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ACQUISITION AND DERIVATION OF U.S. CITIZENSHIP

Catholic Legal Immigration Network, Inc.

Colorado Springs, CO

May 22, 2009

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NATIONALITY LAWS Immigration and Nationality Act (INA) – Title

III INA Sections 301 through 361 8 Code of Federal Regulations – 8 CFR 8 CFR Sections 301 through 349, 392, 499

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OVERVIEW OF CITIZENSHIP Three ways a person automatically becomes a citizen: Birth -- INA §301(a) & (b) & 14th Amend. Acquisition – INA §§301 & 309 Derivation -- INA §320

Two ways a person can apply to become a citizen Naturalization – INA §§101(a)(23) & 316 Naturalization of children - INA § 322

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CITIZENSHIP AT BIRTH

Birth in one of 50 states (not to a diplomat) Birth in one of the territories (Puerto Rico,

Guam, Virgin Islands) For some, birth in Panama, Canal Zone,

Northern Mariana Islands

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NATIONAL

Birth in American Samoa, Swains Island

INA §§101(a)(22), 101(a)(29), 308.

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ACQUISITION VS. DERIVATION Acquisition = at birth Derivation = later event

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FACTORS IN ACQUISITION Where was person born? Was one or both parents a U.S. citizen? Was either parent a U.S. national? Was your client born in wedlock? If not, was your client legitimated? Did the U.S. citizen parent ever reside in the U.S.? If so, for how long and at what ages?

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YEAR OF BIRTH IF BORN IN WEDLOCK Before noon May 24, 1934 Noon May 24, 1934 to January 13, 1941 January 14, 1941 to December 23, 1952 December 24, 1952 to November 13, 1986 On or After November 14, 1986

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ACQUISITION OF CITIZENSHIP (INA §§ 301, 309) (CHILD BORN IN WEDLOCK)

Current Requirements (for children born on/after November 14, 1986)

Child with Two Citizen Parents: One parent must have resided in the U.S. or

possessions at any time before the child’s birth INA §301(c).

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Child with One Citizen Parent and One

National Parent: The citizen parent must have been physically

present in the U.S. for one continuous year before the child was born -- INA §301(d).

Child with One Citizen Parent: The citizen parent must have been physically

present in the U.S. for five years before the child’s birth. At least two of the five years must be after age 14.

INA §301(g).

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EXAMPLE OF ACQUISITION Susana was born in San Diego on May 11,

1966. She lived in the United States until she was 18 and then moved to Mexico with her parents. In 1992 she married Juan, a Mexican citizen and they had a daughter Rosa born on June 1, 1995. Can Rosa claim US citizenship?

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EXAMPLE OF ACQUISITION Rosa has one citizen parent, Susana, who

was physically present in the U.S. for 5 years before Rosa was born, at least 2 of the years after age 14.

Rosa acquired U.S. citizenship at birth.

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EXAMPLE OF ACQUISITION

Vincenzo was born in Italy in 1975. He immigrated to the U.S. with his parents in 1985 and became a naturalized U.S. citizen in 1997. In 1998 he moved back to Italy and married Gemma an Italian citizen. In 2002, Vincenzo and Gemma gave birth to a son Giovanni. Can Giovanni claim U.S. citizenship?

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EXAMPLE OF ACQUISITION

Giovanni has one citizen parent, Vincenzo, who was physically present in the U.S. for 5 years at least 2 after age 14.

Giovanni is a U.S. citizen.

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ACQUISITION OF CITIZENSHIP(CHILD BORN IN WEDLOCK)

Requirements for children born on/after December 24, 1952 and prior to November 14, 1986

Child with Two Citizen Parents: One parent must have resided in the U.S. or

possessions at any time before the child’s birth

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Child with One Citizen Parent and One

National Parent: The citizen parent must have been physically

present in the U.S. for one continuous year before the child was born.

Child with One Citizen Parent: The citizen parent must have been physically

present in the U.S. for ten years before the child’s birth. At least five years must be after age 14.

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EXAMPLE OF ACQUISITION

Shamus was born in Boston on March 17, 1960. In 1966 he moved to Ireland with his parents. Shamus remained in Ireland until he came back to the U.S. in August of 1978 to attend Boston College for two years. He returned to Ireland in August of 1980 to work at his parent’s pub. On January 1, 1986 Shamus married Maggie a native of Ireland and on October 1,1986 their son Connor was born. Can Connor claim U.S. citizenship?

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EXAMPLE OF ACQUISITION

Connor has one citizen parent, Shamus, who was physically present in the U.S. for a total of 8 years ( 6 years plus 2 years). Two of the years were after age 14.

Needs 10 years physical presence in the U.S. and at least 5 years after age 14.

Connor did not acquire U.S. citizenship at birth.

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YEAR OF BIRTH IF BORN OUT OF WEDLOCK For father, before January 13, 1941 January 13, 1941 to December 23, 1952 December 24, 1952 to November 14, 1968 November 15, 1968 to November 14, 1971 On or After November 15, 1971 For mother, before or on/after December 24,

1952

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ACQUISITION FOR OUT-OF-WEDLOCK CHILD OF USC MOTHER Requirements on/after December 24, 1952: Out-of-Wedlock Child of U.S. Citizen

Mother: The citizen mother must have been physically

present in the U.S. or its possessions for one continuous year before the child’s birth.

