american immigration lawyers association, new york … · cle: advanced naturalization issues...

American Immigration Lawyers Association, New York Chapter

CLE: Advanced Naturalization Issues

Monday, March 6, 2017

Topic: This presentation provides both new and experienced practitioners with an overview of

the special and nuanced issues involved in Naturalization applications, particularly in light of the

Trump administration.

7:00 – 7:10 PM Introduction: How can the Executive Orders Impact Naturalization

Applications? Sophia Goring-Piard

7:10 – 7:35 PM Criminal Issues in Naturalization Applications

Lindsey Gauzza

Statutes, Regulations, and Manuals

Gathering Criminal Documents

Statutory Requirements: Good Moral Character INA § 101(f); 8 C.F.R.

§ 316.10

Evaluating Strategies

o Removability and Potential Relief

o Detention

o Post-Conviction Relief Options

7:35 to 8:00 PM Issues of Physical Presence and Continuous Residence

Karin Wolman

Physical Presence

o Statutory Eligibility Periods

o Keeping Track of Travel

Continuous Residence: Breaks, Establishment, and Abandonment

o N-470 Application to Preserve Continuous Residence

o Re-Entry Permit Issues

8:00 – 8:25 PM Acquiring and Deriving Citizenship Sam Palmer-Simon

Clarifications

Acquisition vs. Derivation

Real Life Scenarios

Passport vs. N-600

Acquisition of Citizenship

o Recurring Themes

o The Law

o Screening

o Options for those who have Acquired Citizenship

o Hypotheticals

Derivation of Citizenship

o Background

o Core Requirements

o Hypotheticals

o Children Issues

o N-600

o Evidentiary Issues

8:25 – 8:50 PM Naturalization Waivers and Exceptions

Midori Hills

Fee Waivers and Reduced Fee Options

o Forms I-912 and I-942

o Household Income

Means-Tested Benefits

o Supporting Evidence

Knowledge of U.S. History and Civics

o English Language Ability

o N-648 Disability Waivers

Working with the Doctor

8:50 – 9:00 PM Q & A

1


Monthly Meeting Advanced Naturalization Issues

March 6, 2017 New York Law School 185 West Broadway New York, New York

Moderator: Sophia Goring-Piard Speakers: Midori Hills, Lindsey Gauzza, Sam Palmer-Simon, & Karin Wolman

Index of Handouts Criminal Issues in Naturalization Applications

1. Outline: Criminal Issues in Naturalization, by Lindsey Gauza Issues of Physical Presence and Continuous Residence

1. “Issues of Physical Presence and Continuous Residence for Naturalization,” Karin Wolman, excerpted and updated from “The Long Road to Naturalization.” ©PLI 2016

Acquiring and Deriving Citizenship

1. Unpublished Decision finding that preponderance of evidence established that applicant was residing in his mother’s legal and physical custody prior to eighteenth birthday (AAO February 09, 2015)

2. “Chart A: Determining Whether the Children Born Outside the U.S. Acquired Citizenship

at Birth,” ILRC © 2014

3. “Chart B: Acquisition of Citizenship Determining if Children Born Abroad and Out of Wedlock Acquired Citizenship at Birth,” IRLC © 2014

4. “Chart C: Derivative Citizenship – Lawful Permanent Resident Children Gaining Citizenship Through Parents’ Citizenship,” ILRC © 2015

5. Morales-Santana v. Lynch, 804 F.3d 520 (2nd Cir. 2015)

6. Instructions for USCIS Form N-600, Application for Certificate of Citizenship

2

Naturalization Waivers and Exceptions 1. USCIS Form I-912, Request for Fee Waiver

2. USCIS Form I-912P Supplement, 2017 HHS Poverty Guidelines for Fee Waiver Request

3. USCIS Form I-942, Request for Reduced Fee

4. USCIS Form I-942P Supplement, Income Guidelines for Reduced Fees

5. USCIS Form N-648, Medical Certification for Disability Exceptions

6. “N-648 Medical Certification: Helping Doctors Get It Done!,” Northwest Justice Project

© 2009

7. “Alert: New Requirements for Form N-648” provided by HIAS and the CUNY Citizenship and Immigration Project


CLE: Advanced Naturalization Issues

Monday, March 6, 2017

Speaker Biographies

Lindsey Gauzza is an Associate at the Office of Cheryl David, where she specializes in removal

defense and family-based immigration. Before joining the Law Office of Cheryl David, Ms.

Gauzza clerked for two years at the New York Immigration Court through the Attorney

General’s Honors Program. She graduated from Temple University School of Law in 2009, and

earned her BA in History from Oberlin College in 2004.

Sophia Goring-Piard is Of Counsel in the New York office of Fragomen, Del Rey, Bernsen &

Loewy, LLP, where she assists individual, multinational and corporate clients with various

aspects of corporate U.S. immigration, including nonimmigrant visas, permanent residence,

compliance issues and corporate restructuring. Her experience also includes handling

extraordinary ability cases in the sciences and business, outstanding professor and researcher

matters, naturalization applications and reentry permits.

Throughout her career, Sophia has provided pro bono services to the Harlem, Brooklyn and

Bronx communities and in Westchester County, New York. Her pro bono work has included

assisting clients with asylum and removal proceedings, family-based cases, special immigrant

juvenile petitions, U visas, VAWA self-petitions, Deferred Action for Childhood Arrivals

(DACA) and general immigration consultations. Sophia is a graduate of Fordham University

School of Law and Washington University in St. Louis.

Midori Hills is the Staff Attorney at York College Immigration Center, part of CUNY

Citizenship Now!. She provides assistance to immigrant New Yorkers with citizenship,

naturalization and family-based immigration issues. Prior to CUNY Citizenship Now!, she was

at a legal services office providing assistance to nonprofit organizations and schools with

employment-based immigration issues. She has a J.D. from the CUNY School of Law and a B.A.

from Stony Brook University.

Sam Palmer-Simon is a Supervising Attorney at Immigrant Justice Corps. Mr. Palmer-Simon

was the former Legal Initiatives Coordinator with the New York York Immigration Coalition,

devoting his time towards legal services program development, training, and capacity-building

among Coalition members and partners in Long Island and New York City. Sam also worked as

a staff attorney with the New York Legal Assistance Group’s Immigrant Protection Unit, where

he provided legal representation to his clients on a diverse range of immigration matters,

managed several City and State grants, and spearheaded NYLAG’s involvement in a number of

policy advocacy initiatives.

Sam received his J.D. from Brooklyn Law School and his B.A., cum laude, from the University

of New Mexico.

Karin Wolman is a sole practitioner in New York serving businesses of all sizes, non-profit

organizations and individuals, across industries from healthcare and the sciences, academia,

finance and technology, to the performing arts and entertainment, fine and graphic arts and new

media, culinary arts, fashion and beauty, architecture and design. Ms. Wolman is a frequent

speaker at local and national conferences on topics in immigration law ranging from aliens of

extraordinary ability to naturalization, for organizations including AILA, the Practising Law

Institute, New Jersey Institute of Continuing Legal Education, and New York State Bar

Association. A graduate of Columbia University and UCLA School of Law, she worked at the

Brooklyn Academy of Music when the O & P categories were introduced. She has served since

2002 as moderator of the AILA InfoNet forum on O & P visas, in addition to other employment-

based forums.

1

Criminal Issues in Naturalization Presented by Lindsey Gauzza

I. Statutes, Regulations & Manuals :00-:02

1. INA §316 – Naturalization Statute

2. INA §101(f) – Definition of Good Moral Character 3. 8 CFR §316 – General Requirements for Naturalization 4. USCIS Policy Manual - Article 12

II. Gather Criminal Documents :02-:07

1. Prior to Filing - Gather original dispositions, certified copies of criminal record

complaint/information, plea minutes if necessary)

2. Consider if RAP sheet is necessary

3. Confirm disclosure of all arrests/convictions in adjustment application

4. Are they convictions? INA § 101(a)(48)(A)

5. Expunged convictions will be considered for GMC. U.S. v. Hovsepian, 359 F.3d 1144

(9th Cir. 2004).

6. Foreign Convictions

III. Statutory Requirements: Good Moral Character INA § 101(f); 8 C.F.R. § 316.10 :07-:15

1. Must demonstrate GMC for the statutory period

- Generally five years prior to filing. INA § 316(a)(3)

- Spouses of USC must show three years of GMC. INA § 319(a)

- Members of the military only need one year of GMC. 8 C.F.R. § 329.2(d)

2. Service can consider conduct outside the statutory period “if the conduct of the

applicant during the statutory period does not reflect that there has been reform of

character from an earlier period or if the earlier conduct and acts appear relevant to

a determination of the applicant’s present moral character.” 8 C.F.R. § 316.10(a)(2)

3. Permanent Bars 8 C.F.R. §316.10(b)(1)

- Murder conviction

- Aggravated Felony convictions on or after November 29, 1990 8 CFR

4. Bars during statutory period – No conviction required - INA § 101(f)

- Habitual drunkard

- Prostitution and commercialized vice

- Alien smuggling

- polygamy

- false testimony to obtain benefits

- Imprisonment for an aggregate period of 180 days, regardless of date of

2

conviction

- Nazi, genocide, torture

- Commission of a CIMT (except if petty offense)

- Commission of two or more offenses with aggregate sentence of 5 years or more

- Admitted commission of a controlled substance offense (except single offense of

simple possession of marijuana)

- “Committed unlawful acts that adversely reflect up on the applicant’s moral

character” even if not enumerated. 8 C.F.R. § 316.10(b)(3)(iii)

5. Discretionary Issues – 8 C.F.R § 316.10(c)

- Probation, parole, suspended sentence: does not preclude GMC, may delay

adjudication

- Pardon prior to statutory period – show reformation and rehabilitation of

character

- Pardon during statutory period – one CIMT or two or more crimes with aggregate

sentence of 5 years, show extenuating and extenuating circumstances exist to

establish GMC.

6. GMC bar applies to convictions waived under 212(c) or Cancellation. Ljutica v.

Holder, 588 F.3d 119 (2d Cir. 2009)

IV. Evaluating Strategies :15-:25

1. Is the client removable under INA § 237?

- Client may be able to establish GMC in the statutory period, but still be subject to

removal under 237

2. Are they subject to mandatory detention under INA § 236(c)?

- Consider new enforcement policies, evaluate risk of alerting CIS to removable

offense

3. Post conviction relief options

4. Availability of relief if placed in removal proceedings

- Discuss risk of filing

- Prepare N-400 as though a discretionary waiver application: present all equities

regarding family ties, employment, taxes, rehabilitation, hardship to family

members, property ownership etc.

- Include memorandum explaining eligibility for Naturalization despite the

convictions

- Consider changing CIS enforcement/discretion policies

Issues of Physical Presence and Continuous Residence for Naturalization

by Karin Wolman

For AILA New York Chapter CLE, “Advanced Issues In Naturalization”

March 6, 2017

This article is excerpted & updated from “The Long Road to Naturalization,” ©PLI 2016

Naturalization can be fraught with traps for the unwary, even among perfectly law-abiding

residents who have never had a brush with law enforcement, and who have been forthright and

timely in all their dealings with both the immigration and tax authorities. Many such traps involve

permanent residents who travel outside the United States often or for long periods of time.

1. Physical Presence

Applicants for naturalization must have been physically present in the United States for at least

half of the statutory eligibility period. Those applying under INA §316(a), where the eligibility

period is five years, must have been physically present in the United States for 30 months prior to

applying for naturalization, and these individuals make up roughly 95% of all naturalization

applicants. Those living in marital union with a US citizen spouse to whom they have been

married for three years have a three-year statutory eligibility period under INA §319(a), and must

have been physically present for 18 months prior to applying for naturalization. This cumulative

physical presence requirement for half of the eligibility period seems straightforward enough –

either a person is physically present within the boundaries of the territorial United States on a

given day, or not. However, permanent residents who engage in frequent international travel

need to know how to count all the days they have spent in transit.

A travel day of which the applicant spent any part in the United States, even one minute, counts

as a day present in the United States for purposes of the physical presence requirement.1 For any

trip abroad longer than 24 hours, both the departure date and the arrival date are counted as days

present in the United States. At a naturalization interview, the examining officer will typically

review the applicant’s current passport and all prior passports, both to verify the total number of

days spent in the United States since the grant of permanent residence, and to verify the

applicant’s immigration history prior to becoming a resident. For a frequent traveler who proffers

a lengthy list of trips with the N-400 and an update for most recent trips since the N-400 was

filed, the interviewing officer will typically put off a decision until the applicant’s travel list,

including any update as of interview, can be checked against the CBP database.

Unlike nonimmigrants, lawful permanent residents cannot avail themselves of the US Customs

and Border Protection (“CBP”) online user interface to retrieve the last five years’ worth of their

entry/ departure records, which show all dates of departure and the dates and ports of

readmission. CBP still collects this data, and shares it across all agencies within the Department

of Homeland Security, but permanent residents must file a Freedom of Information Act request

with CBP in order to obtain the electronic record of their travel history. However, LPRs can still

be negatively impacted by errors in the entry/departure database, such as electronically imported

airline flight manifests, which may list flights booked but never actually boarded, and entries or

1 M-476 Guide to Naturalization, p.24.

exits omitted due to variations in name spelling or typographical errors in data entry by the

inspecting officer.

2. Continuous Residence – Breaks, Establishment & Abandonment

While often referred to as if it were a single requirement, “continuous residence” for

naturalization purposes actually has two parts, a country component covering the entire statutory

eligibility period, and a state component covering just the three months prior to filing. The

country part of the continuous residence requirement2 seeks to clarify whether the applicant has

maintained actual residence in the form of a primary place of abode in the United States, without

interruption, throughout the eligibility period. Residence is defined by law as “principal, actual

dwelling place in fact, without regard to intent.”3 The state part of the continuous residence

requirement,4 looks to whether the applicant has maintained an actual primary residence in the

same state as the home address shown on Form N-400, for at least three months preceding the

date of application, and still resides in that state at the time of interview. This impacts how soon

an applicant may file Form N-400 after moving across state lines, and whether they should wait

to file if planning to move shortly, as state residence determines which USCIS field office has

jurisdiction to interview the N-400 applicant. A move across state lines after filing Form N-400

changes which office has jurisdiction, and can cause major delays, as it requires the file to be

transferred.

Any stay abroad of six months but less than one year creates a rebuttable presumption that

continuity of residence was broken.5 Staying abroad past the six-month mark shifts the burden of

proof to the applicant to show continuous residence by a preponderance of the evidence, under a

totality of the circumstances test including, but not limited to, continuing employment in the

United States, maintaining full access to a principal place of abode in the United States,

immediate family members remaining in the United States, and the applicant not obtaining new

employment abroad.6

For an absence from the United States of less than six months, there is no presumption of a break

in continuity, but if an applicant affirmatively proffers facts on the N-400 or at the interview

indicating that he or she moved to a primary place of abode abroad, or taken a job with a foreign

employer, USCIS is not prohibited from further inquiry into whether that applicant has broken

continuity of residence in the United States, or abandoned residence altogether. As long as there

is no finding of abandonment, an applicant who has broken continuity of residence will become

eligible to apply for naturalization four years and a day after moving back to resume a primary

residence in the United States.7

For certain missionaries and other religious workers admitted as permanent residents, who have

spent at least one year of physical presence and continuous residence in the United States,

subsequent periods spent abroad performing ministerial, priestly or missionary functions within

the same religious denomination will not be deemed to break continuous residence.8

2 INA §316(a)(2); INA§319(a); 8 CFR §316.2(a)(3); 8 §CFR 319.1(a)(3) 3 INA §101(a)(33) 4 INA §316(a)(1) 5 INA §316(b), 8 CFR §316.5(c)(1)(i) 6 8 CFR §§316.5(c )(1)(i)(A)-(D) 7 8 CFR §316.5(c)(1)(ii) 8 INA §317

The regulations on continuous residence take into account a broad constellation of factors, and

acknowledge that many people may have more than one residential address at a time that they

may legitimately call home. Students attending school elsewhere than in their home state may

use either their school address or home residence address when applying for naturalization.9

Applicants who have residences in multiple states are deemed to reside principally at the home

address used for federal income tax return filings.10 Multiple-residence situations where the

address used for income tax filings was not used by the applicant as an actual dwelling place

require close examination, both to determine the facts of where the applicant actually resides, and

also to identify whether any material misrepresentations were made in order to obtain

immigration or tax benefits, either of which could be the basis for a bar to naturalization.

Students who attend school abroad may not be deemed to have broken continuity of residence on

that basis alone, since a student is also deemed to have a permanent residence wherever the

parents live, but other regulatory factors will be taken into consideration11.

Commuter aliens who reside abroad in a contiguous territory but who work inside the United

States may not apply for naturalization until they take up an actual principal dwelling place in the

United States, and maintain it for the statutory period.12

Those who were abroad at the moment when permanent residence was granted, came to the

United States only briefly to collect the alien registration card, and went abroad again for multiple

long stays, are in particular danger of being found never to have established residence in the

United States at all. This scenario in combination with a prospective applicant who just barely

meets the physical presence test requires especially close scrutiny.

Any naturalization applicant with a complex travel history should review tax return filings with

immigration counsel. Filing a Form 1040-NR non-resident income tax return at any time while a

Lawful Permanent Resident raises a rebuttable presumption that the individual has abandoned

permanent residence.13 Per the regulations, a non-resident US income tax return may be deemed

prima facie evidence of intent to abandon residence in the United States. Claiming the Foreign

Earned Income Exclusion under the Bona Fide Residence test may also trigger inquiry into

possible abandonment or break in continuity of residence, since it is a claim to be a primary tax

resident of a foreign country rather than the United States. Use of the FEIE under the Physical

Presence test also requires close examination and discussion of where the applicant has spent time

and why, as it means he or she has spent 330 days of that year abroad.

While instructions provided by USCIS prior to the N-400 interview only require the applicant to

bring a US income tax return for the single most recent past year, older past tax returns may be

deemed probative and can be relevant and helpful to establish continuous residence. They may be

requested by the examiner, especially where the applicant has a history of lengthy or frequent

international travel, and just as in the Adjustment of Status context, IRS tax return transcripts are

preferable to the applicant’s own or accountant’s copies.

