fails to maintain a full course of study or if he transfers schools without permission.

An F-1 student who decides to work in the U.S. may not begin working before the Form I-129 petition filed by the employer is approved. Also temporary workers fail to maintain status if they change jobs without authorization. Those who work without authorization also fail to maintain their status.

The alien is authorized to engage in activities consistent with the status he is seeking only through the formal USCIS approval of the application to change status. If the alien took on activities not allowed under his current status, the application will most likely be denied. It is therefore important that the non-immigrant not violate the conditions of his non-immigrant visa/status.

Prepare for H-1B Filing Now

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

Lawful Admission Required for Adjustment of Status

One of the requirements for adjustment of status is the alien’s lawful admission to the United States. This means that the alien must have been inspected, admitted or paroled into the US.The Immigration Nationality Act (INA) defines the terms “admitted” and “admission” as “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

For foreign nationals who enter the US by air or sea and who are processed by the U.S. Customs and Border Protection (CBP), lawful admission is generally easier to demonstrate as they are normally issued an I-94 Form upon entry.

Since April 2013, the CBP no longer issued the paper I-94 and created an electronic I-94 Form based on the foreign national’s travel documents. The electronic Form I-94 may be printed by accessing the CBP’s website. Aside from the I-94, the CBP office also makes an annotated admission stamp on the foreign national’s passport which may also serve as proof of lawful admission.

However, for those travelling by land, there have been instances when border officials simply “wave through” foreign nationals who enter the US by car without asking any questions. Was there lawful admission in this case?

In a 1980 case, the BIA held that an alien who was “waved through” and who did not make a false claim to citizenship was “inspected” and “admitted” to the US for purposes of adjustment of status. In that case, the alien was a passenger in a car entering the US. The border official waved them through after questioning the driver. She was not asked any question nor did she volunteer any information.

The BIA reasoned that the noncitizen was “inspected” when she physically presented herself for questioning and did not make a false claim to citizenship and she was “admitted” when the officer permitted her to enter the United States.

In 1996, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and amended the INA to define the meaning of “admitted” as being “the lawful entry of a noncitizen following inspection and authorization by an immigration officer.”

However, the Board reaffirmed its earlier decision. The Board held that “lawful entry” did not require that the entry be substantially regular; it only had to be procedurally regular. In this case, the noncitizen was also a passenger of a car crossing the US-Mexico border. She was not asked any questions and was waved through by the border official. It held that, just like in an earlier case, the admission was procedurally regular and met the definition of “admission” under the INA.

Thus, if a noncitizen does not make false claim to citizenship, is not asked any questions, does not volunteer any information, and is waved through by a border official, he has been “admitted” even if he did not have valid entry documents.

The noncitizen does not gain lawful status upon entry in the United States and is still removable for being “inadmissible at the time of entry”. However, since the noncitizen was “admitted”, he is eligible for immigration benefits, such as adjustment of status in the US, if the noncitizen later on marries a US citizen, subject to other requirements under the law.

Where primary proof of lawful admission is not available such as in the case of the noncitizen who was waved through, secondary evidence may be submitted. Secondary evidence may include affidavits regarding admission.

A request for evidence (RFE) is expected when secondary evidence of lawful admission is submitted. A timely response to the RFE must be submitted even if the requested documents have already been initially submitted.

Acquiring and Deriving U.S. Citizenship

It is common knowledge that birth in the U.S. gives rise to U.S. citizenship and that foreign-born nationals can become U.S. citizens by naturalization, but most people are not aware of the other ways of acquiring U.S. citizenship. As a result, there are many individuals who were born abroad but have no idea that they may actually be U.S. citizens.

Citizenship is acquired through birth in the U.S. or by being born to U.S. citizen (USC) parents. A foreign-born child may also derive citizenship through the naturalization of a parent.

Generally speaking, a number of factors must be considered to determine if an individual has a claim of acquired citizenship. These include the date of birth of the child; the citizenship of the parents; the parents’ birth dates; whether the child was born in or out of wedlock; whether the parents resided in the U.S. and for how long; and whether the child resided in the U.S. and for how long.

Depending on the law in place at the time of the child’s birth, the USC parent of the child must have resided or been physically present in the U.S. for the requisite period of time before the parent can “transmit” citizenship to the child.

For example, from December 24, 1952 onwards, if a child is born to two USC parents and at least one of the parents had prior residence in the U.S., the child is a USC at birth.

On the other hand, if only one parent is a USC, getting the answer is a bit complicated. For citizenship to be transmitted to the child, the USC parent must have been physically present in the U.S. for a certain number of years, some of which must have been after the parent was fourteen years old. If the child was born before November 14, 1986, the required physical presence of the parent is 10 years, 2 of which after age 14. If the child was born after that date, only 5 years of physical presence is required, 2 of which should be after age 14.