INA §309(c).

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OUT-OF-WEDLOCK CHILD OF USC FATHER Requirements on/after Nov. 15, 1971: Clear and convincing evidence of blood

relationship w/ father; Father is USC at time of child’s birth; Father agreed in writing to provide financial

support to child up to 18 years of age; AND

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Out-of-Wedlock Child of USC Father: While the child is under age 18 years:

Child is legitimated, Father acknowledges paternity in writing under

oath, OR Competent court determines paternity of child.

INA §309(a)

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Out-of-Wedlock Child of USC Father If the USC father has fulfilled the legitimacy

or acknowledgment requirements for that time period, then look to requirements for appropriate situation of child born in wedlock: two citizen parents, one citizen parent and one national parent, or one citizen parent and one alien parent (Citizen

parent must have been physically present in the U.S. for 5 years before the child’s birth, at least 2 of the 5 must be after age 14.)

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EXAMPLE OF ACQUISITION

Teresa, a native of the Philippines became a naturalized U.S. citizen in 1975 after living in the U.S. for 10 years. In 1978 she returned to the Philippines and gave birth to her son Raul on May 2, 1980. Teresa was not married at the time of Raul’s birth and Raul has not been legitimated by his father, a citizen of the Philippines. Can Raul claim U.S. citizenship?

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EXAMPLE OF ACQUISITION

Raul was born out-of-wedlock to Teresa, a U.S. citizen who was continuously physically present in the U.S. at least one year prior to Raul’s birth.

Raul acquired U.S. citizenship.

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EXAMPLE OF ACQUISITION

Roman was born in Chicago in 1970. In 1998 his company transferred him to work in Poland. In 2000 Roman fathered a child Darius with Beata, a Polish citizen. Roman and Beata are not married. Can Darius claim U.S. citizenship?

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EXAMPLE OF ACQUISITION

Paternity must be established by clear and convincing evidence;

Roman must agree in writing to provide financial support for Darius up to age 18; and

Darius must be legitimated under the laws of Poland; or Roman acknowledges paternity in writing under oath; or paternity established by a competent court.

Roman must also meet physical presence requirements: 5 years in U.S., 2 after age 14.

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PROOF OF ACQUISITION

U.S. Passport

Consular Report of Birth Abroad of U.S. Citizen (FS-240)

For child living outside the U.S. Must be submitted before child’s 18th birthday

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Certificate of Citizenship (N-600)

$460 fee & three photos of applicant Copy of applicant’s birth certificate Copy of parents’ marriage certificate Proof of termination of prior marriages Copy of birth certificate(s), Certificate of

Citizenship, or Certificate of Naturalization for parent(s)

Evidence of parent’s residence/presence in U.S.

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DOCUMENTING ACQUISITION

Proof of parent’s citizenship Birth certificate Naturalization Certificate Certificate of Citizenship Valid passport

Proof of relationship to parents Birth certificate Baptismal records DNA or blood tests

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Proof of age and residency of parents

Birth certificate Old passports School records Bank receipts Employer records CIS/DHS records Census records

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DERIVATION OF CITIZENSHIP (INA §320) Concept: Automatic citizenship conferred on LPR

child by virtue of USC status of parent or parents. Order in which qualifying events take place is

irrelevant, as long as they occur before child turns 18

Laws governing derivation have changed several times – may need to refer to the old law

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DATE OF LAST ACT

Look at law in effect at the time all requirements for derivation met.

Prior to 5/24/34 5/24/34 to 1/12/41 1/13/41 to 12/23/52 12/24/52 to 10/5/78 10/5/78 to 2/26/01 On or after 2/27/01

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Current Requirements: (on/after 2/27/01) Child automatically becomes a citizen when all of the following requirements are met: At least one parent is a citizen either by birth or by

naturalization Child is under age 18 Child is not married Child is a lawful permanent resident Child is residing in the U.S. in the legal and

physical custody of the citizen parent

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EXAMPLE OF DERIVATION Lillian was born in Argentina on June 27,

1995. In 1998 Lillian and her parents entered the US as lawful permanent residents based on a 4th preference petition filed by her father’s brother. On October 1, 2007 Lillian’s mother naturalized. Her father is still a lawful permanent resident. Lillian has always lived with her parents in the US. Can Lillian claim U.S. citizenship?

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EXAMPLE OF DERIVATION

Lillian entered the U.S. as a lawful permanent resident.

Lillian’s mother naturalized on October 1, 2007 so she has at least one parent who is a U.S. citizen.

Lillian was under 18 when her mother naturalized (12 years old) and not married.

Lillian is living in the legal and physical custody of her U.S. citizen mother.

Lillian derived U.S. citizenship.