Most physical absences of one year or more terminate permanent residence automatically, by

9 8 CFR §316.6(b)(2) 10 8 CFR §316.5(b)(4) 11 Li v. Chertoff, 490 F. Supp.2d 130 (D. Massachusetts 2007) 12 8 CFR §316.5(b)(3) 13 8 CFR §316.5(c )(2)

operation of law.14 However, an absence of over one year will not automatically terminate lawful

permanent residence if, prior to departing the United States, the resident filed an I-131

Application for Travel Document and obtained a Re-Entry Permit, demonstrating an intent to

return.15 Possession of a Re-Entry Permit by itself only prevents the Service from making a one-

factor determination that the permit holder has abandoned residence, based solely on length of

absence from the United States; it does not prohibit a substantive inquiry into all other factors to

determine whether the person has in fact maintained continuous residence.16

An absence of over one year with a Re-Entry Permit still breaks the continuity of residence for

naturalization, unless the applicant also qualifies and applies for the much narrower benefits

under INA §316(b), by filing and obtaining approval of a Form N-470, Application to Preserve

Residence for Naturalization Purposes.17

The N-470 application to preserve continuous residence covers:

“a person who has been physically present and residing in the United States after being

lawfully admitted for permanent residence for an uninterrupted period of at least one

year and who thereafter, is employed by or under contract with the Government of the

United States or an American institution of research recognized as such by the Attorney

General, or is employed by an American firm or corporation engaged in whole or in

part in the development of foreign trade and commerce of the United States, or a

subsidiary thereof more than 50 per centum of whose stock is owned by an American

firm or corporation, or is employed by a public international organization of which the

United States is a member by treaty or statute and by which the alien was not employed

until after being lawfully admitted for permanent residence, no period of absence from

the United States shall break the continuity of residence if-

(1) prior to the beginning of such period of employment (whether such period begins

before or after his departure from the United States), but prior to the expiration of one

year of continuous absence from the United States, the person has established to the

satisfaction of the Attorney General that his absence from the United States for such

period is to be on behalf of such Government, or for the purpose of carrying on

scientific research on behalf of such institution, or to be engaged in the development of

such foreign trade and commerce or whose residence abroad is necessary to the

protection of the property rights in such countries of such firm or corporation, or to be

employed by a public international organization of which the United States is a member

by treaty or statute and by which the alien was not employed until after being lawfully

admitted for permanent residence.18

The N-470 application is of limited utility, because the statute expressly disqualifies most of the

people it purports to benefit. INA §316(b) requires the applicant to have spent 365 uninterrupted

days of physical presence and continuous residence in the United States, prior to a transfer abroad

for a year or more. Thus, the only applicants who qualify to preserve their continuity of residence

for naturalization purposes are those who have not set foot outside the United States at all for at

least one full calendar year after becoming a permanent resident and before they are transferred

14 INA §316(b) 15 INA §223 16 8 CFR §223.3(d)(1) 17 INA §316(b); 8 CFR §316.5(d) 18 INA §316(b)

abroad. This rarely occurs in real life - when any US company, research institution, government

agency, or international organization is about to transfer a worker abroad for a posting that will

last more than a year, it is overwhelmingly likely that the organization will have required that

person to travel abroad frequently in all years preceding the transfer, and the worker is equally

likely to have engaged in frequent international travel even in previous jobs.

Whether or not they had a Re-Entry Permit while abroad, individuals who broke continuity of

residence by spending too long a time period living outside the United States, but who then move

back to the United States, do not have to wait the whole statutory period to become eligible to file

an N-400. Most applicants, filing under INA §316(a), may apply for naturalization four years and

one day after moving back to a primary residence in the United States, and spouses of U.S.

citizens applying under INA 319(a) may file two years and one day after moving back to the

United States.19

Conclusion

In summary, even though the definition of residence is “actual dwelling place in fact,” there are a

plethora of situations where the applicant’s intentions, or lack thereof, such as accidental long

stays abroad due to events beyond the applicant’s control, may be dispositive in helping USCIS to

determine whether or not continuous residence has been broken or abandoned.

Karin Wolman is a sole practitioner in New York serving businesses of all sizes, non-profit

organizations and individuals, across industries from healthcare and the sciences, academia,

finance and technology, to the performing arts and entertainment, fine and graphic arts and new

media, culinary arts, fashion and beauty, architecture and design. Ms. Wolman is a frequent

speaker at local and national conferences on topics in immigration law ranging from aliens of

extraordinary ability to naturalization, for organizations including AILA, the Practising Law

Institute, New Jersey Institute of Continuing Legal Education, and New York State Bar

Association. A graduate of Columbia University and UCLA School of Law, she worked at the

Brooklyn Academy of Music when the O & P categories were introduced. She has served since

2002 as moderator of the AILA InfoNet forum on O & P visas, in addition to other employment-

based forums. Learn more about the Law Office of Karin Wolman, PLLC at

www.kwvisalaw.com.

19 8 CFR §316.5(c )(1)(ii)

http://www.kwvisalaw.com/

2/26/2017

1

ACQUIRING & DERIVING CITIZENSHIP

An Overview

Rev. 10/03/11 1

OVERVIEW

A.ClarificationsB. Acquisition of CitizenshipC.Derivation of Citizenship

2/26/2017 2

SOME CLARIFICATIONS

Naturalization Requires affirmative act Decision made by govt. Governed by set of ”normative” (e.g. good moral character) and procedural requirements (e.g. 5 years as LPR).

Derivation/Acquisition Happens by operation of law.

Govt. is simply providing evidence of citizenship—not granting it.

No “normative” or “qualitative” requirements.

Rev. 10/03/11 3

2/26/2017

2

ACQUISITION VS. DERIVATION

Acquisition of Citizenship occurs at birth abroad when parent(s) fulfill certain requirements.

Derivation of Citizenship occurs after birth when child and parent(s) fulfill certain requirements.

REAL LIFE SCENARIOS

When might this issue arise?

Detained client indicates that one/both of their parents are USCs.

“EWIs” born to USC parents.

If USC parent(s) lives abroad and require proof of citizenship for their child (Consular Report of Birth Abroad)

Other long-time LPRs who originally entered as children.

ACQUISITION OF CITIZENSHIP

Some potential clients may be U.S. citizens and not even know it.

If you are a U.S. citizen, then you cannot naturalize because you are already have citizenship.

No good moral character requirement

Grounds of inadmissibility/deportability don’t apply.

2/26/2017

3

GRUDGE MATCH – PASSPORT V. N-600

N-600 • Cost – $1,170 (but fee waiver optional)

• Apply via paper• Time – In NY, approximately 1 year• You get to deal with USCIS

Passport • International Travel • Where no joint citizenship, may be the only

option• And see INA 215(b)

• Apply in person• Cost – $110• Time – Approximately 6 weeks• You get to deal with DOS

2/26/2017 7


2/26/2017 8


Happens at birth—automatically!

A person born outside theUnited States to a U.S.citizen parent (or parents)acquires U.S. citizenship atthe time of birth abroad ifthe parent(s) meets certainrequirements before thechild is born.

If the parent(s) meets therequirements before thechild is born then theparent(s) transmit citizenshipto the child automatically atthe time of birth abroad.

2/26/2017

4

ACQUISITION OF CITIZENSHIP: RECURRING THEMES

Laws on acquisition have changed significantly.

To determine whether a child acquired U.S. citizenship at birth abroad, the statute that was in effect at the time of the child’s birth controls.

See ILRC Acquisition Charts A and B for a summary of various acquisition laws. Charts A & B lay out the time periods of each law

ACQUISITION OF CITIZENSHIP: RECURRING THEMES

The requirements that the parent must meet have varied over time but relate to:

− Parents’ marital status (e.g., whether the child was born in or out of wedlock)

− Legitimation/acknowledgement/proof of paternity, and − Parents’ residence in the United States before the child

was born.

ACQUISITION OF CITIZENSHIP: THE LAW

Child “Born in Wedlock”

If two USC parents: At least one parent “resided” in the U.S. prior to the child’s birth.

If one U.S. citizen parent and One Foreign National Parent: The U.S. citizen parent was “physically present” in the United States for period(s) of 5 years before the child’s birth.

At least 2 years while 14 or older.

**Different requirements may apply for clients covered by older laws.**

2/26/2017

5


Child Born out of Wedlock to USC FatherChild born out of wedlock outside the United States to a USC father and a foreign national mother:1. Blood relationship between father

and child is established,2. Father was USC at time of child’s

birth,3. Father has agreed in writing (unless

deceased) to financially support child until child turns 18, AND


Tricky Requirement4. While the child is under age 18:

− The child is legitimated under the law of their residence/domicile,

− The father acknowledges paternity in writing under oath, OR

− The paternity of the child is established by adjudication of a competent court

NOTE: Physical presence and continuous residence requirements still apply (i.e. 5 years, with 2 at least after 14.


COMPARE: Child Born out of Wedlock to USC MotherSomeone born out of wedlock and outside the United States to a USC mother, the mother was: USC at time of child’s birth, and Physically present in the United States for a continuous period of

one year before the child’s birth.

2/26/2017

6

ACQUISITION OF CITIZENSHIP: SCREENING

Questions to ask people who were born outside the United States to gather supporting documentation: What is your date of birth? Were your parents ever married? Before your

birth? What was the citizenship of each parent at the

time of your birth? Where did your parents physically reside up

through your date of birth? What are your parents’ dates of birth?

OPTIONS FOR THOSE WHO HAVE ACQUIRED

2/26/2017 17

1. United States Passport (FS-11)2. Form N-6003. Consular Report of Birth Abroad (FS-240)

**Same Evidence Used for All of These Options**

CASE STUDY

Esperanza was born in Puerto Rico in 1960 and was raised in Puerto Rico. In 1980, at age 20, she moved to Mexico. In 1982, she met and married Santos, a citizen of Mexico. Their child, Pedro, was born on February 16, 1989. Is Pedro a U.S. citizen?

2/26/2017

7

Is Pedro a U.S. citizen?

A. No, because Esperanza was not present in the United States for at least 5 years after age 14.

B. No, because Pedro never lived inside the United States.C. Yes, because Esperanza was present in the United States or it’s outlying possessions for at least 5 years before Pedro was born, 2 of which were over age 14.D. Yes, Esperanza and Santos were married when Pedro was born.

POLL QUESTION

CASE STUDY

Is Olanna a U.S. citizen?Eric, a Kenyan native, entered the U.S. in 1991 at the age of 10. In 2001, Eric became a naturalized U.S. citizen. He moved to South Africa in 2008 when he was 27 years old. While in South Africa, Eric met Nina, a citizen of South Africa. In February 2012, they had a daughter, Olanna. Eric and Nina never married. Is Olanna a U.S. citizen?

POLL QUESTION

A. Yes, but only if Eric can prove his father-child relationship with Olanna, and he provides a written statement that he’ll financially support Olanna until her 18th birthday, and he either legitimates Olanna, or acknowledges his paternity of Olanna, or paternity is otherwise determined by a court.B. No, because Eric did not reside in the United States for enough time before Olanna was born.C. Yes, because Eric has 5 year of physical presence in the United States, 2 of which were after age 14 and before Olanna was born.D. No, because it is almost impossible to transmit U.S. citizenship to children born out of wedlock to U.S. citizen fathers.

Is Olanna a U.S. citizen?

2/26/2017

8

DERIVATION OF CITIZENSHIP

2/26/2017 22


A person born outside the United States can derive U.S. citizenship after birth through her/his parent or parents if certain requirements are met.Like acquisition, derivation of citizenship happens automatically by operation of law.


The Child Citizenship Act of 2000 became effective on February 27, 2001.

Simplified requirements of older laws.

Note: The law is not retroactive.

Anyone born on or after February 28, 1983 must meet the following requirements in order to derive U.S. citizenship through their parent or parents:

2/26/2017

9

DERIVATION OF CITIZENSHIP: CORE REQUIREMENTS

The child must be: Unmarried (to still qualify as a “child”) Under 18 A lawful permanent resident (LPR) Residing in the United States in the physical and legal custody of the citizen parent

At least one parent is a USC by birth or naturalization

HYPOTHETICAL - ELENA

Elena is a Honduran national. When she was 5 years-old, her mother (also a Honduran national) married Ulrich, a U.S. citizen since birth who had relocated to Honduras. 5 years later, Ulrich decided to move back to the U.S., so he filed immigrant visa petitions for both Elena and her mother, which ultimately allowed them to consular process and enter the U.S. as LPRs. Elena was 10 at the time. Ulrich has been a fantastic stepfather ever since!Did Elena derive citizenship?

DERIVATION OF CITIZENSHIPStepchildren and adopted children

Adopted children can derivecitizenship if: They were adopted before their16th birthday, and

Have resided with and been inthe legal custody of the adoptiveparent(s) for at least 2 years.

Adopted children who qualify asorphans under immigration lawcan derive citizenship.Unadopted step-children do notderive U.S. citizenship becausethey are not within the definitionof “child” for nationality purposes.

2/26/2017

10


Under the Child Citizenship Act, when all qualifying events take place (regardless of order), the child automatically derives U.S. citizenship from the parent(s).

The law in effect at the time of the final qualifying “act” is what controls whether the person derives U.S. citizenship.

DERIVATIVE CITIZENSHIP

For children born out of wedlock

The mother must be the one who is a U.S. citizen or becomes a U.S. citizen,

OR

If the father is a U.S. citizen (through birth or other means), then father must legitimate child before child’s 16th birthday.

HYPOTHETICAL– BACK TO ELENA

Elena is a Honduran national. When she was 5 years-old, her mother (also a Honduran national) married Ulrich, a U.S. citizen since birth who had relocated to Honduras. Ulrich formally adopted Elena a few months later. 5 years later, he decided to move back to the U.S., so he filed an immigrant visa petition for both Elena and her mother, which ultimately allowed them to consular process and enter the U.S. as LPRs. When did Elena derive citizenship?A) When Ulrich formally adopted Elena.B) When Ulrich married Elena’s mother.C) When the consulate approved Elena’s immigrant visa petition.D) When Elena was admitted to the U.S. as an LPR.

2/26/2017

11


File Form N-600, Application for Certificate of Citizenship w/ supporting evidence

Fee $ 1,170 (as of 2/10/2017)

No Fee if filing as member or veteran of U.S. Armed Forces

2 color photos of applicant taken w/in 30 days of filing application

Filed through Phoenix lockbox

Remember: If the parent(s) and child fulfilled the pre-requisites for derivation of citizenship, the “child” can file the N-600 any time during her/his lifetime

CASE STUDY

Gissell was born in 2000 in the Dominican Republic. Shortly thereafter herparents died in a car accident. Her aunt adopted her in 2003 and Gissell hasbeen living in the legal and physical custody of her adoptive mother eversince. In 2006, Gissell’s adoptive mother married a U.S. citizen, whopetitioned for her and for Gissell to become lawful permanent residents(LPRs). In 2007, Gissell and her adoptive mother were admitted to the U.S. asLPRs. In 2012, Gissell’s adoptive mother naturalized and became a U.S.citizen. Did Gissell derive U.S. citizenship?

POLL QUESTION

A. No, because adopted children cannot derive U.S. citizenship.B. No, because step-children cannot derive U.S. citizenship.C. Yes. Gissell derived U.S. citizenship in 2012, when her adoptive mother naturalized, because adopted children can derive U.S. citizenship.D. Yes. Gissell derived U.S. Citizenship in 2007 because even though she is a step-child of the U.S. citizen who petitioned for her, she was still legally adopted by her aunt.

Did Gissell derive U.S. citizenship?

2/26/2017

12

CASE STUDY

Reza was born in wedlock in October 1990. In 1998, at the age of 8, Rezaand his family came to the U.S. as refugees. In 1999, Reza and his parentsbecame lawful permanent residents. In 2002, Reza’s parents separated andReza continued to live with his mother, who had sole legal custody. In 2009his mother naturalized. A few months later, Reza was convicted of 2nd

degree murder in NY.Did Reza derive U.S. citizenship when his mother naturalized in 2009?

POLL QUESTION

Did Reza derive U.S. citizenship when his mother naturalized in 2009?

A. No, because both the mother and the father must have been U.S. citizens for Reza to have derived U.S. citizenship.B. No, because his mother naturalized after Reza’s 18th

birthday. C. No, because his murder conviction bars him from

citizenship.D. Yes, when his mother naturalized he automatically derived U.S. citizenship.E. Yes, but only if he first takes the oath of allegiance.

EVIDENTIARY ISSUES

Proving the Citizenship status of parents Evidence: Birth certificate; naturalization certificate; certificate of citizenship; U.S. passport. Proving age and residency of parents Evidence: USCIS immigration records; employer records; military records; school records; Social Security earnings; court records; Census Bureau records; affidavits. Proving applicant’s birth and relationship with parents Evidence: birth certificate; medical records; baptismal certificate; school records; blood tests; affidavits.

2/26/2017

13

FINAL THOUGHTS

Discovering your client is a USC can be lifesaving! There are inherent inequalities in this area of law (e.g. gender, “legitimate” v. “illegitimate” children).

U.S. Supreme Court will decide later this year whether an older version of the citizenship-acquisition law violates equal protection under the 5th

Amendment. See Lynch v. Morales-Santana (originally a 2nd Cir. Case). Arguments heard on11/09/2016 – decision forthcoming!

When you bite the N-600 apple, make it count. You can only file once! Though an untimely I-290B may still be an option

2/26/2017 37

(b)(6)

Date: FEB 0 9 2015 Office: MIAMI, FL

IN RE: Applicant:

U.S. Department ofJlomeland Security U.S. Citizenship and Immigration Service Administrative Appeals Office (AAO)

20 Massachusetts Ave., N.W., MS 2090 Washin!l:lon. DC 20529-2090

U.S. Citizenship and Immigration Services

FILE:

APPLICATION: Application for Certificate of Citizenship under Section 320 of the Immigration

and Nationality Act; 8 U. S. C. § 1431.

ON BEHALF OF APPLICANT:

SELF-REPRESENTED

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision. Tbe AAO does not announce new constructions of law nor establish

agency policy through non-precedent decisions.

Thank you,

o Rosenberg

Chief, Administrative Appeals Office

www .uscis.gov

(b)(6)

NON-PRECEDENT DECISION

Page 2

DISCUSSION: The Field Office Director, Miami, Florida (the director) denied the Application for Certificate of Citizenship (Form N-600) and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained.

Pertinent Facts and Procedural History

The record reflects that the applicant was born out of wedlock on 1994 in Cuba. The applicant's mother, became a U.S. citizen upon her naturalization on 2012, when the applicant was years old. The applicant's father, is not a U.S.

citizen. The applicant's parents were married in Cuba in 1998. The applicant was admitted to the United States as lawful permanent resident on : , 2001, when he was years old. The applicant seeks a certificate of citizenship claiming that he acquired U. S. citizenship through his mother pursuant to section 320 of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1431, as amended by the Child Citizenship Act of 2000 (the CCA), Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30, 2000).

The director determined that the applicant failed to establish that he was in his mother's physical custody and, as such, did not automatically acquire U.S. citizenship upon her naturalization. The application was denied accordingly. See Director Decision, dated March 4, 2014.

On appeal, the applicant submits additional documentation listing his address including letters from the dated in January and February 2012; a child support statement addressed to his father dated in June 2012; his mother's pay stubs dated in 2014; food stamps statements dated in 2011, 2013, and 2014; a letter from dated in 2013; and his university transcripts dated in 2014.

Applicable Law

We conduct appellate review on a de novo basis. Because the applicant was born abroad, he is presumed to be an alien and bears the burden of establishing his claim to U.S. citizenship by a preponderance of credible evidence. See Matter of Baires-Larios, 24 I&N Dec. 467, 468 (BIA 2008). The "preponderance of the evidence" standard requires that the record demonstrate that the applicant's claim is "probably true," based on the specific facts of each case. See Matter of

Chawathe, 25 I&N Dec. 369, 376 (AAO 2010) (citing Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r. 1989)).

The applicable law for derivative citizenship purposes is "the law in effect at the time the critical events giving rise to eligibility occurred." See Minasyan v. Gonzales, 401 F.3d 1069, 1075 (91h

Cir. 2005). The applicant was under 18 years of age on the effective date of the CCA, February 27, 2001. Thus, section 320 of the Act, as amended by the CCA, is applicable to his case.

(b)(6)


Page3

Section 320 of the Act provides, in pertinent part, that

(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years. (3) The child is residing in the United States in the legal and physical

custody of the citizen parent pursuant to a lawful admission for permanent residence.

Section 101(c) of the Act, 8 U.S.C. § 1101(c) states, m pertinent part, that for Title III naturalization and citizenship purposes:

The term "child " means an unmarried person under twenty-one years of age and includes a child legitimated under the law of the child's residence or domicile, or under the law of the father's residence or domicile, whether in the United States or elsewhere . . . if such legitimation ... takes place before the child reaches the age of 16 years ... and the child is in the legal custody of the legitimating ... parent or parents at the time of such legitimation ....