Residence, for this purpose refers to the principal dwelling place of a person without regard to intent. The parent’s actual residence and place of abode must be in the U.S., although time spent in the U.S. before naturalization, regardless of the parent’s legal status, is counted towards the physical presence requirement.

If the child was born out of wedlock, the answer will depend on when the child was born, whether it was the mother or the father who was a USC, and if the father was the USC whether the child was legitimated.

For instance, after December 24, 1952 a child born to a USC mother is a USC at birth if the mother had one year of continuous presence in the U.S. If it was the father who was the USC, paternity must be established before the child reaches a certain age and the legitimation must be valid according to the law of the domicile of the child or the father, whether that is inside or outside the U.S.

Derivation of citizenship is possible if one or both of the parents became naturalized citizens before the child’s 18th birthday.

If only one parent naturalized, one needs to look at the law in effect at the time of the last applicable event. If child turned 18 before February 27, 2001, he may only derive citizenship if the parents divorced or legally separated and he was in the legal custody of the naturalized parent, or if the other parent was deceased.

If the child turned 18 on or after February 27, 2001 when the Child Citizenship Act of 2000 took effect, the child derives U.S. citizenship if he is under 18 years of age, is residing in the U.S. pursuant to a lawful admission for permanent residency; and the child is in the legal and physical custody of the USC parent.

On the other hand, the child can easily establish derived citizenship if both parents were naturalized before the he turned 18 years old and the he himself became a lawful permanent resident (LPR) by that age.

Nearly Half a Million Immigrants Overstayed Their Visa

Nearly half a million immigrants from all parts of the world have overstayed their visas, according to the recent Department of Homeland Security (DHS) Report released on January 19, 2015.

According to the report, of the nearly 45 million non-immigrant visitors who were in the United States either for business or vacation (holders of B1, WB, B2 and WT visas) and who were expected to depart the country between October 2014 and September 2015, 527,127 individuals overstayed their admissions. This placed total overstay rate at 1.17 percent which means that almost 98.83% of the non-immigrants followed their allotted visa stay and left the US on time.

Due to continuing departures, as of January 4, 2016, the number of Suspected In-Country overstays or those for whom no departures have been recorded had dropped to 416,500. It is also expected to drop even more as the number of individuals who have departed or adjusted status continues to increase.

An overstay is a nonimmigrant who lawfully came to the United States for an authorized period of time but failed to depart after the lapse of such period. The DHS identifies two types of overstays—Suspected In-Country Overstay or those for whom no departure has been recorded and Out-of-Country Overstay or those individuals whose departure was recorded after their lawful admission period expired.

The report shows that for fiscal year 2015, 226,777 Filipinos were expected to depart but 3,701 overstayed their visas. Out of this figure, there were 436 Out-of Country Overstay and 3,265 Suspected In-Country Overstay placing out total overstay rate at 1.63%.

Countries with a high total overstay rate include Afghanistan (10.86%), Burkina Faso (18.01%), Chad (17.43%), Djibouti (27.67%), Eritrea (19.28%), The Gambia (11.20%), Georgia (12.44%), Laos (18.44%), Liberia (11.93%), Mauritania (13.49%) and Federated States of Micronesia (16.00%). US neighbors Canada and Mexico have a 1.27% and 1.56% overstay rate respectively. However, some of the largest numbers were from countries like Germany with 21,394, Italy with 17,661, United Kingdom with 16,446 and France with 11,973. All of these countries are under the Visa Waiver Program (VWP).

According to the report, the DHS conducts overstay identification by examining arrival, departure and immigration status information. The Customs and Border Protection (CBP) obtains passenger manifest data from commercial air and sea departures from the US and passenger data on land departures into Canada. The report, however, admits that “determining lawful status is more complicated than simply matching entry and exit data”.

Immigration Raids Cause Fear Among Immigrant Communities

The recent deportation raids targeting immigrants and refugees from Central America have caused hysteria and panic among immigrant communities.

Rumors have been circulating of immigrant officials taking families from churches and schools thus prompting people not to leave their houses.

While these rumors may not at all be true, they came about after President Barack Obama ordered the deportation of asylum seekers from Central America especially those who have been issued final removal orders by the immigration courts either because their asylum petition was denied or they did not file any at all. However, even as immigration officials say that they mainly target the undocumented, these rounds of deportation clearly has caused fear and panic even to those who have papers and have the right to stay in the United States.

At the start of the year, the first large-scale effort by the Immigration and Customs Enforcement (ICE) agents to deport families who fled the violence caused by gangs and drug syndicates in Central America rounded up 121 individuals. They now fear that they will be separated from their loved ones and taken from places that they now consider as homes as deportations continue.

