Seguritan US Immigration Articles

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.

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.

Continuous Residence Requirement for U.S. Citizenship

An applicant for U.S. citizenship must meet basic residence and physical presence requirements. A noncitizen must be a lawful permanent resident (LPR) in order to qualify for naturalization. Certain non-residents who served in the U.S. military, however, are an exception and may qualify for U.S. citizenship.

The noncitizen must have continuously resided in the U.S. as an LPR for five years immediately prior to applying for naturalization. Only three years of continuous residence is required for spouses of U.S. citizens. The U.S. citizen spouse through whom the noncitizen obtained his/her LPR status must have been a U.S. citizen during that period. Also, they must have been living in marital union for three years. If the marriage terminates in less than three years, the noncitizen will have to complete the period of five years. Applicants may file their N400 application for naturalization 90 days early or 3 months before the end of the required continuous residence period.

Spouses and children granted LPR status because of battering and extreme cruelty under VAWA are also required only three years of continuous residence. Three years of living in marital union is not required.

The continuous residence requirement does not mean that the noncitizen has to be physically present in the U.S. throughout the whole period. Short visits outside the U.S. for less than six months are acceptable and will not affect continuous residence.

Absence from the U.S. for six months but less than one year raises a rebuttable presumption that U.S. residence has been abandoned. This will be considered as a disruption of continuous residence and may result in a denial unless the applicant demonstrates lack of intent to abandon residence. Evidence which may establish continuity of residence include not terminating employment in the U.S., presence of immediate family in U.S., retention of full access to U.S. home and not obtaining employment abroad.

Absence from the U.S. for one year or more will interrupt the continuity of residence. The five/three year period will have to run anew when the noncitizen returns to the U.S. However, the applicant does not have to wait for the full period to file the N400 application for naturalization. Spouses of U.S. citizens can file after two years and one day while other LPRs can file after four years and one day.

Absence from the U.S. for one year or more may be excused in the case of employees abroad working for certain U.S. government agencies and U.S. companies. The noncitizens must seek permission to preserve their residency for naturalization purposes by filing Form N-470.

Aside from the continuous residence requirement, the noncitizen must also have been physically present in the U.S. for one half of the required residence period. Applicant must be in the U.S. for an aggregate period of not less than 30 months for the five-year period, and 18 months for the three-year period. Employees abroad working for the U.S. government and firms must also satisfy this requirement.

The applicant must reside within the state or within the USCIS district where the application is filed for three months immediately prior to the filing of the application. Continuous residence in the U.S. is required after application is filed.

Number of Naturalized Citizens Keeps Growing

The USCIS has released the latest figures on naturalized citizens. The number of naturalized U.S. citizens grew by approximately 676,000 during fiscal year (FY) 2010. In the past decade, a total of 6.6 million became naturalized citizens.

Each year, there are approximately 680,000 new citizens naturalized in ceremonies in the U.S. and other parts of the world. In FY 2009, the Philippines was the third top country of origin for naturalization, with Mexico, India, China and Vietnam rounding the top five.

Seventy-four (74%) percent of all persons naturalizing in FY 2009 resided in the following ten states: California, New York, Florida, Texas, New Jersey, Illinois, Virginia, Massachusetts, Washington, and Maryland.

Naturalization is the process of becoming a United States citizen. It is often a milestone in an immigrant’s life. A naturalized U.S. citizen may vote in U.S. elections, get a position in federal government, participate in federal programs, obtain a U.S. passport, and bring family members to immigrate into the United States.

To be eligible for naturalization, one must fulfill the eligibility requirements under the Immigration and Nationality Act (INA). Generally, the applicant must be at least 18 years old, be a lawful permanent resident (green card holder), maintain continuous residence in the United States for 5 years, and be physically present in the U.S. for at least 30 months before filing the naturalization application (Form N-400).