Analysis

The applicant's parents' were married in 1998 in Cuba. The applicant was born prior to his parents' marriage, therefore he was born out of wedlock. Thus, at the outset, we must determine if the applicant was legitimated under the law of the applicant's or his father's residence or domicile. Under Cuban law, children born after 1975 are deemed legitimate whether they are born in or out of wedlock. See Matter of Martinez, 18 I. & N. Dec. 399 (BIA 1983). Under the laws of the State of Florida, a child is legitimated by the subsequent marriage of his natural parents. See Section 742.091of Florida Statutes (1992). The applicant was therefore legitimated for purposes of acquisition of citizenship.

The question remains, however, whether the applicant can establish that he was residing in his mother's legal and physical custody prior to his eighteenth birthday. Legal custody vests by virtue of "either a natural right or a court decree. " See Matter of Harris, 15 I&N Dec. 39, 41 (BIA 1970). The regulations define legal custody as "the responsibility for and authority over a child." See 8 C. P.R. § 320.1. Additionally, the regulations provide that legal custody will be presumed "[i]n the case of a biological child born out of wedlock who has been legitimated and currently resides with the natural parent." 8 C. P.R. § 320.1. The Act defines the term

(b)(6)


Page 4

"residence" as "the place of general abode ... his principal, actual dwelling place in fact, without regard to intent." Section 101(a)(33) of the Act, 8 U.S.C. § 1101(a)(33).

The evidence in the record indicates that in 2012, before the applicant's eighteenth birthday, he was residing with his mother. The applicant indicates that his parents were separated, and the record contains a child support statement addressed to the applicant's father suggesting that the applicant was residing with his mother. The applicant's mother is listed as "head of household" in her 2012 federal income tax return. The record also contains evidence that the applicant used his mother's mailing address and that he was listed as her dependent for tax purposes. Legal custody can therefore be presumed under the regulation where, as here, the applicant was born out of wedlock, legitimated, and residing "with the natural parent." The record, by a preponderance of the evidence, establishes that the applicant was residing in his mother's legal and physical custody prior to his eighteenth birth such that he acquired U.S. citizenship upon her naturalization

Conclusion

In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. Section 34l(a) of the Act, 8 U.S.C. § 1452(a). Here, that burden has been met.

ORDER: The appeal is sustained. The matter is returned to the Miami Field Office for issuance of a certificate of citizenship

Chart A: Determining Whether Children Born outside the U.S. Acquired Citizenship at Birth1 (if child born out of wedlock, see Chart B) -- Please Note: A child cannot acquire citizenship at birth through an adoption.2

STEP 1 Select period in which child was born

STEP 2

Select applicable parentage and immigration status of parents

STEP 3 Measure citizen parent’s residence PRIOR to the child’s birth against the requirements for the period in which child was born. The child acquired U.S. citizenship at birth if, at time of child’s birth, citizen parent had already met applicable residence requirements.

STEP 4 Determine whether child has since lost U.S. citizenship. Citizenship was lost on the date it became impossible to meet necessary requirements—never before age 26. Individuals who have failed to meet residence requirements can regain citizenship by taking an oath of allegiance.

PERIOD PARENTS RESIDENCE REQUIRED OF USC PARENT RESIDENCE REQUIRED OF CHILD3

Born prior to 5/24/34

Father or mother citizen Citizen parent had resided in the U.S. None

Born on/after 5/24/34 and prior to 1/14/41

Both parents citizens One had resided in the U.S. None

One citizen and one alien parent Citizen had resided in the U.S.

Either: 1) 2 years continuous physical presence4 between the ages of 14 and 28,5 or 2) if begun before 12/24/52, 5 years residence in U.S. or its outlying possessions between the ages 13 and 21, or 3) if begun before 10/27/72, 5 years continuous physical presence between the ages 14 and 28.6 Individuals unaware of potential U.S. citizenship may fulfill the residence requirement through constructive physical presence.7 No retention requirements if either alien parent naturalized and child began to reside permanently in U.S. while under age 18, or if parent employed in certain occupations such as the U.S. Government. Individuals who failed to meet residence requirements can regain citizenship by taking an oath of allegiance.8


Both parents citizens; or one citizen and one national9

One had resided in the U.S. or its outlying possessions. None

One citizen and one alien parent

Citizen had resided in U.S. or its outlying possessions 10 years, at least 5 of which were after age 16. If citizen parent served honorably in U.S. Armed Forces between 12/7/41 and 12/31/46, 5 of the required 10 years may have been after age 12.10 If the citizen parent served honorably in U.S. Armed Services between 1/1/47 and 12/24/52, 5 of the required 10 years of physical presence may have been after age 14.11

If begun before 10/27/72, 2 or 5 years continuous physical presence12 between ages 14 and 28.13 If begun after 10/27/72, 2 years continuous physical presence between ages 14 and 28. Individuals unaware of potential U.S. citizenship may fulfill the residence requirement through constructive physical presence.14 No retention requirements if either alien parent naturalized and child began to reside permanently in U.S. while under age 18, or if parent employed in certain occupations such as the U.S. Government. (This exemption is not applicable if parent transmitted under the Armed Services exceptions). Individuals who failed to meet residence requirements can regain citizenship by taking an oath of allegiance.15


Both parents citizens One had resided in the U.S. or its outlying possessions. None16

One citizen, one national parent

Citizen had been physically present in U.S or its outlying possessions for a continuous period of one year.17

None18

One citizen, one alien parent

Citizen had been physically present in U.S. or its outlying possessions 10 years, at least 5 of which were after age 14.19 & 20

None21

Born on/after 11/14/86

Both parents citizens One had resided in the U.S. or its outlying possessions. None22

One citizen and one national parent

Citizen had been physically present in U.S. or its outlying possessions for continuous period of 1 year.23 None24

One citizen, one alien parent

Citizen had been physically present in U.S. or its outlying possessions 5 years, at least 2 of which were after age 14.25

None26

Produced by the ILRC (October 2014) — Adapted from the INS Chart Please Note: This Chart is intended as a general reference guide and the ILRC recommends practitioners research the

applicable laws and INS Interpretations for additional information. Please see notes on next page.

The information in these charts comes from case law, statutory language, the CIS policy manual, the Adjudicator’s Field Manual, the Foreign Affairs Manual, and INS interpretations. Although the CIS policy manual supersedes previous policy memos and the Adjudicator’s Field Manual, the CIS policy manual is silent on many subjects discussed at length in prior CIS policy statements and INS Interpretations. In the absence of guidance to the contrary from the CIS policy manual, the ILRC believes advocates should continue to use helpful clarification and guidance from prior CIS policy statements and INS Interpretations. 1 Congress has passed many laws governing the acquisition of citizenship at birth, including the Act of May 24, 1934, the Nationality Act of 1940, the Act of March 16, 1956, and the Immigration and Nationality Amendments of 1986. 2 See Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) (holding that petitioner did not obtain citizenship at birth based on adoption by U.S. citizen since INA § 301(g) did not address citizenship through adoption); see also Colaianni v. INS, 490 F.3d 185 (2d Cir. 2007) (same); but see Solis-Espinoza v. Gonzales, 401 F.3d 1091 (9th Cir. 2005) (holding that a child acquired citizenship through biological father’s wife when they were married at time of birth, father acknowledged child, and mother accepted her as her own); Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) (explaining that a child acquired U.S. citizenship at birth even though neither of his biological parents were citizens, but at the time of his birth his mother was married to a U.S. citizen). 3 If an individual acquired citizenship but did not retain it, that person was a U.S. citizen until s/he failed to comply with the retention requirements. See 7 FAM 1133.2-2. If the individual regained U.S. citizenship by taking an oath of allegiance at a later date, that citizenship is not retroactive. This means that the person could not transmit citizenship to any children born between the time s/he lost citizenship and regained it. See 7 FAM 1140 App. L. 4 For a discussion of continuous physical presence related to these provisions of the law, see INS Interpretations 301.1(b)(6). 5 Allows for absences of fewer than 60 days in aggregate during 2-year period. Former INA 301(b), Pub. L. 92-582, 86 Stat. 1289. In 1972, Congress liberalized retention requirements, reducing the period of continuous physical presence from 5 years to 2 years. Act of Oct. 27, 1972, Pub. L. 92-582, 86 Stat. 1289. While the statute did not address retroactivity, INS Interpretations 301.1(b)(6)(vii) extended the 1972 2-year requirement to those born between 5/24/1934 and 1/13/1941. Per the interpretations, if someone lost citizenship having failed to satisfy the 5-year requirement but had satisfied the amended language for the 2-year requirement, the individual was regarded as never having lost citizenship, nor having interrupted citizenship status. INS Interpretations 301.1(b)(6)(vii). 6 Allows for absences of less than 1 year in aggregate during the 5-year period. Former INA 301(b), Pub. L. 85-316, 71 Stat. 639. 7 In some cases, applicants will be able to fulfill their retention requirements even though they were not physically present in the U.S. Naturalization law allows for applicants to “constructively” meet the retention requirement when they did not know earlier they had a claim to U.S. citizenship. This essentially waives the retention requirement. INS Interpretations 301.1(b)(6)(iii); see also 7 FAM 1120 App. K (detailed overview of unawareness). In order to meet this exception, the applicant must:

• Be provided with a reasonable opportunity to enter the United States after becoming aware of the claim of U.S. citizenship. Matter of Yanez-Carrillo, 10 I&N Dec. 366 (BIA 1963); and

• Enter the United States promptly. See Matter of Farley, 11 I&N Dec. 51, 53 (BIA 1965). If the applicant satisfies these conditions, she is deemed present in the United States from a date immediately prior to her 23rd birthday (if under the 5-year requirement) or 26th birthday (if under the 2-year requirement) until her date of admission. See Matter of Farley, 11 I & N Dec. 51 (BIA 1965). This means than an applicant can be found to have constructive presence retroactively even if she is currently too old to fulfill the retention requirements. See Matter of Navarrete, 12 I.&N. Dec. 138, 141 (BIA 1967) (finding that someone over the age of 28 had had constructive presence and thus retained citizenship). The State Department also provides that constructive physical presence may apply in cases where an applicant presents a defense of impossibility of performance or official misinformation. See 7 FAM 1130 App. K; 7 FAM 1140 App. K. 8 Under the 1994 Immigration and Nationality Technical Corrections Act, those who failed to meet the physical presence retention requirement may regain their citizenship by taking an oath of allegiance to the United States. See INA § 324(d)(1). This procedure does not apply citizenship retroactively for any period in which the person was not a citizen. Id. The person regains citizenship as of the date that the oath is taken. Since the oath does not restore citizenship, persons will be unable to transmit citizenship to their children born during the period between loss and resumption of U.S. citizenship. 61 FR 29651 (June 12, 1996). 9 For a definition of “national,” please see INA §§ 308 and 101(a)(29) and Chapter 4 of the ILRC’s manual, Naturalization and U.S. Citizenship: The Essential Legal Guide. 10 See INS Interpretations 301.1(b)(3)(ii) for a discussion of the residence requirements for parents who served in the Armed Forces between 12/7/41 and 12/31/46. 11 INS Interpretations 301.1(b) and the Act of March 16, 1956, Public Law 84-430, 70 Stat. 50. Periods of honorable military service abroad may satisfy the physical presence requirement in the United States. 7 FAM 1133.3-3(d)INS Interpretations; § 301.1(b)(4)(ii). 12 See Note 4, supra. 13 Under the 1972 Amendment, persons who entered before October 27, 1972 were allowed to comply with the original 5-year requirement for a period extending beyond October 27, 1972 as long as the 5-year period began on or before October 26, 1972. See INS Interpretations 301.1(b)(6)(x). Individuals may prefer the longer requirement due to the more lenient absence standard: the 2-year requirement allows for absences of fewer than 60 days in aggregate; the 5-year requirement allows for absences less than 1 year in aggregate. 14 See Note 7, supra. 15 See Note 8, supra. 16 People born on or after 10/10/52 have no retention requirements. INS Interpretations § 301.1(b)(6)(xii). Retention requirements were repealed by Act of 10/10/78 (Pub. L. 95-432, 92 Stat 1046). 17 See Note 4, supra.

18 See Note 16, supra. 19 See INA § 301(g) for exceptions to the physical presence requirements for people who served honorably in the U.S. military, were employed with the U.S. Government or with an intergovernmental international organization; or who were the dependent unmarried sons or daughters and member of the household of a parent in such military service or employment. 20 Several recent cases have challenged the less favorable residence requirement for a married U.S. citizen parent (10 years, with 5 years after the age of 14) compared to the residence requirement for an unmarried U.S. citizen parent (1 year of previous continuous residence). The Ninth Circuit recently rejected the argument that the differing requirements violate the equal protection clause in United States v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008). The Supreme Court split 4-4 with Justice Kagan recused, leaving the Ninth Circuit ruling in effect. Flores-Villar, 559 U.S. 1005 (2011). 21 See Note 16, supra. 22 See Note 16, supra. 23 See Note 4, supra. 24 See Note 16, supra. 25 See Note 20, supra. 26 See Note 16, supra.

CHART B: ACQUISITION OF CITIZENSHIP DETERMINING IF CHILDREN BORN ABROAD AND

OUT OF WEDLOCK ACQUIRED U.S. CITIZENSHIP AT BIRTH1 PART 1 — Mother was a U.S. citizen at the time of the child’s birth. PART 2 — Mother was not a U.S. citizen at the time of the child's birth and the child was legitimated or acknowledged by a U.S. citizen father. Please Note: A child cannot acquire citizenship at birth through an adoption.2 PART 1: MOTHER IS A U.S. CITIZEN AT THE TIME OF THE CHILD’S BIRTH

Date of Child’s Birth: Requirements:

Prior to 12/24/52:3

Mother was a U.S. citizen who resided in the U.S. or its outlying possessions at some point prior to birth of child. EXCEPTION: The child will not acquire citizenship through the U.S. citizen mother if she was legitimated by the father under the following circumstances:4 1. The child was born before 5/24/34; 2. The child was legitimated before turning 21; AND 3. The legitimation occurred before 1/13/41.

On/after 12/24/52: Mother was U.S. citizen physically present in the U.S. or its outlying possessions for a continuous period of 1 year at some point prior to birth of child.

PART 2: MOTHER WAS NOT A U.S. CITIZEN AT THE TIME OF THE CHILD’S BIRTH AND THE CHILD HAS BEEN LEGITIMATED OR ACKNOWLEDGED BY FATHER,5 WHO WAS A U.S. CITIZEN WHEN CHILD WAS BORN6 Date of Child’s Birth:

Requirements:

Prior to 1/13/41: 1. Child legitimated at any time after birth, including adulthood, under law of father’s domicile. 2. If so, use CHART A to determine if child acquired citizenship at birth.

On/after 1/13/41 and prior to 12/24/52:

1. Child legitimated before age 21 under law of father’s domicile, or paternity established through court proceedings before 12/24/52.

2. If so, use CHART A to determine if child acquired citizenship at birth unless paternity established through court proceeding.7


1. Child legitimated before age 21 under law of father or child’s domicile.8 2. If so, use CHART A to determine if child acquired citizenship at birth.


OPTION A: 1. Child legitimated before age 21 under law of father or child’s domicile. 2. If so, use CHART A to determine if child acquired citizenship at birth.

OPTION B:9 1. Child/father blood relationship established by clear and convincing evidence;10 2. Father must have been a U.S. citizen at the time of child’s birth; 3. Father, unless deceased, must provide written statement under oath that he will provide financial

support for child until she reaches 18;11 and 4. While child is under age 18, child must be legitimated under law of child’s residence or domicile,12

or father must acknowledge paternity of child in writing under oath, or paternity must be established by competent court.

5. If #s 1–4 are met, use CHART A to determine if child acquired citizenship at birth.

On/after 11/15/71:13

1. Child/father blood relationship established by clear and convincing evidence;8 2. Father must have been a U.S. citizen at the time of child’s birth; 3. Father, unless deceased, must provide written statement under oath that he will provide financial

support for child until she reaches 18; and 4. While child is under age 18, child must be legitimated under law of child’s residence or domicile,

or father must acknowledge paternity of child in writing under oath, or paternity must be established by competent court.

5. If #s 1–4 are met, use CHART A to determine if child acquired citizenship at birth.14

Produced by the ILRC (October 2014) Please Note: This Chart is intended as a general reference guide and the ILRC recommends practitioners research the

applicable laws and INS Interpretations for additional information.

Endnotes for Chart B The information in these charts comes from case law, statutory language, the CIS policy manual, the Adjudicator’s Field Manual, the Foreign Affairs Manual, and INS interpretations. Although the CIS policy manual supersedes previous policy memos and the Adjudicator’s Field Manual, the CIS policy manual is silent on many subjects discussed at length in prior CIS policy statements and INS Interpretations. In the absence of guidance to the contrary from the CIS policy manual, the ILRC believes advocates should continue to use helpful clarifications and guidance from prior CIS policy statements and INS Interpretations. 1 Congress has passed many laws governing the acquisition of citizenship at birth, including the Act of May 24, 1934, the Nationality Act of 1940, the Act of March 16, 1956, and the Immigration and Nationality Amendments of 1986. 2 See Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. 2006) (holding that petitioner did not obtain citizenship at birth based on adoption by U.S. citizen since INA § 301(g) did not address citizenship through adoption); see also Colaianni v. INS, 490 F.3d 185 (2d Cir. 2007) (same); 7 FAM 1131.4(a) (requiring an actual blood relationship; birth in wedlock insufficient to presume paternity for acquisition); but see Solis-Espinoza v. Gonzales, 401 F.3d 1091 (9th Cir. 2005) (holding that a child acquired citizenship through biological father’s wife when they were married at time of birth, father acknowledged child, and mother accepted her as her own); Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) (explaining that a child acquired U.S. citizenship at birth even though neither of his biological parents were citizens, but at the time of his birth his mother was married to a U.S. citizen). 3 A qualifying child born before 5/24/34 acquired U.S. citizenship when the Nationality Act of 1940, effective 1/13/41, bestowed citizenship upon the child retroactively to the date of birth. 4 Matter of M-, 4 I&N Dec. 440, 443–44 (BIA 1951). 5 Many of the criteria for “legitimation” look to the law of the child or father’s domicile. See 7 Fam 1130, at 59-69 for summaries of legitimation requirements for U.S. states and territories. Note that the Fifth Circuit recently held that a child was “legitimated” under Mexican law when his father “acknowledged” him by placing his name on the child’s birth certificate. Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013) (reversing more than three decades of previous interpretation of Mexican requirements). 6 If the child did not acquire citizenship through her mother, but was legitimated by a U.S. citizen father under the listed conditions, apply the acquisition law pertinent to legitimate children born in a foreign country. See CHART A. The U. S. Supreme Court ruled that the laws that treat children born out of wedlock to U.S. citizen fathers differently than children born to U.S. citizen mothers do not violate equal protection. See United States v. Flores-Villar, 559 U.S. 1005 (2011) (split decision, leaving Ninth Circuit decision in place); Tuan Anh Nguyen v INS, 533 U.S. 53 (2001). 7 The patchwork of amended laws in this period, some of which did not cross-reference existing laws, has produced several avenues for fulfilling the residency requirements during this period for legitimated children. In this period, if the father legitimates the child before the age of 21, the applicant can apply either the residency requirements set by § 201(g) of the Nationality Act or set by § 301(a)(7) of the former INA. 7 FAM 1134.5-3. Under the NA, one can qualify if 1) the father has 10 years residence in the U.S., 5 of which are after the age of 16; and 2) the child must reside in the U.S. for a period or periods totaling 5 years between the ages of 13 and 21. See 7 FAM 1134.2 (NA). (Or, if the father served honorably in the U.S. Armed Services after Dec. 7, 1941 and before Dec. 31, 1946, then the father must have 10 years in the U.S., 5 of which after the age of 12. In this scenario the child need not be legitimated but must satisfy the INA’s retention requirements. See INA §201(i)). Under the INA, one can qualify if 1) the father must have 10 years residence in the U.S., 5 after the age of 14; and 2) the child must have been in the U.S. for 5 years between ages 14 and 28. 7 FAM 1133.2-2 (former INA). However, if the paternity is established through court proceedings, he may only comply with the residence requirements of § 201(g) of the Nationality Act of 1940. Additionally, children of U.S. veterans born in this period may be eligible for citizenship under either the NA or the INA. Y.T. v. Bell, 478 F. Supp. 828 (W.D. Pa. 1979); 7 FAM 1134.4. 8 For children born out of wedlock, legitimation under the statute in effect during this period, 8 USC § 1409(a) (1952), must be by the biological father. See United States v. Marguet-Pillado, 560 F.3d 1078 (9th Cir. 2009) (holding that a child born out of wedlock, neither of whose natural parents was a U.S. citizen at the time of his birth, cannot acquire citizenship at birth because of a subsequent action by a U.S. citizen); Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009) (explaining that a person born out of wedlock who claims citizenship by birth should actually share a blood relationship with U.S. citizen). 9 Individuals born in this range can elect whether to establish citizenship either under Option A, “old” INA § 309, or Option B, “new” INA § 309, amended by the INAA, Pub. L. 99-653 (Nov. 14, 1986). The decision can be based on which requirements are easier for the individual to prove. See 7 FAM 1133.4-2(a)(3). 10 INA § 309 does not require a blood test or any other specific type of evidence; but under the clear and convincing standard, the fact-finder must come to “a firm belief in the truth of the facts asserted.” 7 FAM 1133.4-2; see, e.g., Miller v. Albright, 523 U.S. 420, 437 (1977) (noting that clear and convincing standard of proof of paternity does not require DNA evidence). Certainly DNA evidence would suffice, but it is unclear how much less convincing evidence could be and still overcome the “clear and convincing” hurdle. Practitioners would be prudent to have DNA testing conducted if possible. 11 The statutory language does not technically require that the letter be written before the child was 18. See 8 USC § 1409(a)(3). Although there is no case law on point, advocates can nevertheless try to argue that a letter written by the father after the child reaches 18, coupled with proof of actual support while the child was under 18, should still satisfy this requirement. See Miller v. Albright, 523 U.S. 420, 432 (1998) (declining to interpret 8 USC § 1409(a)(3)); U.S. v. Gomez-Orozco, 188 F.3d 422 (7th Cir. Aug 05, 1999) (reversing to allow petitioner to explore claim to U.S. citizenship under, among others, 8 USC 1409(a) even where there was no written statement). 12 If a legitimation occurred, Option A is the more favorable approach for acquisition of citizenship, not Option B. See Note 9, supra. 13 If a child was already legitimated before 1986 (i.e. legitimated before age 21 under the law of the father or child’s domicile, described as Option A above), that child had already become a U.S. citizen when the new laws went into effect. Thus the more stringent laws enacted in 1986 (described as Option B above) are irrelevant to those children because they had already become U.S. citizens, and the new laws acknowledge that they cannot revoke that citizenship. Pub. L. 100-525, § 8(r), (Oct. 24, 1988). 14 Note that if the child was born on or after 11/15/86, the residence requirement for the U.S. citizen father under CHART A changes.