ICE agents have reportedly rounded up houses at wee hours in the morning, only giving about five minutes for fathers, mothers and children to gather their belongings before they were made to board ICE vehicles.

Over 150 members of Congress, and many human rights advocates and immigration lawyers have expressed their concern over what has happened.

Immigrant advocates argue that those migrants should be treated as refugees with Temporary Protected Status (TPS), not illegal immigrants. The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely like in cases of ongoing armed conflict (such as civil war), an environmental disaster (such as earthquake or hurricane), or an epidemic and other extraordinary and temporary conditions.

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases are not removable from the United States, many obtain an employment authorization document (EAD) and may be granted travel authorization.

The American Immigration Lawyers Association (AILA) condemned the raids and called it an unconscionable move against the vulnerable populations and something that essentially abrogates our legal obligations to provide protection to refugees.

“Our laws protect asylum seekers crossing the border from being prosecuted for illegal entry, but the government refuses to acknowledge that these mothers and children have fled from uncontrollable violence and need asylum protection,” said AILA President Victor Nieblas Pradis.

The United States is obliged to recognize valid claims for asylum under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. This obligation was codified and expanded with the passing of the Refugee Act by the United States Congress.

The lack of transparency and due process in these recent raids was also underscored by Pradis saying “since these plans came to light, AILA and its partners have been pleading with the administration to be more transparent about how it will conduct the raids and to work with us to ensure that no one is wrongly deported.”

“Traumatized families who may not have access to legal counsel or understand their rights and responsibilities under our nation’s asylum laws could be sent to their deaths.”

Automatic Citizenship After Birth

When may a child born outside of the U.S. of alien parents acquire automatic citizenship? The Child Citizenship Act, embodied in Section 320 of the Immigration and Nationality Act (INA) provides that a child automatically becomes a U.S. citizen if all of the following conditions are met: the child has at least one parent, including an adoptive parent who is a U.S. citizen by birth or naturalization, the child is under 18, is residing in the U.S. pursuant to a lawful admission of permanent residence and is in the legal and physical custody of the U.S. citizen parent.

In order to acquire automatic citizenship under Section 320, the child must have been born on or after February 27, 2001, or was under 18 as of that date. For children who were already 18 years old on February 27, 2001, but who were under 18 in 1952, former INA 321(a) applies.

The Board of Immigration Appeals (BIA) recently decided a case involving Konan Waldo Douglas who was placed in removal proceedings and was found removable by an immigration judge. He was denied his claim to derivative citizenship because his mother’s naturalization took place before the legal separation of his parents.

Douglas was born in Jamaica on January 29, 1976 to his married parents, both citizens of Jamaica. He entered the United States as a lawful permanent resident on December 14, 1981. His mother’s naturalization was on April 13, 1988 and his parent’s divorce on July 25, 1990 took place while he was a lawful permanent resident and before he reached 18.

Former section 321(a) of the Act, the governing law in this case, provided that citizenship is automatically acquired by a child born outside the United States of alien parents in the following instances: (1) the naturalization of both parents; or (2) the naturalization of the surviving parent if one of the parents is deceased; or (3) the naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation.

The following conditions, however, must be met in all these three instances, one, such naturalization takes place while such child is under the age of eighteen years; and, two, such child is residing in the United States pursuant to a lawful admission for permanent residence at the time the parent(s) naturalized or thereafter begins to reside permanently in the United States.

The BIA disagreed with the immigration judge and held that Douglas acquired citizenship because he satisfied all the conditions under former section 321(a) before he reached 18.

The BIA in deciding the case went against precedent decisions by the Court of Appeals. Instead it relied on its earlier decision in a previous case that a child who has satisfied the statutory conditions of former section 321(a) of the Act before the age of 18 years has acquired U.S. citizenship, regardless of whether the naturalized parent acquired legal custody of the child before or after naturalization.

Prior Mother’s Sham Marriage Does Not Bar Stepchild Petition

When a US citizen petitions his spouse for a green card, he may also file a petition for his spouse’s child if the marriage creating the stepchild-parent relationship took place before the child’s 18th birthday. As immediate relatives of the US citizen, separate petitions must be filed for the spouse and stepchild.

Under immigration laws, a “child” is defined as an unmarried person under twenty-one years of age and includes a stepchild who was under 18 years at the time of the marriage creating the stepchild relationship.

To benefit from the status as stepchild, it has been held that “no qualification beyond a valid marriage creating the step-relationship should be imposed.” A previous ruling that the step-parent should have an “active parental interest” in the child was abandoned. The only requirement therefore is that the marriage between the child’s natural parent and step-parent is valid.