Trips of one year or longer break the continuous residence period and the applicant must complete a new period of residence after coming back to the U.S. On the other hand, trips with a duration of more than 6 months to less than one year are presumed to break the continuity of residence, but this presumption can be rebutted with evidence that the applicant did not abandon permanent residence in the U.S. This evidence may include the filing of U.S. tax returns, presence of family ties in the U.S., and maintaining a home in the U.S.

The applicant must also present proof of residence for at least three months in the state where the application for naturalization is filed.

There is also a requirement that the applicant establish good moral character. This is “measured by the standard of the community” and evaluations are made on a case-by-case basis. Certain activities may disqualify a person under this requirement, such as crimes of moral turpitude (i.e., gambling, habitual drunkenness, prostitution), violations of drug laws, willful failure to support dependents, and crimes involving fraud, harm to persons or damage to property. Crimes involving murder or other “aggravated felonies” present a bar to naturalization.

After the application is filed, the applicant will be scheduled for an interview by a USCIS officer and take a citizenship test, which will test his or her knowledge of the English language and U.S. government and history. If the application is approved, the applicant will be asked to attend a ceremony and take the Oath of Allegiance.

The INA has special provisions for spouses of U.S. citizens and members of the military, as well as children under the age of 18.

For instance, qualified spouses of U.S. citizens may apply for citizenship 3 years after becoming lawful permanent residents and need to be physically present in the U.S. for only 18 months prior to filing the application. Spouses of U.S. citizens stationed abroad may not be required to meet any particular residence or physical requirement.

Children residing abroad who are temporarily present in the U.S. after a lawful admission may apply for naturalization while under 18 years of age if they have at least one U.S. citizen parent who meets certain physical presence requirements in the U.S. On the other hand, children below 18 years old who are in lawful permanent resident status, residing in the U.S., and in the custody of a U.S. citizen parent, may automatically acquire U.S. citizenship.

Status of Children of Foreign Diplomats

Birthright citizenship is embodied in the Fourteenth Amendment of the United States Constitution. The amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

The key phrase in the constitutional provision is “subject to the jurisdiction thereof”. The U.S. Supreme Court interpreted this clause more than a century ago in the case of U.S. v. Wong Kim Ark. In that case, the Court held that only two classes of people are excluded from birthright citizenship: the children of ambassadors and other foreign diplomats, and children born to enemy forces engaged in hostile occupation of the county’s territory.

According to the 1995 Foreign Affairs Manual (FAM) of the Department of State, diplomatic agents are immune under international law from the criminal jurisdiction, and with limited exception, also from the civil and administrative jurisdiction, of the receiving state. “For this reason”, the FAM states, “children born in the United States to diplomats to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship.”

The class of foreign diplomats includes foreign sovereigns such as heads of a foreign state on an official visit to the U.S., and accredited diplomatic officials such as ambassadors, ministers, charges d’affaires, counselors, agents, secretaries of embassies and legations, attachés, and other employees attached to the staff of the embassy or legation.

Likewise included are persons with comparable diplomatic status and immunities such as those assigned to the United Nations or the Organization of American States. To determine whether a parent is a diplomatic officer, his or her accredited title must be listed in the so-called “Blue List” of the State Department.

The USCIS also holds the position that birth of the child of a foreign diplomat only creates eligibility for permanent residence later and it provides the procedure for the acquisition of that status. The diplomat’s child must have had residence in the U.S. continuously since birth and have not abandoned residence in the U.S.

The child must file Form I-485 (application for adjustment of status) and attach Form I-508 (Waiver of Rights, Privileges, Exemption and Immunities), Form I-566 (Inter-Agency Record of Rest for A, G, or NATO Dependent), and official confirmation and evidence that the child was born to a foreign diplomatic officer in the Blue List. The parent’s diplomatic classification and occupational title at the time of the child’s birth must be included.

It should be noted that despite the above position of the Department of State and the USCIS, children of foreign diplomats are issued regular birth certificates which make no distinction on whether a parent is a foreign diplomatic representative, and it looks like the people at the local vital records office do not typically ascertain this kind of information. As Mark Krikorian, Executive Director of the Center for Immigration Studies, observed, these children of foreign diplomats could very well use their birth certificates to get Social Security numbers, passports and driver’s licenses, and even register to vote. Without going into the question of who their parents are, these individuals have all the appearance of U.S. citizens.