CHART C: DERIVATIVE CITIZENSHIP -- LAWFUL PERMANENT RESIDENT CHILDREN GAINING CITIZENSHIP THROUGH PARENTS’ CITIZENSHIP1

Date of Last Act Requirements

Prior to 5/24/34:2

a. Either one or both parents must have been naturalized prior to the child’s 21st birthday;3 b. Child must be lawful permanent resident before the child’s 21st birthday;4 c. Illegitimate child may derive through mother’s naturalization only; d. Legitimated child must have been legitimated according to the laws of the father’s domicile;5 e. Adopted child and stepchild cannot derive citizenship.

5/24/34 to 1/12/41:

a. Both parents must have been naturalized and begun lawful permanent residence in the U.S. prior to the child’s 21st birthday; b. If only one parent naturalized and s/he is not widowed or separated, the child must have 5 years lawful permanent residence in the U.S. commencing before the 21st

birthday, unless the other parent is already a U.S. citizen;6 c. Child must be lawful permanent resident before the child’s 21st birthday; d. Illegitimate child may derive through mother’s naturalization only, in which case the status of the other parent is irrelevant; e. Legitimated child must have been legitimated according to the laws of the father’s domicile;7 f. Adopted child and stepchild cannot derive citizenship.

1/13/41 to 12/23/52:

a. Both parents must naturalize, or if only one parent naturalizes, the other parent must be either a U.S. citizen at the time of the child’s birth and remain a U.S. citizen, or be deceased, or the parents must be legally separated8 and the naturalizing parent must have legal custody;9

b. Parent or parents must have been naturalized prior to the child’s 18th birthday; c. Child must have been lawfully admitted for permanent residence before the child’s 18th birthday; d. Illegitimate child can only derive if while s/he was under 16, s/he became a lawful permanent resident and his/her mother naturalized and both of those events

(naturalization of mother and permanent residence status of child) occurred on or after 1/13/41 and before 12/24/52;10 e. Legitimated child must be legitimated under the law of the child’s residence or place of domicile before turning 16 and be in the legal custody of the legitimating

parent;11 f. Adopted child and stepchild cannot derive citizenship.12

12/24/52 to 10/5/78:13

a. Both parents must naturalize, or if only one parent naturalizes, the other parent must be either a U.S. citizen at the time of the child’s birth and remain a U.S. citizen,14 or be deceased, or the parents must be legally separated15 and the naturalizing parent must have custody; 16

b. In the case of a child who was illegitimate at birth, the child must not be legitimated, and it must be the mother who naturalizes.17 If the child is legitimated, s/he can derive only if both parents naturalize, or the non-naturalizing parent is dead;18

c. Parent or parents must have been naturalized prior to the child’s 18th birthday;19 d. Child must have begun to reside permanently in U.S. (defined in most places as having been admitted for lawful permanent residence) before the child’s 18th birthday;20 e. Child must be unmarried;21 f. Adopted child and stepchild cannot derive citizenship.22

10/5/78 to 2/26/01:

a. Both parents must naturalize, or if only one parent naturalizes, the other parent must be either a U.S. citizen at the time of the child’s birth and remain a U.S. citizen,23 or be deceased,24 or the parents must be legally separated25 and the naturalizing parent must have legal custody;26

b. In the case of a child who was illegitimate at birth, the child must not be legitimated, and it must be the mother who naturalizes. If the child is legitimated, s/he can derive only if both parents naturalize, or the non-naturalizing parent is dead;27

c. Parent or parents must have been naturalized prior to the child’s 18th birthday;28 d. Child must have begun to reside permanently in U.S. (defined in most places as having been admitted for lawful permanent residence) before the 18th birthday;29 e. Child must be unmarried;30 f. Adopted child may derive citizenship if the child is residing in the U.S. at the time of the adoptive parent(s)’s naturalization,31 is in the custody32 of the adoptive

parent(s), is a lawful permanent resident and adoption occurred before s/he turned 18.33 Stepchild cannot derive citizenship.34

Anyone who, on or after 2/27/01, meets the following requirements, is a U.S. citizen:35 Another way to look at it is anyone born on/after 2/28/83 and meets the following requirements is a U.S. citizen.

a. At least one parent is a U.S. citizen either by birth or naturalization;36 b. In the case of a child who was born out of wedlock, the mother must be the one who is or becomes a citizen37 OR, if the father is a U.S. citizen through naturalization or

other means then the child must have been legitimated by the father under either the law of the child’s or father’s residence or domicile and the legitimation must take place before the child reaches the age of 16;38

c. Child is under 18 years old;39 d. Child must be unmarried;40 e. Child is a lawful permanent resident;41 f. Child is residing in the U.S. in the legal and physical custody of the citizen parent;42 g. Adopted children qualify so long as s/he was adopted before the age of 16 and has been in the legal custody of, and has resided with, the adopting parent(s) for at least

two years.43 An adopted child who qualifies as an orphan under INA § 101(b)(1)(F) also will qualify for derivation. Produced by ILRC (March 2015) - This Chart is intended as a general reference guide. ILRC recommends practitioners research the applicable law.

Endnotes for Chart C: The information in these charts comes from case law, statutory language, the CIS policy manual, the Adjudicator’s Field Manual, the Foreign Affairs Manual, and INS interpretations. Although the CIS policy manual supersedes previous policy memos and the Adjudicator’s Field Manual, the CIS policy manual is silent on many subjects discussed at length in prior CIS policy statements and INS Interpretations. In the absence of guidance to the contrary from the CIS policy manual, the ILRC believes advocates should continue to use helpful clarifications and guidance from prior CIS policy statements and INS Interpretations. 1 Congress has passed many laws on derivation of citizenship, including the Act of May 24, 1934, the Nationality Act of 1940, the Immigration and Nationality Act sections 320 and 321, the Act of October 5, 1978, the Act of December 29, 1981, the Act of November 14, 1986, and the Child Citizenship Act of 2000. 2 Prior to 1907 a mother could transmit citizenship only if she was divorced or widowed. See Levy, U.S. Citizenship and Naturalization § 5:12 (ed. 2013–14). 3 It is the ILRC’s position, and the ILRC believes that all advocates should argue, that the definition of “prior to the 18th birthday” or “prior to the 21st birthday” means prior to or on the date of the birthday. See Duarte-Ceri v. Holder, 630 F.3d 83 (2d Cir 2010); Matter of L-M- and C-Y-C-, 4 I&N Dec. 617 (BIA 1952) (finding that “prior to” included “prior to or on” the date with respect to retention requirements for acquisition of citizenship). Although the CIS Policy Manual is silent on the subject, CIS officers may not agree. See INS Interpretations 320.2. 4 Prior to 1907 the child could take up residence in the U.S. after turning 21 years of age. See Levy, U.S. Citizenship and Naturalization § 5:12 (ed. 2013–14) (citing Sec. 5, Act of March 2, 1907). 5 Legitimation could take place before or after the child turns 21. The child derives citizenship upon the naturalization of the parent(s) or upon the child taking up residence in the U.S. See 7 FAM 1135.3; INS Interpretations 320.1(b). 6 The five-year period can commence before or after the naturalization of the parent and can last until after the child turns 21 and until after 1941. See Sec. 5, Act of March 2, 1907 as amended by Sec. 2, Act of May 24, 1934 and INS Interpretations 320.1(a)(3). 7 See Note 5, supra. 8 See U.S. v. Casasola, 670 F.3d 1023 (9th Cir. 2012) (rejecting equal protection challenge that “legal separation” requirement irrationally distinguished between married and legally separated parents). Circuit courts have split on what constitutes a “legal separation.” See Morgan v. A.G., 432 F.3d 226, 231–32 (3d Cir. 2005) (reviewing cases); 12-11 Bender’s Immigr. Bull. 2 (2007). The Fourth, Fifth, and Seventh Circuits have required judicial decrees of limited or absolute divorce or separation. See Afeta v. Gonzales, 467 F.3d 402 (4th Cir. 2006); Nehme v. INS, 252 F.3d 415, 422 (5th Cir. 2001); Wedderburn v. INS, 215 F.3d 795, 799 (7th Cir. 2000); see also Matter of H-, 3 I&N Dec. 742 (BIA 1949) (requiring some sort of limited or absolute divorce through judicial proceedings). The Second, Third, and Ninth Circuits have required only a legal alteration which can occur through nonjudicial procedures. See Lewis v. Gonzales, 481 F.3d 125, 130–32 (2d Cir. 2007); Bagot v Ashcroft, 398 F.3d 252 (3d Cir. 2005); Minasyan v. Gonzales, 401 F.3d 1069 (9th Cir. 2005). Where the actual “parents” of the child were never lawfully married, there could be no legal separation. For more on this topic, see Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005), and Nehme v. INS, 252 F.3d 415 (5th Cir. 2001). In Henry v. Quarantillo, 684 F. Supp. 2d 298 (E.D.N.Y. 2010), although the district court noted the possibility of “legal separation” of unwed parents according to a change to Jamaican law in 2005, it found a nunc pro tunc order establishing such legal separation of unwed parents insufficient to show legal custody for derivation purposes. 9 See 7 FAM 1156.8. Until recently, the general rule was that if the parents have a joint custody decree (legal document), then both parents have legal custody for purposes of derivative citizenship. See Passport Bulletin 96-18 (Nov. 6, 1996). Yet, in the Ninth and Fifth Circuits, the courts of appeals ruled that the naturalizing parent must have sole legal custody for the child to derive citizenship and thus, at least in the Ninth and Fifth Circuits, a joint legal custody decree will not be sufficient to allow a child to derive citizenship. See U.S. v. Casasola, 670 F.3d 1023 (9th Cir. 2012); Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. 2006) (requiring naturalized citizen parent to have sole legal custody of the child for derivative citizenship); see also Rodrigues v. Att’y Gen. of U.S., 321 Fed. App’x 166 (3d Cir. 2009).

When the parents have divorced or separated and the decree does not say who has custody of the child and the U.S. citizen parent has physical custody (meaning that the child lives with that parent), the child can derive citizenship through that parent provided all the other conditions are met. See Passport Bulletin 96-18 (Nov. 6, 1996) (referencing Passport Bulletin 93-2 (Jan. 8, 1993)). The Fifth Circuit has held that a nunc pro tunc order retroactively awarding the naturalized parent custody is not sufficient to show legal custody for purposes of derivation. See U.S. v. Esparza, 678 F.3d 389 (5th Cir. 2012). Although the CIS Policy Manual is silent on the subject, according to INS Interpretations 320.1(a)(6), in the absence of a state law or adjudication of a court dealing with the issue of legal custody, the parent having actual uncontested custody of the child is regarded as having the requisite legal custody for “derivation purposes,” provided the required “legal separation” of the parents has taken place. See Matter of M-, 3 I&N Dec. 850 (BIA 1950). Where the actual “parents” of the child were never lawfully married, there can be no legal separation. See INS Interpretations 320.1(a)(6) (citing In the Matter of H-, 3 I&N Dec. 742 (BIA 1949)). Thus, illegitimate children cannot derive citizenship through a father’s naturalization unless the father has legitimated the child, the child is in the father’s legal custody, and the mother was either a citizen (by birth or naturalization) or the mother has died. For more on this topic, see Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. 2005), and Nehme v. INS, 252 F.3d 415 (5th Cir. 2001).

Citizenship derived through the mother by a child who was illegitimate at birth will not be lost due to a subsequent legitimation. See 7 Gordon, Mailman, and Yale-Lohr, Immigration Law and Procedure, § 98.03[4](e) (ed. 2012).

The Administrative Appeals Office (AAO) has found that a Rabbinical Court decree awarding custody of a child to the child’s mother can establish that the

mother had legal custody of the child for purposes of INA § 321. See Matter of [redacted], A18 378 029 (AAO Sept. 27, 2010); see also 87 Interpreter Releases 2120 (Nov. 1, 2010). 10 See INS Interpretations 320.1(c). 11 See INS Interpretations 320.1(a)(6) (explaining that in the absence of a state law or adjudication of a court dealing with the issue of legal custody, the parent having actual uncontested custody of the child is regarded as having the requisite legal custody for “derivation purposes,” provided the required “legal separation” of the parents has taken place); Matter of M-, 3 I&N Dec. 850 (BIA 1950); see also Note 9, supra. The only way that an illegitimate child can derive citizenship through a father’s naturalization is if 1) the father legitimates the child, and 2) both parents naturalize (unless the mother is already a citizen, or the mother is dead). Under any other circumstances, an illegitimate child never derives from a father’s naturalization. In 2015, the BIA found that a person born abroad to unmarried parents in a jurisdiction that has eliminated all legal distinctions between children based on the marital status of their parents or has a residence or domicile in that jurisdiction is considered a legitimate “child” under INA § 101(c)(1). Matter of Cross, 26 I&N Dec. 485 (BIA 2015). The definition of a legitimate “child” under the Nationality Act of 1940, the law in effect from 1/13/41 to 12/23/52, is nearly identical to INA § 101(c)(1), and advocates should argue (when it would be beneficial) that this holding applies to the Nationality Act of 1940 as well. 12 Although both CIS and the State Department take the position that adopted children during this period could not derive citizenship, an argument can be made that children who were adopted before turning 16 and who were in the custody of the adopting parent(s) could derive citizenship. See Levy, U.S. Citizenship and Naturalization § 5:14 (ed. 2013–14). 13 Traditionally, the view has been that as long as all the conditions in this section are met before the child’s 18th birthday, the child derived citizenship regardless of the order in which the events occurred. See Department of State Passport Bulletin 96-18, New Interpretation of Claims to Citizenship Under Section 321(a) of the INA, (Nov. 6, 1996). The BIA cited this Passport Bulletin in In re Fuentes-Martínez, 21 I&N Dec. 893 (BIA 1997); Matter of Baires-Larios, 24 I&N Dec. 467 (BIA 2008); CIS, Dep’t of Homeland Sec., Adjudicators’ Field Manual, ch. 71, § 71.1(d)(2) (Feb. 2008) (“Since the order in which the requirements [of former § 321(a)] were satisfied was not stated in the statute, as long as the applicant meets the requirement of the statute before age 18 the applicant derives U.S. citizenship.”). But in Jordon v. Att’y Gen. of the U.S., 424 F.3d 320 (3d Cir. 2005), the Third Circuit disagreed, finding that where the separation occurred after the parent naturalized, the child did not derive citizenship. The BIA has repeatedly criticized and declined to follow the Third Circuit, arguing that it did not matter whether the naturalized parent obtained legal custody of the child before or after naturalization, so long as the statutory requirements were satisfied before the child turned 18 years old. See Matter of Douglas, 26 I&N Dec. 197 (BIA 2013); Matter of Baires-Larios, 24 I&N Dec. 467 (BIA 2008). Jordon is only in effect in the Third Circuit. Levy, U.S. Citizenship and Naturalization, § 5:3 (ed. 2013–14); but see Joseph v. Holder, 720 F.3d 228 (5th Cir. 2013) (deciding without discussion that when a mother withdrew divorce decree and sole custody order before her naturalization, the child did not derive citizenship because she was not legally separated at time of her naturalization). 14 See 7 FAM 1156.9 and 1156.10 for a general description of the law. 15 See Note 8, supra. 16 See Note 9, supra. 17 In order for an illegitimate child to derive citizenship through her mother s/he must not have been legitimated prior to obtaining derivation of citizenship. See INA § 321(a)(3), as amended by Pub. L. No. 95-417. However, if the father legitimated the child before derivation, then both parents must naturalize in order for the child to qualify unless one parent is a U.S. citizen or is deceased. See INA § 321(a)(1) as amended by Pub. L. No. 95-417. If legitimation occurs after the child has derived citizenship, the child remains a U.S. citizen even if the father did not naturalize. See 7 Gordon, Mailman, and Yale-Lohr, Immigration Law and Procedure, § 98.03[4](e). In 2015, the BIA held in Matter of Cross, 26 I&N Dec. 485 (BIA 2015) that although Jamaican law has eliminated any difference between the rights of children born in and out of wedlock, and thus all children born out of wedlock are considered “legitimate” for purposes of being a “child” in INA § 101(b)(1) and § (c)(1), “legitimation” for purposes of former INA § 321(a)(3) is defined differently. Because Jamaican law nonetheless provides a way to legitimate a child, a child will not be considered “legitimate” for former INA § 321(a)(3) absent an affirmative act by the parent. Id. It is unclear how this interpretation of former INA § 321(a)(3) will apply in jurisdictions that have eliminated all legal distinctions between children born in and out of wedlock where there is no way to legitimate the child. 18 See INS Interpretations 320.1(c). Because the CIS Policy Manual is silent on this subject, advocates should argue that this rule still applies. Note that the Fifth Circuit recently held that a child was “legitimated” under Mexican law when his father “acknowledged” him by placing his name on the child’s birth certificate. Iracheta v. Holder, 730 F.3d 419 (5th Cir. 2013) (reversing more than three decades of previous interpretation of Mexican requirements). In Tavares v. AG, 398 Fed. App’x 773 (3d Cir. 2010), the Third Circuit found that the applicant derived citizenship from his mother because he was not legitimated by his father under either Massachusetts or Cape Verde law. 19 The 1952–1978 law required the naturalization of the parent(s) prior to the child’s “16th birthday.” The 1978 law requiring the naturalization of the parent(s) prior to the “18th birthday” is retroactively applied to 12/24/52. See In re Fuentes-Martínez, 21 I&N Dec. 893 (BIA 1997) (citing Passport Bulletin 96-18). 20 There is currently a circuit split on whether INA § 321(a)(5)’s requirement that a child “reside permanently” in the United States means that the child must be a lawful permanent resident. The Ninth Circuit, the Eleventh Circuit, and the BIA have all held that this language requires the child to become a lawful permanent

