There is no point in filing for Naturalization or other immigration benefits, for yourself, if you are already a U.S. Citizen. I have about 2 or three people come in every year who want immigration benefits, only to find out they are already U.S. citizens.
The Immigration & Nationality Act grants U.S. citizenship at birth based on: (1) Being born in the U.S. or other particular places; (2) The citizenship of one or both parents; and (3) a combination of both the location of birth and parental citizenship. Under certain circumstances, U.S. citizenship is also granted to persons after their birth based on a combination of parental citizenship followed by the residence of family in the U.S. Citizenship will surely be granted after the naturalization process is completed.
Birth in the U.S. or Certain Incorporated Territories
Under the 14th Amendment in the U.S. Constitution, “all persons born or naturalized in the United States…are citizens of the United States.” We abide by the doctrine of citizenship based on ‘Jus sol’ (Latin for “right of the soil”) — which simply means, if you were born on U.S. territory, then you are a U.S. citizen.
Citizenship by birth also includes persons born in certain territories under U.S. control, which also includes persons born in the Panama Canal Zone under certain conditions. Persons born in territories unified with the U.S. are U.S. citizens at birth. Persons born in territories that are not unified with the U.S. are not U.S. citizens at birth.
In the past, Congress naturalized groups of persons who were born in certain unincorporated territories during certain periods of time in Alaska, Puerto Rico, Virgin Islands, Guam, and the trust territories of the Northern Mariana Islands. Persons born in the Commonwealth of the Northern Mariana Islands after Jan. 9, 1978 are U.S. citizens by virtue of a covenant between the U.S. and the CNMI.
Today, the United States consists of, “the several States, the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, Swains Island, the Commonwealth of the Northern Mariana Islands, and all other territories and waters, continental and insular, subject to the jurisdiction of the United States.” Sons and daughters of diplomats do not acquire citizenship if born in the U.S. because they are not “subject to the jurisdiction of the United States” under the Fourteenth Amendment.
Proof of Birth in U.S.
The lack of an official birth certificate does not determine as to whether a person was born in the U.S.
A person of unknown ancestry found in the U.S. while under the age of five is considered a U.S. citizen by birth unless it is proven that the child was not born in the U.S. prior to the age of 21.
By Acquisition at Birth
Generally, a child born outside the U.S. when one or both parents are U.S. citizens, the child may acquire U.S. citizenship at birth.
Acquiring citizenship for a child born out-of-wedlock is also provided for under INA §309, 8 U.S.C. §1409. The latter provision requires the mother to be physically present in the U.S. for only one year to transmit citizenship.
A child who acquires citizenship is a citizen at the moment of birth and does not need a certificate of citizenship.
A child born of a U.S. citizen father in the Canal Zone is a U.S. citizen at birth even if born out-of-wedlock.
Residence or Physical Presence of the U.S. Citizen Parent
The congressional acts providing for acquisition of citizenship require the U.S. citizen parent to reside or be physically present in the U.S. for certain time periods before the birth of the child so that he or she may “transmit” citizenship. The transmission requirements are established by the law in effect at the time of the child’s birth.
Residence has been defined as “the principal dwelling place of a person” without regard to intent. Residence may also continue even if parent was studying abroad temporarily.
For purposes of physical presence, the time period does not need to be counted to the minute, and a parent who was in the U.S. for a sufficient number of years may transmit citizenship even if the “exact months, days, or hours are unknown.” If the parent is a naturalized U.S. citizen, the time both before and after naturalization can be counted in determining transmission by the parent.
A parent cannot argue constructive physical presence for purposes of transmission of citizenship where the parent was prevented from coming to the U.S. due to financial constraints, war, or imprisonment.
On the other hand, constructive physical presence has been applied where U.S. government officials prevented a parent from entering the U.S. because of an invalid interpretation of the law.
Elimination of Retention Requirement
The requirement that the child had to reside in the U.S. for certain time periods to retain citizenship under former statutes was eliminated by §103 of the Immigration and Nationality Technical Corrections Act of 1994. Therefore, a person born after Oct. 10, 1952 is not deprived of citizenship by retention requirements. In addition, a U.S. citizen born before Oct. 10, 1952 who lost citizenship for failure to comply with the retention requirement may now have their citizenship restored.
Children Born Out of Wedlock
The requirements for a child born out of wedlock to acquire citizenship through his father are particularly tedious. However, Congress may constitutionally impose limitations on acquisition of citizenship at birth abroad. Congress adjusted the law to allow mothers to transmit citizenship to children born before noon on May 24, 1934.
In Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) the court determined that an adopted child could not benefit from the provisions of INA §301(g) where she was adopted by a USC, although she may be eligible to benefit under INA §322.
Regarding birth abroad to USC parents applied to adopted children and denied equal protection claim by adopted child for citizenship under former INA §§320 to 322]. The BIA’s decision in Matter of Guzman-Gomez, also precludes a step-child from receiving such benefits under INA §320 because INA §101(c) does not include a step-child in the definition of a child as does INA §101(b), which pertains to visa issuance.