Certainly, clarification is needed on the issue to avoid any confusion. The current edition of the Foreign Affairs Manual does not provide the needed clarification. It only says: “7 FAM 1100 Appendix J (under development) provides guidance on the issue of children born to foreign diplomats, consuls, or administrative and technical staff accredited to the United States, the United Nations, and specific international organizations, and whether such children are born ‘subject to the jurisdiction of the United States’.”

The number of people who could be tangibly affected by such clarification may be small compared to those who await the resolution of the birthright citizenship issue in relation to illegal immigration. But if this country is really serious about tightening its laws on citizenship, the issue of foreign diplomats’ children ought to demand more attention.

Dangers of Falsely Claiming U.S. Citizenship

In order to get a green card, an alien must establish that he/she is admissible to the United States. An individual may be inadmissible for many different reasons including fraud or willful misrepresentation of a material fact. Perhaps the most serious misrepresentation that can render an alien inadmissible is by falsely claiming that he/she is a U.S. citizen.

When an alien makes a material and willful misrepresentation to obtain a visa or gain entry to the U.S., such alien is inadmissible but he/she may apply for a discretionary waiver under the Immigration and Nationality Act (INA). On the other hand, there is virtually no waiver if an alien falsely claims that he/she is a U.S. citizen and the alien becomes removable and permanently inadmissible for such misrepresentation.

The violation refers to false representations of U.S. citizenship made in order to obtain a purpose or benefit under the INA or any other Federal or State law. Under the INA, it is unlawful to hire an individual whom the employer knows is an unauthorized alien.

Despite the explicit inclusion of employment as a benefit for which an alien is prohibited from making a false claim of U.S. citizenship, many people are not aware of the ease by which such a violation can be committed: a non-citizen applying for employment who willfully or inadvertently checks off the first box in an I-9 (Employment Eligibility Verification) form lays him/herself open to deportation and a lifetime bar from ever returning to the U.S.

In other words, the false representation need not be made to the government or immigration authorities in order to trigger the draconian consequences of a false citizenship claim. As illustrated in the Sixth Circuit case of Ferrans v. Holder, falsely claiming that one is a U.S. citizen to a potential employer could have very serious consequences.

In that case, the alien was an applicant for adjustment of status. In his interview, it was found that he falsely claimed on Form I-9 that he was a U.S. citizen so that he could get a job at Jiffy Lube. The USCIS denied his application and he was later placed in removal proceedings. The immigration judge found him removable. He later appealed to the Board of Immigration Appeals, but the Board dismissed his appeal.

He argued before the Court of Appeals that while he falsely indicated that he was a U.S. citizen on the I-9 for a private employer, he never misrepresented his citizenship to the U.S. government or immigration authorities. In short, he explained, it was not a “false claim for an immigration benefit or purpose”.

The Court rejected his argument. It ruled that given the plain language of the law false representation of U.S. citizenship for the purpose of obtaining employment, whether public or private, is done for a “purpose or benefit” under the INA.

The false claim issue arises most commonly when an alien fills out the I-9 to gain employment by checking Box 1, thereby attesting under penalty of perjury that he/she is a U.S. citizen. In many of the cases that touched on this issue, the common defense centered on the ambiguous nature of the attestation in the old version of the I-9 as to whether the alien represented himself to be a U.S. citizen or national.

To be clear, the INA punishes only false claims to U.S. citizenship and not false claims to U.S. nationality. However, this nationality/citizenship ambiguity has become less relevant under the new version of the I-9 which separates the choices of U.S. citizen and non-citizen U.S. national.

Given the harsh consequences under the law, non-citizens are thus well reminded to be careful not to make any false U.S. citizenship claims for any purpose, whether to obtain a visa, enter the United States, find employment, apply for welfare benefits, or some other purpose.

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