resident before she turned 18 in order to obtain derivative citizenship. See Romero-Ruiz v. Mukasey, 538 F.3d 1057 (9th Cir. 2008); U.S. v. Forey-Quintero, 626 F.3d 1323 (11th Cir. 2010); Matter of Nwozuzu, 24 I&N Dec. 609 (BIA 2008). But the Second Circuit reversed Nwozuzu, holding that a child may derive citizenship if both parents naturalized while the child was still under 18 years old and was unmarried even if the child was not a lawful permanent resident. The Second Circuit found that “reside permanently” could include “something lesser.” Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013); see also United States v. Juarez, 672 F.3d 381 (5th Cir. 2012) (declining to interpret “reside permanently” but recognizing multiple interpretations). 21 See INA § 101(c)(1). 22 See Note 12, supra. In Martinez-Madera v. Holder, 559 F.3d 937 (9th Cir. 2009), the Ninth Circuit held that an individual could not derive U.S. citizenship from his stepfather by virtue of the state’s legitimation statute. 23 See 7 FAM 1156.11 (Foreign Affairs Manual) for a general description of the law. 24 “Death” includes “brain death” but not comas or persistent vegetative states. See Ayton v. Holder, 686 F.3d 331 (5th Cir. 2012). 25 See Note 8, supra. 26 See Note 9, supra. 27 See Notes 11, 17 supra. 28 See Note 19, supra. 29 See Note 20, supra. 30 See Note 21, supra. 31 Adopted children must be residing in the U.S. pursuant to a lawful admission for permanent residence at the time of the adoptive parent(s)’ naturalization. See Passport Bulletin 96-18. Thus, in derivation cases for adopted children, the sequence of events can be important. This is different than the practice in derivation cases for biological children. See Note 13, supra. 32 The 1978 amendment provided adopted children the opportunity to derive citizenship when they met the above criteria and were in the “custody” of the adoptive parent. In other amendments, Congress has specified whether the custody had to be legal, physical, or both. Given that Congress did not specify here whether legal custody or physical custody is required, advocates should argue that either should suffice. How “custody” is defined in this context will likely only come up where the adoptive parents are legally separated, or where the child has been living with someone other than the parents. 33 Between 10/5/78 and 12/29/81, adopted children could only derive citizenship if adoption occurred before the child turned 16. See 12 USCIS-PM H(4)(C) n.10; INS Interp. 320.1 (d)(2). 34 See Matter of Guzman-Gomez, 24 I&N Dec. 824 (BIA 2009) (holding that a child born outside the United States cannot obtain derivative citizenship by virtue of her relationship to a nonadoptive stepparent). 35 People born between 2/27/83 and 2/26/01 may derive citizenship by satisfying the requirements of either this row or the “10/5/78 to 2/26/01” row. Note that the law is not retroactive, so individuals who are 18 years or older on February 27, 2001 do not qualify for citizenship under this law. See, e.g., Mondaca-Vega v. Holder, 718 F.3d 1075 (9th Cir. 2013). 36 INA § 320 as amended by the Child Citizenship Act of 2000. 37 See CIS, Eligibility of Children Born out of Wedlock for Derivative Citizenship (Sept. 26, 2003). The memo mentions only that naturalized mothers can confer citizenship upon their not yet legitimated children born out of wedlock under INA § 320. ILRC assumes that mothers who are U.S. citizens by other means also can confer citizenship under INA § 320 to such children. 38 The text of INA § 320 as amended by the Child Citizenship Act of 2000 does not mention illegitimacy, but INA § 101(c)(1) excludes illegitimate children from the definition of “child,” unless legitimated by the father under either the law of the child’s domicile or the law of the father’s domicile. A person born abroad to unmarried parents in a jurisdiction that has eliminated all legal distinctions between children based on the marital status of their parents or has a residence or domicile in that jurisdiction is considered a legitimate “child” under INA § 101(c)(1). Matter of Cross, 26 I&N Dec. 485 (BIA 2015). In jurisdictions where legal distinctions remain, the legitimation requirement is a hurdle for two reasons. First, the legitimation must take place before the child turns 16. Once s/he turns 16, it is too late for the legitimation to count for § 320 citizenship purposes. Note that there is an argument, based on the fact that neither INA § 320 nor 8 CFR § 320.1 states the legitimation must occur before the 16th birthday, that such a legitimation could take place even between the 16th and 18th birthdays. This argument appears weak because of the definition of child found in INA §101(c), which applies to the citizenship and naturalization contexts. Second, the legitimation process can be complicated. It is important to note that the CIS Memo Eligibility of Children Born out of Wedlock for Derivative Citizenship, (Sept. 26, 2003), mentions only that naturalized mothers can confer citizenship upon their unlegitimated children born of wedlock under INA § 320. ILRC assumes that mothers who are U.S. citizens by other means such as birth in the U.S. also can confer citizenship under INA § 320 to such children. 39 INA § 320 as amended by the Child Citizenship Act of 2000. 40 INA § 320 as amended by the Child Citizenship Act of 2000.

41 INA § 320 as amended by the Child Citizenship Act of 2000. In Walker v. Holder, 589 F.3d 12 (1st Cir. 2009), the First Circuit held that an individual has not satisfied the requirement for “lawful admission for permanent residence” if that person obtained a green card through fraud or misrepresentation, even if the individual was a child when he first entered the United States with no control over the actions of his guardians. 42 INA § 320 as amended by the Child Citizenship Act of 2000. It is the ILRC’s interpretation that for purposes of the Child Citizenship Act of 2000, CIS will presume that a child who was born out of wedlock and has not been legitimated and whose mother has naturalized or is a U.S. citizen through any other means (i.e., birth in U.S, acquisition or derivation) would be considered to be in the legal custody of the mother for § 320 citizenship. See CIS, Eligibility of Children Born out of Wedlock for Derivative Citizenship (Sept. 23, 2003). Additionally, 8 CFR § 320.1 sets forth several different scenarios in which CIS presumes, absent evidence to the contrary, that the parent has the necessary legal custody to apply for § 320 citizenship for her child. First, CIS will presume, absent evidence to the contrary, that both parents have legal custody for purposes of § 320 citizenship where their biological child currently resides with them and the parents are married, living in marital union, and not separated. Second, CIS will presume, absent evidence to the contrary, that a parent has legal custody for purposes of § 320 citizenship where her biological child lives with her, and the child’s other parent is dead. Third, CIS will presume, absent evidence to the contrary, that a parent has legal custody for purposes of § 320 citizenship if the child was born out of wedlock, the parent lives with the child, and the parent has legitimated the child while the child was under 16 and according to the laws of the legitimating parent or child’s domicile. Fourth, where the child’s parents are legally separated or divorced and a court or other appropriate governmental entity has legally awarded that the parents have joint custody of the child, CIS will presume, absent evidence to the contrary, that such joint custody means that both parents have legal custody of the child for purposes of § 320 citizenship. Fifth, in a case where the parents of the child have divorced or legally separated, CIS will find that for the purposes of citizenship under INA § 320 a parent has legal custody of the child where there has been an award of primary care, control, and maintenance of a minor child to a parent by a court or other appropriate government agency pursuant to the laws of the state or county of residence. Sixth, the regulations state there may be other factual circumstances under which CIS will find that a U.S. citizen parent has legal custody for purposes of § 320 citizenship. Advocates and their clients should be creative in thinking of other ways to prove that CIS should determine that a U.S. citizen parent has legal custody if the parent-child relationship does not fit into one of the categories listed above. 43 INA § 320 as amended by the Child Citizenship Act of 2000 and INA § 101(b)(1).

11-1252-ag Morales-Santana v. Lynch

1

UNITED STATES COURT OF APPEALS 2

FOR THE SECOND CIRCUIT 3

4

August Term, 2012 5

6

(Argued: April 1, 2013 Final Submission: November 14, 2014 7

Decided: July 8, 2015) 8

9

Docket No. 11‐1252‐ag 10

11

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X 12

13

LUIS RAMON MORALES‐SANTANA, AKA LUIS MORALES, 14

15

Petitioner, 16

17

v. 18

19

LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, * 20

21

Respondent. 22

23

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X 24

25

Before: LOHIER, CARNEY, Circuit Judges, and RAKOFF, District Judge. ** 26

27

Petitioner Luis Ramon Morales‐Santana seeks review of a Board of 28

Immigration Appeals (“BIA”) decision denying his motion to reopen his 29

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General

Loretta E. Lynch is automatically substituted for former Attorney General

Eric H. Holder, Jr. as Respondent.

** The Honorable Jed S. Rakoff, of the United States District Court for the

Southern District of New York, sitting by designation.

2

removal proceedings to evaluate his claim of derivative citizenship. Under 1

the statute in effect when Morales‐Santana was born, Immigration and 2

Nationality Act of 1952, §§ 301(a)(7), 309(a), (c) (codified at 8 U.S.C. 3

§§ 1401(a)(7), 1409(a), (c) (1952)), Morales‐Santana’s father satisfied the 4

physical presence requirements for transmitting citizenship applicable to 5

unwed citizen mothers but not the more stringent requirements applicable to 6

unwed citizen fathers. On appeal, Morales‐Santana argues principally that 7

this statutory scheme violates the Fifth Amendment’s guarantee of equal 8

protection, and that the proper remedy is to extend to unwed fathers the 9

benefits unwed mothers receive under the statute. We agree and hold that 10

Morales‐Santana derived citizenship at birth through his father. We 11

accordingly REVERSE the BIA’s decision and REMAND for further 12

proceedings consistent with this opinion. 13

14

STEPHEN A. BROOME (Ellyde Roko and 15

Jacob Waldman, on the brief), Quinn 16

Emanuel Urquhart & Sullivan, LLP, 17

New York, NY, for Petitioner. 18

19

IMRAN R. ZAIDI, Attorney, Office of 20

Immigration Litigation, Civil Division, 21

U.S. Department of Justice, Washington, 22

DC (Stuart Delery, Acting Assistant 23

Attorney General, Stephen J. Flynn, 24

Assistant Director, Office of 25

Immigration Litigation, Civil Division, 26

Kathryn M. McKinney, Attorney, Office 27

of Immigration Litigation, Civil 28

Division, on the brief), for Respondent. 29

30

LOHIER, Circuit Judge: 31

Luis Ramon Morales‐Santana asks us to review a March 3, 2011 32

decision of the Board of Immigration Appeals (“BIA”) denying his motion to 33

3

reopen his removal proceedings relating to his claim of derivative 1

citizenship. Under the statute in effect when Morales‐Santana was born – the 2

Immigration and Nationality Act of 1952 (the “1952 Act”) – a child born 3

abroad to an unwed citizen mother and non‐citizen father has citizenship at 4

birth so long as the mother was present in the United States or one of its 5

outlying possessions for a continuous period of at least one year at some 6

point prior to the child’s birth. See 1952 Act, § 309(c), 66 Stat. 163, 238‐39 7

(codified at 8 U.S.C. § 1409(c) (1952)).1 By contrast, a child born abroad to an 8

unwed citizen father and non‐citizen mother has citizenship at birth only if 9

the father was present in the United States or one of its outlying possessions 10

prior to the child’s birth for a period or periods totaling at least ten years, 11

with at least five of those years occurring after the age of fourteen. See id. 12

§ 309(a) (codified at 8 U.S.C. § 1409(a) (1952)); see also id. § 301(a)(7) (codified 13

at 8 U.S.C. § 1401(a)(7) (1952)).2 Morales‐Santana’s father satisfied the 14

1 Unless otherwise noted, references to §§ 1401 and 1409 are to those sections

as they appear in the 1952 Act, and references to other statutory provisions

are to those sections as they appear in the current codification. 2 Section 1401(a)(7) provided:

The following shall be nationals and citizens of the United States at

birth: . . . a person born outside the geographical limits of the United

4

requirements for transmitting citizenship applicable to unwed mothers but 1

not the more stringent requirements applicable to unwed fathers. On appeal, 2

Morales‐Santana argues principally that this gender‐based difference violates 3

the Fifth Amendment’s guarantee of equal protection and that the proper 4

remedy is to extend to unwed fathers the benefits unwed mothers receive 5

under § 1409(c). We agree and hold that Morales‐Santana derived citizenship 6

at birth through his father. We accordingly REVERSE the BIA’s decision and 7

REMAND for further proceedings consistent with this opinion. 8

States and its outlying possessions of parents one of whom is an alien,

and the other a citizen of the United States who, prior to the birth of

such person, was physically present in the United States or its outlying

possessions for a period or periods totaling not less than ten years, at

least five of which were after attaining the age of fourteen years . . . .

Section 1409(a) provided that § 1401(a)(7) “shall apply as of the date of birth

to a child born out of wedlock on or after the effective date of this Act,”

provided that paternity is established “by legitimation” before the child turns

21. Section 1409(c) provided:

Notwithstanding the provision of subsection (a) of this section, a

person born, on or after the effective date of this Act, outside the United

States and out of wedlock shall be held to have acquired at birth the

nationality status of his mother, if the mother had the nationality of the

United States at the time of such person’s birth, and if the mother had

previously been physically present in the United States or one of its

outlying possessions for a continuous period of one year.

5

BACKGROUND 1

I. Facts 2

The following undisputed facts are drawn from the record on appeal. 3

Morales‐Santana’s father, Jose Dolores Morales, was born in Puerto Rico on 4

March 19, 1900 and acquired United States citizenship in 1917 pursuant to the 5

Jones Act. See Jones Act of Puerto Rico, ch. 145, 39 Stat. 951 (codified at 8 6

U.S.C. § 1402 (1917)). He was physically present in Puerto Rico until February 7

27, 1919, 20 days before his nineteenth birthday, when he left Puerto Rico to 8

work in the Dominican Republic for the South Porto Rico Sugar Company. 9

In 1962 Morales‐Santana was born in the Dominican Republic to his 10

father and his Dominican mother. Morales‐Santana was what is statutorily 11

described as “legitimat[ed]” by his father upon his parents’ marriage in 1970 12

and admitted to the United States as a lawful permanent resident in 1975. 13

8 U.S.C. § 1409(a). Morales‐Santana’s father died in 1976. 14

II. Statutory Framework 15

Unlike citizenship by naturalization, derivative citizenship exists as of a 16

child’s birth or not at all. See 8 U.S.C. § 1409(a), (c); cf. id. § 1101(a)(23). The 17

law in effect at the time of birth governs whether a child obtained derivative 18

6

citizenship as of his or her birth. See Ashton v. Gonzales, 431 F.3d 95, 97 (2d 1

Cir. 2005). Accordingly, the 1952 Act provides the statutory framework 2

applicable to Morales‐Santana’s nationality claim. 3

As noted, the 1952 Act limits the ability of an unwed citizen father to 4

confer citizenship on his child born abroad – where the child’s mother is not a 5

citizen at the time of the child’s birth – more stringently than it limits the 6

ability of a similarly situated unwed citizen mother to do the same. Compare 7

8 U.S.C. § 1401(a)(7), with id. § 1409(c).3 We note that this difference in 8

treatment of unwed citizen fathers and unwed citizen mothers, though 9

diminished, persists in the current statute. Compare 8 U.S.C. § 1409(a) (2012) 10

(applying to unwed citizen fathers § 1401(g), which requires five years of 11

physical presence, two of which must be after age fourteen), with id. § 1409(c) 12

(maintaining the 1952 Act’s conferral of derivative citizenship based on an 13

3 In addition to satisfying the requirements of § 1401(a)(7), the father must

establish his paternity through legitimation of the child before the child turns

21. See 8 U.S.C. § 1409(a). As both parties agree, Morales‐Santana’s father

legitimated his son in 1970. Morales‐Santana does not contest the statute’s

legitimation requirement, and that requirement is not at issue on appeal. See

Nguyen v. INS, 533 U.S. 53 (2001) (upholding as constitutional the similar

legitimation requirement found in the current version of the statute, 8 U.S.C.

§ 1409(a)(4) (2000)).