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EXAMPLE OF DERIVATION

Martin was born in England on April 15, 1988. Martin and his family adjusted status in the U.S. on December 1, 2000 based on a labor certification filed by Martin’s mother’s employer. Martin’s mother naturalized on July 4, 2007. Martin’s father is still a British citizen. Martin has always lived with his parents in the U.S. Can Martin claim U.S. citizenship?

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EXAMPLE OF DERIVATION

Martin adjusted to lawful permanent residence.

Martin’s mother naturalized on July 4, 2007 so he has at least one parent who is a U.S. citizen.

Martin was over 18 (19 years old) when his mother naturalized.

Martin did not derive U.S. citizenship.

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DERIVATION OF CITIZENSHIP before 2/27/01 Under law in effect before 2/27/01, LPR child

derived USC status where both parents became USCs before LPR child turned 18 or one parent with custody, in the case of death or divorce.

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EXAMPLE OF DERIVATION

Sophia was born in Italy on September 21, 1982. She immigrated to the US on June 17,1992 based on a 2nd preference (2A) relative petition filed by her father, a lawful permanent resident. Sophia’s mother also immigrated at this time. On May 1, 1998, Sophia’s father became a US citizen. Sophia’s mother is still a lawful permanent resident. Can Sophia claim US citizenship?

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EXAMPLE OF DERIVATION

Sophia entered the U.S. as a lawful permanent resident.

Sophia’s father naturalized when Sophia was under 18 (15 years old).

Sophia’s mother still a lawful permanent resident. Needed both parents to be U.S. citizens or the one with legal custody.

Sophia did not derive U.S. citizenship.

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EXAMPLE OF DERIVATION

Guillermo was born in Mexico on October 24, 1984. In 1994 Guillermo immigrated to the U.S. based on a 4th preference petition filed by his father’s sister. On December 12, 2000, Guillermo’s father naturalized but his mother remained a Mexican citizen. Guillermo lived with his parents until he got his first job in 2004 and moved to his own apartment. Can Guillermo claim U.S. citizenship?

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EXAMPLE OF DERIVATION

Guillermo entered the U.S. as a lawful permanent resident.

Guillermo’s father naturalized when Guillermo was under 18 (16 years old).

Guillermo’s mother still a permanent resident. New law took effect on 02/27/01 that requires only

one parent to be U.S. citizen. Guillermo still under 18 on 02/27/01 so derived U.S.

citizenship when the new law took effect.

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DERIVATION OF CITIZENSHIP ISSUES

Child defined under INA §101( c) Residence in the US and with USC parent Legal Custody

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Child - § 101 (c)

Unmarried, under 21 includes: Child legitimated under the law of child’s or

father’s residence or domicile before child reaches 16 years old, and child is in the legal custody of the legitimating parent

Child adopted under the age of 16 ( or sibling under 18), and in the legal custody of the adopting parent (s) ( other requirements for adoption must be met)

Does not include step-children

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Legal Custody -8 CFR § 320.1 A biological child living with married parents or

surviving parent if other deceased If parents divorced or legally separated: an award

of primary care, control and maintenance by a court or other appropriate government entity according to laws of the state or country of residence (includes joint custody)

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Legal Custody Issues(continued)

Child born out of wedlock who has been legitimated and currently resides with the natural parent

There may be other factual circumstances under which the Service will find the US citizen parent to have legal custody

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Example of Derivation

Liam was born in Ireland on November 23, 1988. When he was four years old Liam and his mother entered the US as lawful permanent residents based on a 2nd preference (2B) petition filed by his mother’s father. Liam’s mother was never married to Liam’s father. Liam has always lived with his mother in the US. On November 5, 2006, Liam’s mother naturalized. Can Liam claim US citizenship?

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EXAMPLE OF DERIVATION

Liam entered the U.S. as a lawful permanent resident.

Liam’s mother naturalized on November 5, 2006 when Liam was still under 18 (17 years old).

Although born out-of-wedlock, 2003 USCIS memo clarifies that US citizen mother can confer citizenship on out-of-wedlock child.

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PROOF OF DERIVATION

U.S. Passport Certificate of Citizenship

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DOCUMENTATION NEEDED FOR N-600 Child’s birth certificate or record Parents’ marriage certificate Proof of termination of any previous marriage (death

certificate or divorce decree) Evidence of U.S. citizenship of parent If child born out of wedlock, documents verifying

legitimation according to laws of child’s residence or domicile or father’s residence or domicile

In case of divorce, legal separation, or adoption, documentation of legal custody

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Proof child in the physical custody of parent

Copy of green card or other evidence of LPR status

Evidence of all legal name changes, if applicable, for child and U.S. citizen parent

Additional evidence for adopted child: copy of full and final adoption decree

Three photos of applicant Filing fee of $460 ($420 for minor adopted

child)

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N-600 PROCESS

Filed at USCIS Office having jurisdiction over place of residence

All applicants must appear for interview unless waived

All applicants must take oath of renunciation and allegiance unless waived due to mental incapacity or young age

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DENIAL OF N-600 Appeal on Form I-290B, Notice of Appeal to

the Administrative Appeals Unit (AAU) Appeal must be filed within 30 days of

decision