What if the I-130 petition for the spouse is denied, will this mean that the petition for the stepchild will also be denied?

In a recent case decided by the Board of Immigration Appeals (BIA), it was ruled that although the petition for a spouse is denied under Section 204(c), this does not prevent the approval of the petition filed on behalf of the spouse’s child as a stepchild. Section 204(c) bars the approval of a subsequent petition filed on behalf of a beneficiary who was previously petitioned as a spouse of a U.S. citizen or lawful permanent resident and the marriage was found to have been entered for the purpose of evading immigration laws.

In that case, the U.S. citizen married the beneficiary before her child’s 18th birthday. The U.S. citizen filed an I-130 petition for his spouse and her child as his stepchild. The petition for the spouse was denied by the Citizenship and Immigration Services because it found that the beneficiary had a prior marriage with another U.S. citizen and the marriage was a sham marriage. Thus, the petition of her current spouse was denied under Section 204(c).

The petition for the stepchild was also denied. According to the USCIS, since the petition for the spouse was denied, the petition for the stepchild was no longer valid.

The BIA disagreed, saying that Section 204(c) does not apply to the stepchild. It only applies to the beneficiary who was previously accorded the status of spouse based on marriage found to have been entered into for purposes of evading immigration law. It said that the stepchild was not a party to the previous marriage of the mother and his relationship to the petitioning stepfather was not related to the prior fraudulent marriage.

The denial of the petition for the spouse does not invalidate the step-child parent relationship and does not bar the petition filed on behalf of the stepchild. However, the BIA stressed that the marriage between the child’s natural parent and step-parent has to be valid. A sham marriage cannot create a valid step-child relationship. The BIA therefore granted the appeal and remanded the case to the USCIS to further consider the merits of the visa petition.

You May Be A U.S. Citizen Without Knowing It

Most people think that a person who is born outside of the United States can only become a U.S. citizen through naturalization or by deriving citizenship through a parent’s naturalization. For many people, naturalization is a process fraught with years of waiting and much expense.

However, a person born outside the U.S. can become a citizen through the acquisition of citizenship from one or both parents who are citizens. Sometimes, the parents themselves do not even know that they were U.S. citizens.

In order to transmit citizenship to a child, the citizen parent generally must have resided in the United States for a certain period before the child’s birth. The law in effect on the date of the child’s birth will apply and dictate what requirements must be met.

In a recent case, the court held that an American father could not transmit his citizenship to his son because the law in effect at the time of his son’s birth in 1931 required his father to have resided in the U.S. The Nationality Act of 1940 liberalized the residency requirement by allowing a citizen parent to have resided in the U.S. or one of its outlying possessions such as the Philippines, but the law could be not be applied retroactively.

Depending on the applicable statute, residence in a possession of the U.S. could be considered residence in the United States. Because of this, knowing the ways by which citizenship could be acquired is especially useful for Filipinos because the Philippines was an “outlying possession” of the United States from 1898 to 1946.

If a person is born to parents who are both U.S. citizens, the child’s acquisition of citizenship depends on whether at least one parent resided in the United States prior to the child’s birth. If the child was born on or after January 13, 1941, residence in a U.S. possession is counted as U.S. residence. The child is not subject to the citizenship retention requirement, meaning that he/she need not reside in the U.S. for certain time periods in order to become a U.S. citizen.

If only one parent is a U.S. citizen, the child could be a citizen depending on the date of birth, whether the parent has prior U.S. residence, and whether the child meets the retention requirements.

A child may be a citizen if born abroad before May 24, 1934 to a U.S. citizen father or mother with prior U.S. residence. The child has no citizenship retention requirement.

If the child was born on or after May 24, 1934 but before January 13, 1941, the child’s parent must have resided in the U.S. and the child must generally have 2 years of continuous physical presence in the U.S. between the ages of 14 and 28.

If born on or after January 13, 1941 but before December 24, 1952, the citizen parent must have at least 10 years of prior U.S. residence, 5 years of which were after age 16. The child must also have two years of continuous physical presence in the U.S. between the ages of 14 and 28.

If the child was born on or after December 24, 1952 but before November 14, 1986, the citizen parent must have been physically present in the U.S. for at least 10 years before the child was born, 5 years of which were after age 14.

The prior residence requirement for the citizen parent is only 5 years, 2 of which after age 14, if the child was born on or after November 14, 1986.

In some cases, people did not realize that they are U.S. citizens until they were placed in removal proceedings and they had the good sense of not conceding alienage. If you believe that there is U.S. citizen among your direct-line ancestors, it pays to carefully examine your background because you may have a claim for U.S. citizenship after all.

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