7

unwed mother’s continuous physical presence for one year at any time prior 1

to the child’s birth). 2

III. Procedural History 3

In 2000 Morales‐Santana was placed in removal proceedings after 4

having been convicted of various felonies. He applied for withholding of 5

removal on the basis of derivative citizenship obtained through his father. An 6

immigration judge denied the application. In 2010 Morales‐Santana filed a 7

motion to reopen based on a violation of equal protection and newly obtained 8

evidence relating to his father. The BIA rejected Morales‐Santana’s 9

arguments for derivative citizenship and denied his motion to reopen. 10

DISCUSSION 11

Morales‐Santana makes four arguments for derivative citizenship: 12

(1) that his father’s physical absence from the United States during the 20 13

days directly prior to his father’s nineteenth birthday constituted a de 14

minimis “gap” in physical presence, and that such gaps should not count 15

against a finding of physical presence for purposes of § 1401(a)(7); (2) that the 16

South Porto Rico Sugar Company, which employed his father after his father 17

moved to the Dominican Republic, was a multi‐national United States‐owned 18

8

company and therefore effectively part of the United States government or an 1

international organization as defined in 22 U.S.C. § 288, see 1966 Act to 2

Amend the Immigration and Nationality Act (the “1966 Act”), 80 Stat. 1322 3

(codified at 8 U.S.C. § 1401(a)(7) (1966)) (counting periods of employment for 4

certain organizations toward the statute’s physical presence requirements); (3) 5

that at the time his father moved to the Dominican Republic it was an 6

“outlying possession” of the United States; and (4) as noted, that the different 7

physical presence requirements applicable to unwed fathers and unwed 8

mothers under the 1952 Act violate equal protection. 9

Consistent with our obligation to avoid constitutional questions if 10

possible, we first address Morales‐Santana’s three statutory arguments for 11

derivative citizenship. See Escambia Cnty., Fla. v. McMillan, 466 U.S. 48, 51 12

(1984) (per curiam). 13

As to both his statutory and constitutional arguments, we review de 14

novo the question of Morales‐Santana’s derivative citizenship. See Phong 15

Thanh Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir. 2007). “If the petitioner 16

claims to be a national of the United States and the court of appeals finds 17

from the pleadings and affidavits that no genuine issue of material fact about 18

9

the petitioner’s nationality is presented, the court shall decide the nationality 1

claim.” 8 U.S.C. § 1252(b)(5)(A). No material facts are disputed. 2

I. Statutory Arguments 3

Morales‐Santana contends that his father’s absence from the United 4

States during the 20 days prior to his father’s nineteenth birthday constitutes 5

a de minimis “gap” in his father’s physical presence and that such gaps 6

should not be held against someone who claims to have satisfied the 1952 7

Act’s physical presence requirement. In support, Morales‐Santana points to 8

continuous physical presence requirements under the immigration laws that 9

explicitly excuse de minimis absences. See, e.g., id. § 1229b(b)(1)(A), (d)(2) 10

(2012) (absences of 90 continuous days or fewer do not break “continuity” of 11

physical presence for purposes of cancellation of removal for a lawful 12

permanent resident.); id. §§ 1255(l)(3), 1255a(a)(3)(B). By its plain terms, 13

§ 1401(a)(7) had no similar exception. In any event, because Morales‐14

Santana’s father left the United States and its outlying possessions 20 days 15

prior to his nineteenth birthday and never returned, there was no “gap” in his 16

father’s physical presence that bridged two periods of physical presence. So 17

even if we recognized an exception to the physical presence requirement in 18

10

§ 1401 for de minimis “gaps,” we would reject Morales‐Santana’s claim on 1

this basis. 2

Relying on the 1966 Act, Morales‐Santana next argues that his father’s 3

employment with the South Porto Rico Sugar Company in the Dominican 4

Republic immediately after leaving Puerto Rico satisfied the statute’s physical 5

presence requirement by effectively continuing his physical presence through 6

the requisite period. It is true that the 1966 Act provided that employment 7

with the United States Government or with an international organization, as 8

defined in 22 U.S.C. § 288, satisfied the physical presence requirement. See 9

8 U.S.C. § 1401(a)(7) (1966). But Morales‐Santana’s argument lacks merit 10

because his father’s employment with the South Porto Rico Sugar Company, a 11

multinational company, did not constitute employment with the United 12

States Government. See Drozd v. INS, 155 F.3d 81, 86 (2d Cir. 1998). Nor did 13

it constitute employment with an international organization as defined in 14

22 U.S.C. § 288, since the South Porto Rico Sugar Company was neither “a 15

public international organization in which the United States participates 16

pursuant to any treaty or under the authority of any Act of Congress 17

11

authorizing such participation or making an appropriation for such 1

participation,” nor “designated by the President” as such. 22 U.S.C. § 288. 2

As his final statutory argument, Morales‐Santana contends that the 3

Dominican Republic was an “outlying possession” of the United States for 4

purposes of the 1952 Act when Morales‐Santana’s father was there in 1919. 5

Two factors convince us that Congress did not intend to include the 6

Dominican Republic within the scope of the term “outlying possession” in 7

§ 1401.4 8

First, there is no treaty or lease pursuant to which the Dominican 9

Republic was acquired. This stands in contrast to the Philippines, Guam, 10

Puerto Rico, and the U.S. Virgin Islands, all of which were acquired by the 11

United States by treaty, see Treaty of Peace between the United States and the 12

Kingdom of Spain, 30 Stat. 1754 (1899); Convention between the United States 13

and Denmark, 39 Stat. 1706 (1917), and all of which were outlying possessions 14

when the United States exercised sovereignty over them, see Matter of V‐, 9 I. 15

4 Congress did not define “outlying possessions” until the Nationality Act of

1940, which defined “outlying possessions” as “all territory . . . over which

the United States exercises rights of sovereignty, except the Canal Zone.” See

§ 101(e), 54 Stat. 1137 (codified at 8 U.S.C. § 501(e) (1940)). The 1952 Act

defined the term to include only “American Samoa and Swains Island.”

101(a)(29), 66 Stat. 170 (codified at 8 U.S.C. § 1101(a)(29) (1952)).

12

& N. Dec. 558, 561 (1962); Matter of Y‐‐‐‐‐, 7 I. & N. Dec. 667, 668 (1958). The 1

case of Guantanamo Bay, Cuba is a little different in that it involves both a 2

lease and a treaty, but it yields the same result vis‐à‐vis the Dominican 3

Republic. In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court 4

determined that the “complete jurisdiction and control” by the United States 5

over Guantanamo Bay constituted “de facto” sovereignty over it. Id. at 753‐55 6

(quotation marks omitted). The Court added, though, that in a 1903 Lease 7

Agreement between Cuba and the United States, the former granted the latter 8

“complete jurisdiction and control” over Guantanamo Bay and that “[u]nder 9

the terms of [a] 1934 [t]reaty, . . . Cuba effectively has no rights as a sovereign 10

until the parties agree to modification of the 1903 Lease Agreement or the 11

United States abandons” Guantanamo Bay. Id. at 753. By contrast, there is no 12

lease or treaty that conferred to the United States de facto or de jure 13

sovereignty over the Dominican Republic. 14

Second, we acknowledge the historical fact that the United States 15

exercised significant control during its military occupation of the Dominican 16

Republic from 1916 to 1924. See Ingenio Porvenir C. Por A. v. United States, 17

70 Ct. Cl. 735, 738 (1930). But that control did not extinguish the sovereignty 18

13

of the Dominican Republic. Indeed, the Proclamation of the Military 1

Occupation of Santo Domingo by the United States specifically declared that 2

the purpose of the temporary military occupation was “to give aid to [the 3

Dominican Republic] in returning to a condition of internal order” without 4

“destroying the sovereignty of” the Dominican Republic. 11 Supp. Am. J. 5

Int’l L. 94, 94‐96 (1917) (Nov. 29, 1916 Proclamation); see also Bruce J. Calder, 6

The Impact of Intervention: The Dominican Republic During the U.S. 7

Occupation of 1916‐1924 xxvii, 17, 205 (2d ed. 2006). 8

Having rejected Morales‐Santana’s statutory arguments for derivative 9

citizenship, we now consider his constitutional equal protection argument. 10

II. Equal Protection 11

Morales‐Santana argues principally that the 1952 Act’s treatment of 12

derivative citizenship conferral rights violates the Fifth Amendment’s 13

guarantee of equal protection.5 As we have explained, under the 1952 Act, an 14

5 Morales‐Santana has standing to assert this equal protection claim on behalf

of his father since Morales‐Santana alleges that his father suffered an injury in

fact, that his father bears a close relation to him, and that his father’s ability to

assert his own interests is hindered because his father is deceased. See

Campbell v. Louisiana, 523 U.S. 392, 397 (1998) (citing Powers v. Ohio, 499

U.S. 400, 411 (1991)); see also Miller v. Albright, 523 U.S. 420, 433 (1998)

14

unwed citizen mother confers her citizenship on her child (born abroad to a 1

non‐citizen biological father) so long as she has satisfied the one‐year 2

continuous presence requirement prior to the child’s birth. The single year of 3

presence by the mother can occur at any time prior to the child’s birth – 4

including, for example, from the mother’s first birthday until her second 5

birthday. An unwed citizen father, by contrast, faces much more stringent 6

requirements under 8 U.S.C. §1409(a), which incorporates § 1401(a)(7). He is 7

prevented from transmitting his citizenship (to his child born abroad to a 8

non‐citizen mother) unless he was physically present in the United States or 9

an outlying possession prior to the child’s birth for a total of at least ten 10

years.6 Because five of those years must follow the father’s fourteenth 11

birthday, an unwed citizen father cannot transmit his citizenship to his child 12

born abroad to a non‐citizen mother before the father’s nineteenth birthday. 13

Eighteen‐year‐old citizen fathers and their children are out of luck. 14

(opinion of Stevens, J.); id. at 449‐50 (O’Connor, J., concurring); id. at 454 n.1

(Scalia, J., concurring); id. at 473 (Breyer, J., dissenting).

6 As noted, the father must also satisfy a legitimation requirement. See 8

U.S.C. § 1409(a).

15

As both parties agree, had Morales‐Santana’s mother, rather than his 1

father, been a citizen continuously present in Puerto Rico until 20 days prior 2

to her nineteenth birthday, she would have satisfied the requirements to 3

confer derivative citizenship on her child. It is this gender‐based difference in 4

treatment that Morales‐Santana claims violated his father’s right to equal 5

protection. 6

The Government asserts that the difference is justified by two interests: 7

(1) ensuring a sufficient connection between citizen children and the United 8

States, and (2) avoiding statelessness. In what follows, we apply intermediate 9

scrutiny to assess these asserted interests, and we conclude that neither 10

interest is advanced by the statute’s gender‐based physical presence 11

requirements. After determining that these physical presence requirements 12

violate equal protection, we apply the statute’s severance clause and 13

determine that Morales‐Santana, under the statute stripped of its 14

constitutional defect, has citizenship as of his birth. 15

A. Level of Scrutiny 16

We apply intermediate, “heightened” scrutiny to laws that discriminate 17

on the basis of gender. United States v. Virginia, 518 U.S. 515, 531‐33 (1996). 18

16

Under intermediate scrutiny, the government classification must serve actual 1

and important governmental objectives, and the discriminatory means 2

employed must be substantially related to the achievement of those 3

objectives. Nguyen v. INS, 533 U.S. 53, 68 (2001); Virginia, 518 U.S. at 533. 4

Furthermore, the justification for the challenged classification “must be 5

genuine, not hypothesized or invented post hoc in response to litigation. And 6

it must not rely on overbroad generalizations about the different talents, 7

capacities, or preferences of males and females.ʺ Virginia, 518 U.S. at 533. 8

In urging us to apply rational basis scrutiny instead, the Government 9

relies on Fiallo v. Bell, 430 U.S. 787 (1977). In Fiallo, the Supreme Court 10

applied rational basis scrutiny to a section of the 1952 Act that gave special 11

preference for admission into the United States to non‐citizens born out of 12

wedlock seeking entry by virtue of a relationship with their citizen mothers, 13

but not to similarly situated non‐citizens seeking entry by virtue of a 14

relationship with their citizen fathers. See id. at 798. The Court reasoned that 15

rational basis scrutiny was warranted because “over no conceivable subject is 16

the legislative power of Congress more complete than it is over the admission 17

of aliens,” and “[o]ur cases have long recognized the power to expel or 18

17

exclude aliens as a fundamental sovereign attribute exercised by the 1

Government’s political departments.” Id. at 792 (emphases added) (quotation 2

marks omitted); see also Kleindienst v. Mandel, 408 U.S. 753, 766 (1972) 3

(Congress has “plenary power” to make rules for the admission and exclusion 4

of non‐citizens. (quotation marks omitted)). 5

But Fiallo is distinguishable. In Fiallo, the children’s alienage 6

implicated Congress’s “exceptionally broad power” to admit or remove non‐7

citizens. Fiallo, 430 U.S. at 794. Here, by contrast, there is no similar issue of 8

alienage that would trigger special deference. Because Morales‐Santana 9

instead claims pre‐existing citizenship at birth, his challenge does not 10

implicate Congress’s “power to admit or exclude foreigners,” id. at 795 n.6, 11

and therefore is not governed by Fiallo. 12

Our view of Fiallo’s limited scope is grounded in Supreme Court and 13

circuit caselaw. As an initial matter, we note that the Supreme Court has 14

never applied the deferential Fiallo standard to issues of gender 15

discrimination under § 1409, despite being asked to do so on at least three 16

occasions. See Miller v. Albright, 523 U.S. 420 (1998) (declining to apply 17

Fiallo); Nguyen v. INS, 533 U.S. 53 (2001) (applying heightened scrutiny); 18

18

United States v. Flores‐Villar, 131 S. Ct. 2312 (2011) (per curiam) (affirming 1

without opinion by divided 4‐4 vote). Justice Stevens’ opinion in Miller 2

succinctly described Fiallo’s limitation: “It is of significance that the 3

petitioner in this case, unlike the petitioners in Fiallo, . . . is not challenging 4

the denial of an application for special [immigration] status. She is contesting 5

the Governmentʹs refusal to . . . treat her as a citizen. If she were to prevail, 6

the judgment . . . would confirm her pre‐existing citizenship.” Miller, 523 U.S. 7

at 432 (plurality opinion); see also id. at 429 (“Fiallo . . . involved the claims of 8

. . . aliens to a special immigration preference, whereas here petitioner claims 9

that she is, and for years has been, an American citizen.”). 10

Although no opinion in Miller received a majority of votes, we 11

observed in Lake v. Reno that “seven justices in Miller would have applied 12

heightened scrutiny . . . [to INA] section 309(a).” 226 F.3d 141, 148 (2d Cir. 13

2000), vacated sub nom. Ashcroft v. Lake, 533 U.S. 913 (2001) (citing Nguyen), 14

abrogated on other grounds by Lake v. Ashcroft, 43 F. Appʹx 417, 418 (2d Cir. 15

2002). Later, in Lewis v. Thompson, we explained Lake’s holding in a way 16

that makes it clear that heightened scrutiny, rather than Fiallo’s more 17

deferential standard of review, should apply to Morales‐Santana’s claim: 18

19

“[W]e have already held in Lake, drawing an inference from the various 1

opinions of the Justices in Miller, that citizen claimants with an equal 2

protection claim deserving of heightened scrutiny do not lose that favorable 3

form of review simply because the case arises in the context of immigration.” 4

252 F.3d 567, 591 (2d Cir. 2001); see also id. at 590 (“As we recognized in Lake, 5

Fiallo itself made clear that the reduced threshold of justification for 6

governmental action that applied to immigrants did not apply to citizens.” 7

(emphasis added) (quotation marks omitted)). Our sister circuits that have 8

considered Fiallo’s application to claims similar to Morales‐Santana’s are in 9

accord. See Nguyen v. INS, 208 F.3d 528, 535 (5th Cir. 2000) (noting that “the 10

statute in Fiallo dealt with the claims of aliens for special immigration 11

preferences for aliens, whereas the petitioner’s claim in this case is that he is a 12

citizen”), aff’d, 533 U.S. 53 (2001); Breyer v. Meissner, 214 F.3d 416, 425 (3d 13

Cir. 2000) (applying heightened scrutiny to § 1993 of the Revised Statutes of 14

1874, a predecessor to § 1409, because it “created a gender classification with 15

respect to [petitioner’s] mother’s ability to pass her citizenship to her foreign‐16

born child at his birth”); United States v. Ahumada‐Aguilar, 189 F.3d 1121, 17

1126 (9th Cir. 1999) (applying Miller to “f[i]nd § 1409(a)(4) unconstitutional by 18

20

applying heightened scrutiny”), vacated, 533 U.S. 913 (2001) (citing Nguyen), 1

abrogated on other grounds by 295 F.3d 943 (9th Cir. 2002); cf. United States 2

v. Flores‐Villar, 536 F.3d 990, 996 n.2 (9th Cir. 2008) (“Like the Supreme Court 3

in Nguyen, we will assume that intermediate scrutiny applies.”), aff’d by an 4

equally divided Court, 131 S. Ct. 2312. 5

For these reasons, we conclude that the gender‐based scheme in §§ 1401 6

and 1409 can be upheld only if the Government shows that it is substantially 7

related to an actual and important governmental objective. See Virginia, 518 8

U.S. at 531, 533, 535‐36; Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 9

(1982). In assessing the validity of the gender‐based classification, moreover, 10

we consider the existence of gender‐neutral alternatives to the classification. 11

See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151 (1980); Orr v. 12

Orr, 440 U.S. 268, 281 (1979); Weinberger v. Wiesenfeld, 420 U.S. 636, 653 13

(1975). 14

B. Governmental Interests and Tailoring 15

Having determined that intermediate scrutiny applies, we examine the 16

two interests that the Government claims support the statute’s gender‐based 17

distinction. 18

21

1. Ensuring a Sufficient Connection Between the Child 1

and the United States 2

3

The Government asserts that Congress passed the 1952 Act’s physical 4

presence requirements in order to “ensur[e] that foreign‐born children of 5

parents of different nationalities have a sufficient connection to the United 6

States to warrant citizenship.” Respondent’s Br. 38‐39. As both parties agree, 7

this interest is important, and Congress actually had it in mind when 8

requiring some period of physical presence before a citizen parent could 9

confer citizenship on his or her child born abroad. See Petitioner’s Br. 35 n.17 10

(citing Weedin v. Chin Bow, 274 U.S. 657, 666‐67 (1927)). 11

The Government invokes this important interest but fails to justify the 12

1952 Act’s different treatment of mothers and fathers by reference to it. It 13

offers no reason, and we see no reason, that unwed fathers need more time 14

than unwed mothers in the United States prior to their child’s birth in order to 15

assimilate the values that the statute seeks to ensure are passed on to citizen 16

children born abroad. 17

We recognize that our determination conflicts with the decision of the 18

Ninth Circuit in Flores‐Villar, 536 F.3d 990, which addressed the same 19

statutory provisions and discussed the same governmental interest in 20

22

ensuring a connection between child and country. The Ninth Circuit 1

concluded that in addition to preventing or reducing statelessness – an 2

objective we address below – “[t]he residence differential . . . furthers the 3

objective of developing a tie between the child, his or her father, and this 4

country.” Flores‐Villar, 536 F.3d at 997. The Ninth Circuit provided no 5

explanation for its conclusion, and the Government provides none here. 6

Instead, the Government relies on Nguyen to explain why the different 7

physical presence requirements for unwed men and women reflect a concern 8

with ensuring an adequate connection between the child and the United 9

States. We are not persuaded. In Nguyen, the Court upheld the Immigration 10

and Nationality Act’s requirement that a citizen father seeking to confer 11

derivative citizenship on his foreign‐born child take the affirmative step of 12

either legitimating the child, declaring paternity under oath, or obtaining a 13

court order of paternity.7 See Nguyen, 533 U.S. at 62; 8 U.S.C. § 1409(a)(4) 14

(2000). The Nguyen Court determined that two interests supported the 15

legitimation requirement for citizen fathers of children born abroad. 16

7 For brevity, we refer to these as constituting a “legitimation requirement,”

though legitimation is just one of three ways of satisfying the statutory

provision.