Procedures and Burden of Proof
There is a presumption of alienage for persons born abroad. If the presumption is overcome, the burden of proof may become the government’s responsibility, but the ultimate burden always remains with the petitioner.
There is no such presumption if the accused denies birth abroad. Absent discrepancies in the evidence, where a claim of derivative citizenship has “reasonable support,” will not be rejected. There is also no presumption of citizenship if the person immigrated under the Amerasian Immigration Act, and nothing in that Act prevents INS from contesting a petitioner’s claim that he/she is the child of a USC and parental residency requirements.
By Derivation Through the Naturalization or U.S. Birth of One Parent
A child born outside the U.S. may become a U.S. citizen as a matter of law by virtue because of his or her parent or parents’ birth or naturalization.
Prior to the Child Citizenship Act, a child could be a derivative USC when one parent became naturalized while the child was under 18 and the child was residing in the U.S. after lawful admission for permanent residence at the time of the parent’s naturalization or began to reside permanently in the U.S. under the age of 18 and was in the legal custody of that parent. The BIA has decided that either section required the child to be a lawful permanent resident of the United States before the age of 18.
The law also required: (1) the naturalization of both parents; (2) the naturalization of the surviving parent if one of the parents was deceased; or (3) the naturalization of the parent having legal custody of the child when there was 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 had not been established by legitimation.
Under this law, if the petitioning child was a “child” as defined under the INA, and the parents were separated, the petitioner would need to show that the parents were previously married and that they were now legally separated or divorced, that the child was in the USC parent’s sole lawful custody and that all events occurred before the child was 18.
The Board has held that the provision raising the age limits for derivation under INA §321(a) from 16 to 18 applies retroactively such that a child who was under 18 at the time the parent(s) naturalized would obtain naturalization even if he/she was over 18 at any time since enactment of the INA.
Also, the former provision regarding the requirement that adopted children had to reside in the U.S. at the time of the naturalization of his or her adoptive parent(s) was upheld in the face of an equal protection challenge.
For the child to be eligible based on residency, the Board’s decision requires that the child under either prong of former INA §321(a)(5) have lawful permanent resident status and not simply reside in the U.S. lawfully.
Child Citizenship Act
As a result of the Child Citizen Act, a child no longer needs to prove that his or her parents were legally separated or divorced if he/she is in the custody of one parent as he/she did under prior law. Under the present version of INA §320(a) a child derives citizenship as long as: (1) one parent is a citizen by birth or naturalization; (2) the child is under 18; (3) the child is residing in U.S. pursuant to a lawful admission for permanent residence (an LPR); and (4) the child is residing in the U.S. in the legal and physical custody of the citizen parent. INA §320(b) explicitly extends the provisions to adopted children. This law means that children who were adopted abroad prior to issuance of the IV (IR-3 classification) become USCs upon their admittance to the U.S.
Definition of Lawful Admission for Permanent Residence
At least one circuit has followed and expanded Matter of Koloamatangi to require that the lawful permanent residency of the child be lawfully obtained.
Definition of Residing in the U.S
If the child, on or after Feb. 27, 2001, was admitted as an LPR and is living in the U.S., or the child was admitted previously as an LPR, was absent from the U.S. on Feb. 27, 2001, but returned and was readmitted as an LPR after that date. Because the statute requires residence in the U.S., it does not apply to children who go to the U.S. solely to naturalize and then reside outside the U.S. Residence for this purpose relies on the statutory definition under INA §101(a)(33), 8 U.S.C. §1101(a)(33) and mere statements of intent to establish residence in the United States will not be sufficient to meet this burden.
However children of U.S. military or U.S. government employees, even if living abroad will be considered to be residing in the U.S. for purposes of INA §320 under 9 FAM 42.22 N.9.
Definition of Legal Custody
There is a presumption of custody by the USC parent, absent contrary evidence where: (a) the biological child currently resides with both natural parents who are living in marital union and not separated; (b) the biological child currently resides with a surviving natural parent where the other is deceased; or (c) the biological child born out-of-wedlock has been legitimated and currently resides with the natural parent.
In the case of an adopted child, legal custody will be based on the existence of a final adoption decree. In the case of divorced or legally separated parents, the INS looks to the award of a court of law of the primary care, control, and maintenance of the child. The INS will consider a USC parent who has been awarded “joint custody” to have legal custody.
Where the state’s law recognizes joint custody absent an agreement or court decree, an informal agreement between the parents to share legal custody is entitled to effect.
Children Born Out of Wedlock
Children born out-of-wedlock who have not been legitimated are eligible for derivative citizenship when the mother becomes a naturalized citizen.
In order to determine eligibility for derivative status, like citizenship by acquisition, it is necessary to review which act of Congress is applicable. For out-of-wedlock children claiming through a father, the claim may be based on the legitimation laws of any jurisdiction where the father or the child resided or was domiciled between the date of the child’s birth to his or her 18th birthday.
Are not covered because they are not deemed to be children for purposes of Title III of the INA by virtue of INA §101(c).