23

The first interest, “assuring that a biological parent‐child relationship 1

exists,” Nguyen, 533 U.S. at 62; see Miller, 523 U.S. at 435‐36, is irrelevant to 2

the 1952 Act’s physical presence requirements because derivative citizenship 3

separately requires unwed citizen fathers to have legitimated their foreign‐4

born children. Here, Morales‐Santana’s father established his biological tie to 5

Morales‐Santana by legitimating him. His physical presence in Puerto Rico 6

for ten years as opposed to one year prior to Morales‐Santana’s birth would 7

have provided no additional assurance that a biological tie existed. 8

The Nguyen Court identified a second interest in ensuring “that the 9

child and the citizen parent have some demonstrated opportunity or potential 10

to develop” a “real, meaningful relationship.” Nguyen, 533 U.S. at 64‐65. The 11

Court explained that a biological mother, by virtue of giving birth to the child, 12

“knows that the child is in being and is hers,” but that an unwed biological 13

father might in some cases not even “know that a child was conceived, nor is 14

it always clear that even the mother will be sure of the father’s identity.” Id. 15

at 65. Rather than requiring a case‐by‐case analysis of whether a father or a 16

mother has a “real, meaningful relationship” with a child born abroad, 17

“Congress enacted an easily administered scheme to promote the different 18

24

but still substantial interest of ensuring at least an opportunity for a parent‐1

child relationship to develop.” Id. at 69. This interest in ensuring the 2

“opportunity for a real, meaningful relationship” between parent and child is 3

likewise not relevant to the 1952 Act’s physical presence requirements. By 4

legitimating his son, Morales‐Santana’s father took the affirmative step of 5

demonstrating that an opportunity for a meaningful relationship existed. 6

And again, requiring that Morales‐Santana’s father be physically present in 7

Puerto Rico prior to Morales‐Santana’s birth for ten years instead of one year 8

would have done nothing to further ensure that an opportunity for such a 9

relationship existed. 10

So we agree that unwed mothers and fathers are not similarly situated 11

with respect to the two types of parent‐to‐child “ties” justifying the 12

legitimation requirement at issue in Nguyen. But unwed mothers and fathers 13

are similarly situated with respect to how long they should be present in the 14

United States or an outlying possession prior to the child’s birth in order to 15

have assimilated citizenship‐related values to transmit to the child. 16

Therefore, the statute’s gender‐based distinction is not substantially related to 17

25

the goal of ensuring a sufficient connection between citizen children and the 1

United States. 2

2. Preventing Statelessness 3

Having concluded that the Government’s interest in establishing a 4

connection between the foreign‐born child and the United States does not 5

explain or justify the gender‐based distinction in the 1952 Act’s physical 6

presence requirements, we now turn to the Government’s other asserted 7

interest. The Government argues that Congress enacted different physical 8

presence requirements in § 1409(a) (incorporating § 1401(a)(7)) and § 1409(c) 9

to reduce the level of statelessness among newborns. For example, a child 10

born out of wedlock abroad may be stateless if he is born inside a country that 11

does not confer citizenship based on place of birth and neither of the child’s 12

parents conferred derivative citizenship on him. 13

The avoidance of statelessness is clearly an important governmental 14

interest. See Kennedy v. Mendoza‐Martinez, 372 U.S. 144, 160‐61 (1963); Trop 15

v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion). Contrary to the 16

Government’s claim, though, avoidance of statelessness does not appear to 17

have been Congress’s actual purpose in establishing the physical presence 18

26

requirements in the 1952 Act, see Virginia, 518 U.S. at 533, and in any event 1

the gender‐based distinctions in the 1952 Act’s physical presence 2

requirements are not substantially related to that objective. 3

a. Actual Purpose 4

Some historical background is useful to understand Congress’s purpose 5

in establishing the 1952 Act’s gender‐based physical presence requirements. 6

Until 1940, a citizen father whose child was born abroad transmitted his 7

citizenship to that child if the father had resided in the United States for any 8

period of time prior to the child’s birth. See Rogers v. Bellei, 401 U.S. 815, 823‐9

25 (1971) (discussing the Act of March 26, 1790, 1 Stat. 103, and successive 10

statutes); Act of May 24, 1934, ch. 344, 48 Stat. 797; Nationality Act of 1940 (the 11

“1940 Act”), ch. 876, § 201(g), 54 Stat. 1137, 1139. Consistent with common 12

law notions of coverture, and with the notion that the husband determined 13

the political and cultural character of his dependents (wife and children 14

included), prior to 1934 married women had no statutory right to confer their 15

own citizenship.8 See Brief [of] Amici Curiae of Professors of History, 16

8 In 1934 Congress granted citizen mothers, whether married or unmarried,

the right to confer citizenship on their children born abroad if the mother

27

Political Science, and Law in Support of Petitioner at 9, Flores‐Villar v. United 1

States, 131 S. Ct. 2312 (2010), 2010 WL 2602009; Candice Lewis Bredbenner, A 2

Nationality of Her Own: Women, Marriage, and the Law of Citizenship 84 3

(1998). But for unmarried citizen mothers, the State Department’s practice 4

since at least 1912 was to grant citizenship to their foreign‐born children on 5

the theory that an unmarried mother “stands in the place of the father” and is 6

in any event “bound to maintain [the child] as its natural guardian.” To 7

Revise and Codify the Nationality Laws of the United States Into a 8

Comprehensive Nationality Code: Hearing Before the H. Comm. on 9

Immigration and Naturalization, 76th Cong. 431 (1945) (quotation marks 10

omitted). 11

In 1940 Congress for the first time explicitly addressed the situation of 12

children born out of wedlock. It enacted Section 205 of the 1940 Act, 54 Stat. 13

at 1139‐40, which provided that citizen fathers and married citizen mothers 14

could transmit citizenship to their child born abroad only after satisfying an 15

age‐calibrated ten‐year physical presence requirement, but that unmarried 16

citizen mothers could confer citizenship if they had resided in the United 17

satisfied the same minimal residency requirement applicable to citizen

fathers. See Act of May 24, 1934, ch. 344, § 1, 48 Stat. 797.

28

States at any point prior to the child’s birth. The 1952 Act retained this basic 1

statutory structure, though it imposed a somewhat more stringent 2

requirement that unmarried mothers have been physically present in the 3

United States for a continuous period of one year in order to confer 4

citizenship. 8 U.S.C. § 1409(c). 5

Neither the congressional hearings nor the relevant congressional 6

reports concerning the 1940 Act contain any reference to the problem of 7

statelessness for children born abroad.9 The congressional hearings 8

concerning the 1952 Act are similarly silent about statelessness as a driving 9

concern.10 Notwithstanding the absence of relevant discussion concerning the 10

9 Cf. Kristin A. Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the

Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2205 n.283

(2014) (“[I]n the many hundreds of pre‐1940 administrative memos I have

read that defend or explain recognition of the nonmarital foreign‐born

children of American mothers as citizens, I have identified exactly one memo

by a U.S. official that mentions the risk of statelessness for the foreign‐born

nonmarital children of American mothers as a concern.” (citing

Memorandum from Green Hackworth, Office of the Solicitor, U.S. Dep’t of

State, to Richard Flournoy, Office of the Solicitor, U.S. Dep’t of State (Aug. 14,

1928) (on file with National Archives and Records Administration, Relevant

Group 59, Central Decimal File 131))).

10 The Government does cite one congressional report in which statelessness

was mentioned in conjunction with the 1952 Act. A Senate Report dated

January 29, 1952 mentions the problem of statelessness in explaining why the

29

problem of statelessness for children born abroad in the legislative history, 1

the Government points to the Executive Branch’s explanatory comments to 2

Section 204 of the proposed nationality code that Congress would ultimately 3

enact as the 1940 Act. See 76th Cong. 431. These comments refer to a 1935 4

law review article entitled A Comparative Study of Laws Relating to 5

Nationality at Birth and to Loss of Nationality, 29 Am. J. Int’l L. 248 (1935), by 6

Durward V. Sandifer.11 According to the article, in 1935 approximately thirty 7

1952 Act eliminated a provision in the 1940 Act that had conditioned a citizen

mother’s ability to transmit nationality to her child on the father’s failure to

legitimate the child prior to the child’s eighteenth birthday. See 1940 Act,

§ 205, 54 Stat. at 1140 (“In the absence of . . . legitimation or adjudication

[during the child’s minority], . . . the child” born abroad to an unmarried

citizen mother “shall be held to have acquired at birth [the mother’s]

nationality status.” (emphases added)). The 1952 Act eliminated this

provision, allowing the mother to transmit citizenship independent of the

father’s actions. S. Rep. No. 1137, at 39 (1952) (“This provision establishing

the child’s nationality as that of the [citizen] mother regardless of legitimation

or establishment of paternity is new. It insures that the child shall have a

nationality at birth.” (emphasis added)).

Although the Report reflects congressional awareness of statelessness

as a problem, it does not purport to justify the gender‐based distinctions in

the physical presence provisions at issue in this appeal.

11 Contrary to the Government’s assertion, the Sandifer article does not

indicate that it was “conducted by the State Department.” Rather, Sandifer,

who worked at the State Department at the time he wrote the article, explains

at the outset that he decided to write it at the suggestion of a colleague, not

30

countries had statutes assigning children born out of wedlock the citizenship 1

of their mother. Id. at 258. From the comments and the article, the 2

Government urges us to infer that “Congress was aware” there existed “a 3

substantial risk that a child born to an unwed U.S. citizen mother in a country 4

employing [laws determining citizenship based on lineage, rather than place 5

of birth] would be stateless at birth unless the mother could pass her 6

citizenship to her child,” and that this risk was “unique” to the children of 7

unwed citizen mothers. Respondent’s May 8, 2013 Supp. Br. 2, 6‐7.12 8

Based on our review of the Executive Branch’s explanatory comments 9

and the Sandifer article, we decline the Government’s invitation. The 10

explanatory comments do not mention statelessness and do not refer to the 11

Sandifer article’s discussion of statelessness. In any event, the Sandifer article 12

itself does not support the Government’s argument that the children of 13

pursuant to an official directive. See Sandifer, Comparative Study, 29 Am. J.

Int’l L. at 248.

12 In response to our order requesting supplemental briefing on the issue, the

Government was unable to furnish any other evidence that Congress enacted

or the Executive encouraged the 1940 Act’s or the 1952 Act’s gender‐based

physical presence requirements due to concerns about statelessness.

31

unwed citizen mothers faced a greater risk of statelessness than the children 1

of unwed citizen fathers. 2

While the Executive Branch’s comments ignore the problem of 3

statelessness, they arguably reflect gender‐based generalizations concerning 4

who would care for and be associated with a child born out of wedlock. 13 5

Other contemporary administrative memoranda similarly ignore the risk of 6

statelessness for children born out of wedlock abroad to citizen mothers.14 7

In sum, we discern no evidence (1) that Congress enacted the 1952 Act’s 8

gender‐based physical presence requirements out of a concern for 9

statelessness, (2) that the problem of statelessness was in fact greater for 10

13 The comments reflect the view that the mother “is bound to maintain”

“custody and control of . . . a child [born out of wedlock] as against the

putative father” as its “natural guardian” and that “[t]he mother, as guardian

by nurture, has the right to the custody and control of her bastard child.”

76th Cong. 431 (quotation marks omitted); see also Collins, 123 Yale L.J. at

2205 (“[T]he historical record reveals that the pronounced gender asymmetry

of the [1940] Nationality Act’s treatment of nonmarital foreign‐born children

of American mothers and fathers was shaped by contemporary maternalist

norms regarding the mother’s relationship with her nonmarital child – and

the father’s lack of such a relationship.”); id. at 2203 (quoting as

representative of contemporary views an internal letter to a State Department

official stating that “as a practical matter, it is well known that almost

invariably it is the mother who concerns herself with [the nonmarital] child”).

14 See Collins, 123 Yale L.J. at 2205 n.283.

32

children of unwed citizen mothers than for children of unwed citizen fathers, 1

or (3) that Congress believed that the problem of statelessness was greater for 2

children of unwed citizen mothers than for children of unwed citizen fathers. 3

We conclude that neither reason nor history supports the Government’s 4

contention that the 1952 Act’s gender‐based physical presence requirements 5

were motivated by a concern for statelessness, as opposed to impermissible 6

stereotyping. 7

b. Substantial Relationship Between Ends and 8

Means 9

10

Even assuming for the sake of argument that preventing statelessness 11

was Congress’s actual motivating concern when it enacted the physical 12

presence requirements, we are persuaded by the availability of effective 13

gender‐neutral alternatives that the gender‐based distinction between 14

§ 1409(a) (incorporating § 1401(a)(7)) and § 1409(c) cannot survive 15

intermediate scrutiny. See Wengler, 446 U.S. at 151 (invalidating a gender‐16

based classification where a gender‐neutral approach would serve the needs 17

of both classes); Orr, 440 U.S. at 282‐83 (“A gender‐based classification which, 18

as compared to a gender‐neutral one, generates additional benefits only for 19

those it has no reason to prefer cannot survive equal protection scrutiny.”). 20

33

As far back as 1933, Secretary of State Cordell Hull proposed just such a 1

gender‐neutral alternative in a letter to the Chairman of the House Committee 2

on Immigration and Naturalization. Secretary Hull suggested that the 3

immigration laws be revised “to obtain the objective of parity between the 4

sexes in nationality matters” by “remov[ing] . . . discrimination between” 5

mothers and fathers “with regard to the transmission of citizenship to 6

children born abroad.” Hull proposed the following language: 7

PROPOSED AMENDMENT . . . 8

(d) A child hereafter born out of wedlock beyond the limits and 9

jurisdiction of the United States and its outlying possessions to an 10

American parent who has resided in the United States and its outlying 11

possessions, there being no other legal parent under the law of the 12

place of birth, shall have the nationality of such American parent. 13

14

Letter from Sec’y Hull to Chairman Dickstein (Mar. 27, 1933) (Respondent’s 15

May 8, 2013 Supp. Br. Ex. B).15 16

And unlike the legitimation requirement at issue in Nguyen, which 17

could be satisfied by, for example, “a written acknowledgment of paternity 18

15 In 1936, an Executive Branch official who participated in drafting the 1940

Act recognized that “Section 204 [of the 1940 Act] as drawn up by the

Committee slightly discriminates in favor of women.” Letter from John J.

Scanlon to Ruth B. Shipley, U.S. Dep’t of State (Mar. 7, 1936) (Petitioner’s Nov.

14, 2014 Supp. Br. Ex. 4); see also Collins, 123 Yale L.J. at 2235.

34

under oath,” the physical presence requirement that Morales‐Santana 1

challenges imposes more than a “minimal” burden on unwed citizen fathers. 2

See Nguyen, 533 U.S. at 70‐71. It adds to the legitimation requirement ten 3

years of physical presence in the United States, five of which must be after the 4

age of fourteen. In our view, this burden on a citizen father’s right to confer 5

citizenship on his foreign‐born child is substantial.16 6

For these reasons, the gender‐based distinction at the heart of the 1952 7

Act’s physical presence requirements is not substantially related to the 8

achievement of a permissible, non‐stereotype‐based objective.17 9

16 As we have already noted, the burden is actually impossible for eighteen‐

year‐old unwed citizen fathers to satisfy.

17 We note once more that our conclusion differs from that of the Ninth

Circuit in Flores‐Villar. There the Ninth Circuit assumed, sub silentio, that

Congress’s enactment of the physical presence requirements was actually

motivated by concern for reduction in the risk of statelessness. It also

nominally assumed, without deciding, that intermediate scrutiny applied.

See 536 F.3d at 996 & n.2. We disagree with the Ninth Circuit that the

Government has carried its burden of showing an “exceedingly persuasive

justification” for the statute’s gender‐based classification as a means of

addressing the problem of statelessness. See Kirchberg v. Feenstra, 450 U.S.

455, 461 (1981). The Government has not shown that the problem arose – or

was perceived to arise – more often with citizen mothers than with citizen

fathers of children born out of wedlock abroad. See, e.g., Sandifer,

Comparative Study, 29 Am. J. Int’l L. at 254; Brief of Amici Curiae Scholars on

35

3. Remedy 1

We now turn to the most vexing problem in this case. Here, two 2

statutory provisions – § 1409(c) and (a)18 – combine to violate equal 3

protection. What is the remedy for this violation of equal protection, where 4

citizenship is at stake? Ordinarily, “when the ‘right invoked is that to equal 5

treatment,’ the appropriate remedy is a mandate of equal treatment, a result 6

that can be accomplished by withdrawal of benefits from the favored class as 7

well as by extension of benefits to the excluded class.” Heckler v. Mathews, 8

465 U.S. 728, 740 (1984) (emphasis omitted) (quoting Iowa‐Des Moines Nat’l 9

Bank v. Bennett, 284 U.S. 239, 247 (1931)); accord Califano v. Westcott, 443 10

U.S. 76, 89 (1979). 11

As we see it, “equal treatment” might be achieved in any one of three 12

ways: (1) striking both § 1409(c) and (a) entirely; (2) severing the one‐year 13

continuous presence provision in § 1409(c) and requiring every unwed citizen 14

parent to satisfy the more onerous ten‐year requirement if the other parent 15

Statelessness in Support of Petitioner, Flores‐Villar v. United States, 131 S. Ct.

2312 (2010), 2010 WL 2569160.

18 Recall that § 1409(a) incorporates the physical presence requirement from

§ 1401(a)(7), which applies to married parents of mixed citizenship.

36

lacks citizenship; or (3) severing the ten‐year requirement in §§ 1409(a) and 1

1401(a)(7) and requiring every unwed citizen parent to satisfy the less 2

onerous one‐year continuous presence requirement if the other parent lacks 3

citizenship. In selecting among these three options, we look to the intent of 4

Congress in enacting the 1952 Act. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 5

479 U.S. 272, 292 n.31 (1987) (“[T]he Court must look to the intent of the . . . 6

legislature to determine whether to extend benefits or nullify the statute.”). 7

For reasons we explain below, we conclude that the third option is most 8

consistent with congressional intent. 9

We eliminate the first option with ease. The 1952 Act contains a 10

severance clause that provides: “If any particular provision of this Act, or the 11

application thereof to any person or circumstance, is held invalid, the 12

remainder of the Act . . . shall not be affected thereby.” 1952 Act § 406; cf. 13

Nguyen, 533 U.S. at 72 (“[S]everance is based on the assumption that 14

Congress would have intended the result.”). The clause makes clear that only 15

one of the provisions in § 1409, rather than both, should be severed as 16

constitutionally infirm. 17

37

We reject the second option – contracting, as opposed to extending, the 1

right to derivative citizenship – with more circumspection. The Government 2

urges us to adopt this option, arguing that the alternative allows the 3

exception for unwed mothers to swallow the rule, thereby inflicting more 4

damage to the statute’s language and structure and reflecting a more radical 5

change than the 1952 Congress intended. This argument fails for two reasons. 6

First, the argument misunderstands our task, which is not to devise the 7

“cleanest” way to alter the wording and structure of the statute, but to 8

determine what result Congress intended in the event the combined statutory 9

provisions were deemed unconstitutional. Second, the Government’s 10

argument neglects the historical background against which Congress enacted 11

the relevant provisions. Although a close call, history does not convince us 12

that the members of Congress passing the 1952 Act would have viewed the 13

extension of the one‐year requirement as a more radical change than the 14

alternative, in which all unwed citizen parents must satisfy the ten‐year age‐15

calibrated requirement if the other parent lacks citizenship. To the contrary, 16

the ten‐year requirement for fathers and married mothers imposed by 17

Congress in 1940 appears to have represented a significant departure from 18

38

long‐established historical practice. See Rogers, 401 U.S. at 823‐26 (reviewing 1

the history of derivative citizenship statutes from the Act of March 26, 1790, 1 2

Stat. 103, through the 1952 Act and concluding that “for the most part, each 3

successive statute, as applied to a foreign‐born child of one United States 4

citizen parent, moved in a direction of leniency for the child”). From 1934 5

until the enactment of the 1940 Act, for example, women had the statutory 6

right to confer citizenship on their foreign‐born children and were required 7

merely to have resided in the United States for any duration prior to the 8

child’s birth. The same bare‐minimum requirement applied to men for the 9

vast majority of the time since the founding, from 1790 until 1940. See id.; 10

Weedin, 274 U.S. at 664‐67; Act of May 24, 1934, ch. 344, § 1993, 48 Stat. 797; 11

1940 Act. Moreover, the 1952 Act’s addition of a one‐year continuous 12

physical presence requirement for unmarried citizen mothers represented a 13

relatively minor change in the baseline minimal residency requirement 14

applicable to all men and women prior to 1940. On the other hand, of course, 15

we recognize that the 1952 Congress, presumably with the benefit of this long 16

history, nevertheless decided to retain the ten‐year residency requirement. 17

Whether this related to the emergence of the United States as a world power 18

39

after World War II or an increasing number of children born of mixed‐1

nationality parents, or some other set of factors, we cannot tell with 2

confidence. 3

Neither the text nor the legislative history of the 1952 Act is especially 4

helpful or clear on this point, and ultimately what tips the balance for us is 5

the binding precedent that cautions us to extend rather than contract benefits 6

in the face of ambiguous congressional intent. See, e.g., Westcott, 443 U.S. at 7

89 (“In previous cases involving equal protection challenges to underinclusive 8

federal benefits statutes, this Court has suggested that extension, rather than 9

nullification, is the proper course.” (citing Jimenez v. Weinberger, 417 U.S. 10

628, 637‐38 (1974), and Frontiero v. Richardson, 411 U.S. 677, 691 n.25 (1973) 11

(plurality opinion))); Heckler, 465 U.S. at 738, 739 n.5; Weinberger, 420 U.S. at 12

641‐42, 653; Soto‐Lopez v. N.Y.C. Civil Serv. Comm’n, 755 F.2d 266, 280‐81 (2d 13

Cir. 1985). Indeed, we are unaware of a single case in which the Supreme 14

Court has contracted, rather than extended, benefits when curing an equal 15

protection violation through severance. 16

Lastly, the Government contends that, in giving Morales‐Santana the 17

relief he seeks, we are granting citizenship, which we lack the power to do. 18

40

This argument rests on a mistaken premise. Although courts have no power 1

to confer “citizenship on a basis other than that prescribed by Congress,” 2

Miller, 523 U.S. at 453 (Scalia, J., concurring), Morales‐Santana has not asked 3

us to confer citizenship, and we do not do so. Instead, Morales‐Santana asks 4

that we exercise our traditional remedial powers “so that the statute, free of 5

its constitutional defect, can operate to determine whether citizenship was 6

transmitted at birth.” Nguyen, 533 U.S. at 95‐96 (O’Connor, J., dissenting) 7

(citing Miller, 523 U.S. at 488‐89 (Breyer, J., dissenting)); cf. id. at 73‐74 (Scalia, 8

J., concurring). In other words, if Morales‐Santana “were to prevail, the 9

judgment in [his] favor would confirm [his] pre‐existing citizenship rather 10

than grant [him] rights that [he] does not now possess.” Miller, 523 U.S. at 11

432 (opinion of Stevens, J.). Correcting the constitutional defect here would at 12

a minimum entail replacing the ten‐year physical presence requirement in § 13

1401(a)(7) (and incorporated within § 1409(a)) with the one‐year continuous 14

presence requirement in § 1409(c).19 The alternative remedy suggested by the 15

19 As modified, § 1401(a)(7) would read:

a person born outside the geographical limits of the United

States and its outlying possessions of parents one of whom is

an alien, and the other a citizen of the United States who, prior

to the birth of such person, was physically present in the

41

Government – that all unwed parents be subject to the more onerous ten‐year 1

requirement – would prove no less controversial: we have no more power to 2

strip citizenship conferred by Congress than to confer it. Nor, finally, has 3

Congress authorized us to avoid the question. See 8 U.S.C. § 1252(b)(5)(A) 4

(“If the petitioner claims to be a national of the United States and the court of 5

appeals finds from the pleadings and affidavits that no genuine issue of 6

material fact about the petitioner’s nationality is presented, the court shall 7

decide the nationality claim.” (emphasis added)). Conforming the 8

immigration laws Congress enacted with the Constitution’s guarantee of 9

equal protection, we conclude that Morales‐Santana is a citizen as of his birth. 10

CONCLUSION 11

For the foregoing reasons, we REVERSE the BIA’s decision and 12

REMAND for further proceedings consistent with this opinion. 13

United States or its outlying possessions for a continuous

period of one year: Provided, That any periods of honorable

service in the Armed Forces of the United States by such

citizen parent may be included in computing the physical

presence requirements of this paragraph.

(first emphasis added to reflect change).

Form N-600 Instructions (Rev. 12/23/16)

Department of Homeland Security U.S. Citizenship and Immigration Services

Instructions for Form N-600, Application for Certificate of Citizenship

OMB No. 1615-0057; Expires 12/31/2018

Purpose of Form N-600

This form is an application for a Certificate of Citizenship.

Who Should File This Form

1. If you are requesting a Certificate of Citizenship because you were born outside the United States to a U.S. citizen parent; or

2. If you are requesting a Certificate of Citizenship because you automatically became a citizen of the United States after birth, but before you turned 18 years old. (A parent or legal guardian can also file Form N-600 on behalf of a minor child.)

NOTE: If you are now 18 years of age, but all of the above conditions apply to you before your 18th birthday and you were under the age of 18 on February 27, 2001 (the date the law took affect), you may file this form to obtain a Certificate of Citizenship. HOWEVER, if you were under 18 years of age on February 27, 2001, BUT not all of the conditions noted above were met prior to your 18th birthday, you must qualify for U.S. citizenship in your own right.

Law In Effect at the Time of Your Birth

To determine if you were born a U.S. citizen, USCIS must look at the law that was in effect at the time of your birth. The current law was enacted on November 14, 1986, and was last amended on February 27, 2001 (Child Citizenship Act). If you were born before November 14, 1986, and believe you may be a U.S. citizen, you should contact USCIS by visiting the USCIS website at www.uscis.gov or calling the USCIS National Customer Service Center at 1-800-375-5283. For TTY (deaf or hard of hearing) call: 1-800-767-1833.

Who Should Not File This Form

2. You are the child of a U.S. citizen parent(s) who regularly resides outside the United States. Refer to Form N-600K, Application for Citizenship and Issuance of Certificate Under Section 322;

1. You do not have at least one biological or adoptive U.S. citizen parent;

You should not file this form if:

You Should File This Form

Citizenship law has changed over the years and different laws apply to determine whether you automatically became a U.S. citizen at birth, or after birth but before you turned 18 years of age. If you are claiming U.S. citizenship based on your birth abroad to a U.S. citizen parent(s), the law in effect on the date of your birth applies. For purposes of these provisions, you must be the biological child of your U.S. citizen parent, and different provisions apply depending on whether you were born in wedlock or out of wedlock.

1. Your parent must be a U.S. citizen;

2. You must be the biological child of that U.S. citizen parent;

3. You must be lawfully admitted to the United States for permanent residence; and

4. You must be living in the United States in the legal and physical custody of your U.S. citizen parent.

If you are claiming U.S. citizenship after birth but before you reached the age of 18, the law in effect when the last qualifying condition was met is the law that applies to you. Generally, the conditions are listed below. These conditions must be met before you turn 18 years of age.

You can file Form N-600 at any time if you became a U.S. citizen at birth, or after birth, but before you turned 18 years old. Filing this form is NOT a request to become a U.S. citizen. Filing this form is ONLY a request to obtain a Certificate of Citizenship which recognizes that you became a citizen on a particular date.

Adopted Child

An adopted child may also acquire U.S. citizenship through his or her adoptive U.S. citizen parent depending on the law being applied. Currently, an adopted child can acquire U.S. citizenship through his or her U.S. citizen parent. However, step children CANNOT acquire U.S. citizenship under this provision.

3. You were born out-of-wedlock, you were not legitimated prior to your 16th birthday, and your U.S. citizen parent is your father.

You May File This Form

2. If you are the U.S. citizen parent or legal guardian who has legal and physical custody of an adopted or biological child (under 18 years of age).

1. If you claim to have acquired U.S. citizenship through a U.S. citizen parent and are now over 18 years of age.

Form N-600 Instructions (Rev. 12/23/16) N Page 2

5. You already filed a Form N-600 and received a decision from USCIS on that previously filed Form N-600. USCIS will reject (not accept) any subsequently filed Form N-600. Please review your Form N-600 denial notice for more information.

Required Evidence

If your U.S. citizen parent applies, your U.S. citizen parent must submit his or her birth certificate or record issued and certified by a civil authority in the country of birth.

Marriage Certificate(s) of Your U.S. Citizen Parent. Issued and certified by a civil authority in the State or country of marriage.

Unless specifically noted otherwise, you must submit each of the documents listed below for you and your U.S. citizen parent through whom you are claiming U.S. citizenship at the time of filing to avoid delays in processing your Form N-600. USCIS may require verification for any or all information provided with Form N-600. Additionally, if you are scheduled for an interview with USCIS, you must bring in documentation if information has been updated or has changed after filing.

NOTE: “You” and “your” in this section refers to the individual for whom a Certificate of Citizenship is sought. It is NOT the applicant's parent or legal guardian who may apply on the minor child's behalf.

Documents Showing the Marriage Termination (if applicable). Certified divorce decree, death certificate, or annulment document.

Proof of U.S. Citizenship. Examples of this are birth certificates showing birth in the United States; a Form N-550, Certificate of Naturalization; a Form N-560, Certificate of Citizenship; a Form FS-240, Report of Birth Abroad of United States Citizen; or a valid unexpired U.S. passport.

Proof of Status as U.S. National (only required if you are claiming U.S. citizenship through a U.S. national, such as a person born in American Samoa or Swains Island).

If you were born outside the United States or its outlying possessions, you are born a U.S. citizen if your parents met the following conditions:

1. Your U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of 1 year prior to your birth; and

NOTE: If you have a U.S. citizen parent and a noncitizen parent who is an alien but not a national, your U.S. citizen parent must have met the physical presence requirements prior to your birth.

2. Your other parent was a national but not a U.S. citizen.Photographs. You must submit two identical passport-style color photographs of yourself taken within 30 days of filing Form N-600. The photos must have a white to off-white background, be printed on thin paper with a glossy finish, and be unmounted and unretouched. If a digital photo is submitted, it must to be taken from a camera with at least 3.5 mega pixels of resolution.

The photos must be 2” x 2” and must be in color with full face, frontal view on a white to off-white background. Head height should measure 1” to 1 3/8” from top of hair to bottom of chin, and eye height is between 1 1/8” to 1 3/8” from bottom of photo. Your head must be bare unless you are wearing a headdress as required by a religious denomination of which you are a member; however, your face must be visible. Using pencil or felt pen, lightly print your name and Alien Registration Number (A-Number) on the back of each photo.

Birth Certificate or Record of Your U.S. Citizen Parent. Submit a birth certificate or record issued and certified by a civil authority in the country of birth.

Proof of Legitimation (only required if you who were born out-of-wedlock). Provide legitimation documentation from the country or State in which you legitimated. Legitimation can also be established according to the laws of your father's residence or your residence.

Proof of Legal Custody - (only required for applicants whose U.S. citizen parent(s) divorced and/or separated and for applicants who are adopted or legitimated.)

NOTE: This does not affect you if you were born abroad to an eligible U.S. citizen mother. You may also be eligible for citizenship through the naturalization of your mother.

4. You are seeking to replace a lost or stolen certificate. Please refer to Form N-565, Application for Replacement Naturalization/Citizenship Document, for information to replace a lost or stolen certificate; or

Your Birth Certificate or Record. Submit a birth certificate or record issued and certified by a civil authority in the country of birth.

Copy of Permanent Resident Card or Other Evidence of Permanent Resident Status (only required if you are claiming U.S. citizenship after birth through a U.S. citizen parent).


Proof of Required Residence or Physical Presence In the United States. Any document that proves the U.S citizen parent's residence or physical presence in the United States.

This proof may include but is not limited to the following:

1. School, employment, military records;

2. Deeds, mortgages, leases showing residence;

3. Attestations by churches, unions, or other organizations;

4. U.S. Social Security quarterly reports; and

5. Affidavits of third parties having knowledge of the residence and physical presence.

Copy of Full, Final Adoption Decree (only required for adopted applicants).

3. Date of birth or age at that time; and

4. The name(s) and residence(s) of your birth parents, if shown in the school records.

2. Place of birth;

Census Records. State or Federal census records showing your:

3. Date of birth or age.

1. Name;

2. Place of birth; and

Affidavits (if other types of secondary evidence are not available). Written statements sworn to (or affirmed) by 2 people who have personal knowledge of the claimed event. Affidavits must overcome the unavailability of both required documents and secondary evidence. Examples of events you may submit an affidavit for include the following:

Re-adoption in the United States. If you had to be re-adopted in the United States, submit evidence of a full and final foreign adoption if the appropriate authority in the applicant's current location of residence recognizes its validity.

Evidence of All Legal Name Change(s). If you legally changed your name, submit evidence of an issued and certified document by the court that authorized the legal name change(s).

1. Your place and date of birth;

2. Marriage; or

You must provide a written explanation of the reason(s) a required document(s) is unavailable and submit secondary evidence to establish eligibility. Secondary evidence must overcome the unavailability of the required documents. USCIS may request an original written statement from the appropriate government or other legal authority to support your claim that the documents are unavailable.

What if a Document Is Unavailable?

3. Death.

The people making these statements are not required to be U.S. citizens and may be relatives. Each affidavit must contain the following information about the person making the affidavit:

1. Full legal name;

2. Address;

Baptismal Certificate. Certificate under the church seal where your baptism occurred showing your:

1. Place of birth;

2. Date of birth;

3. Baptism date;

The following types of secondary evidence may be submitted to establish eligibility.

5. Relationship to you; and

6. Detailed information about the event to include how they came to know about its occurrence.

3. Place of birth;

4. Date of birth;

5. Godparent(s) name(s), if known.

4. Parents names; and

General Instructions

1. Type or print clearly using black ink. Keep all information within the area provided.

If extra space is needed to answer any question, attach an additional sheet(s) of paper. You must provide the following information on the top of each sheet of paper:

A. Your A-Number, if applicable;

School Record. An official letter from school authorities for the school attended (preferably the first school) showing your:

1. Date of admission to the school;


2. Answer all questions fully and accurately. Write “N/A” if an item is not applicable. Write “None” if the answer is none.

D. Your signature.

B. The date;

C. Question number; and

Current Legal Name. Provide the person's legal name. This should be the name on the person's birth certificate unless it has been changed after birth by legal action such as marriage, adoption, or court order. Do not provide a nickname.

U.S. Social Security Number. Print the person's U.S. Social Security Number. Write "N/A" if the person does not have one.

Date of Birth. Use eight numbers to show the date of birth. For example, May 1, 1992, must be written as 05/01/1992.3. Avoid highlighting, crossing out, or writing outside the

area provided for a response.

If you must make substantial corrections to your Form N-600, USCIS recommends that you begin with a new Form N-600 rather than using correction tape or fluid to white out information. USCIS scanners may see through the white correction tape or fluid. This may lead to incorrect information being captured in USCIS systems which may cause processing delays or a rejection of your Form N-600.

Ensure that you are using the correct edition of the Form N-600. The correct edition is available on the USCIS website at www.uscis.gov.

Home Address. Provide the address where the person now resides. Do not provide a Post Office (P.O.) Box number unless it is the person's ONLY address.

Telephone Numbers. Provide the person's current telephone numbers. If the answer is none, write “None.” If the person is hearing impaired and uses a TTY telephone connection, please indicate this by writing "TTY" after the telephone number.

Country of Birth. Provide the name of the country where the person was born. Write the name of the country even if country's name has since changed or the country no longer exists.

4. Provide your A-Number on the top right corner of each page (if applicable). Your A-Number is located on your Permanent Resident Card (formerly known as the Alien Registration or “Green” Card). The A-Number on your card consists of seven to nine numbers, depending on when your record was created. If the A-Number on your card has fewer than nine numbers, place enough zeros before the first number to make a total of nine numbers on Form N-600. For example, write number A1234567 as A001234567 or write number A12345678 as A012345678.

Part 1. Information About Your Eligibility (Check only one box. USCIS will reject your Form N-600 if you check more than one box.)

Check the box in number 1 OR 2 that best indicates why you are eligible for a Certificate of Citizenship.

E-Mail Address. Provide the person's current e-mail address. If the person does not have an e-mail address, write “None.”

Translations. You must provide a full English translation for any document written in a foreign language you submit to USCIS. The translator must certify that the translation is complete and accurate and that he or she is competent to translate from the foreign language into English.

Check the box in number 3 (Other) if the basis for your eligibility is not described in any of the previous categories and briefly write the basis for your application on the lines provided.

Copies. You may submit copies of documents unless USCIS requests original documents. Original documents submitted when not required may remain a part of the record.

This form is divided into 10 parts.

General Items (all of the following items pertain to Part, 1, Part 2, AND Part 3 in the form)

Specific Form Instructions

Complete information must be provided about the person seeking a Certificate of Citizenship. If you are the U.S. citizen parent applying for a Certificate of Citizenship on behalf of your minor biological or adopted child, submit information relating to your minor child.

Part 2. Information About You

NOTE: Not all of the questions are explained in this part because they are located in the General Items section of Specific Form Instructions. Please go to that section for more information.

http://www.uscis.gov


3. Other Names Used Since Birth (if applicable. Include nicknames). Write any other name(s) you have used since birth. Attach an additional sheet(s) of paper if more space is needed.

2. Name Exactly as it Appears on Your Permanent Resident Card (if different from above). Write your name exactly as it appears on your card, even if it is misspelled. Write N/A if you do not have a permanent resident card.

C. Provide information about your current immigration status in the United States.

B. If you are a citizen or national of more than one country, provide the name of the foreign country that issued your latest passport.

8. Gender. Indicate whether you are male or female.

9. Height. Provide your height in feet and inches.

A. If the country no longer exists or you are stateless, provide the name of the foreign country where you were last a citizen or national.

7. Country of Prior Citizenship/Nationality. Provide the name of the country of your citizenship/nationality before you became a U.S. citizen.

17. Previous Application for Certificate of Citizenship or U.S. Passport. If you previously applied for a Certificate of Citizenship or a U.S. Passport (or you are a U.S. citizen parent who previously applied for a Certificate of Citizenship or U.S. Passport for your minor child), explain on a sheet of paper what happened with that application and whether the Certificate of Citizenship or U.S. Passport was or was not issued.

D. Provide information if you adjusted to permanent resident status while in the United States including the date, USCIS office, and location where USCIS granted your status or location where you were admitted as a permanent resident.

19. Information on Adoption. If you were adopted, provide information as to the date and place of the adoption and the dates that legal and physical custody began.

18. Permanent Resident Status Abandonment. Indicate if you have ever abandoned your permanent residence.

11. Mailing Address. Provide your mailing address even if it is the same as your home address. Provide "in care of name" information, if applicable. You must write something in every box, except an apartment number or “C/O” if you do not have one, within “Mailing Address."

NOTE: USCIS may not be able to contact you if you do not provide a complete and valid address. If USCIS rejects your application, USCIS may not be able to return the fee for the Form N-600 to you if you do not provide a complete and valid address. If USCIS cannot return the fee USCIS will cash your check.

20. Re-Adoption in the United States. Indicate if you have been re-adopted in the United States. (See Required Evidence for more information.)

21. Marital Status of Your Parents At Time of Birth (or Adoption). Indicate whether your parents were married to each other at the time of your birth. If you were born out-of-wedlock, indicate “No" even if your parents subsequently married. If you were adopted, indicate whether your adoptive parents were married to each other at the time of your adoption.

14. Marital Status. Check the marital status you have on the date you file this Form N-600. Check “Other” if your marriage was otherwise legally terminated and explain.

15. U.S. Armed Forces. Indicate if you are a member or veteran of any branch of the U.S. Armed Forces.

16. Information About Your Admission Into the United States and Current Immigration Status.

A. Provide information about where you entered the United States and what name you used when you entered.

23. Legal and Physical Custody. Indicate whether you are in the physical and legal custody of your U.S. citizen parent.

22. Marital Status of Your Parents After Birth. Indicate whether your parents married after your birth.

NOTE: If you are a U.S. citizen parent applying on behalf of a minor biological or adopted child, indicate whether you were married to his or her parent at the time of your minor child's birth (or adoption). If your minor child was born out-of-wedlock, indicate “No,” even if you subsequently married your child's biological parent.

B. Provide information about what documents you presented to enter the United States. Provide your passport number and date of issuance, if known.

24. Absences from the United States. Provide the requested information for every trip that you have taken since you first arrived in the United States. Begin with the most recent trip. This information is needed only for persons born before October 10, 1952, who are claiming U.S. citizenship at the time of birth.


Provide information about yourself if you are a U.S. citizen biological father (or adoptive father) applying for a Certificate of Citizenship on behalf of your minor child, where information is requested about the U.S. citizen father.

4. Country of Citizenship/Nationality. Provide the name of the country of your U.S. citizen father's citizenship/nationality.

NOTE: Not all of the questions are explained in this part because some are located in the General Items section of Specific Form Instructions. Please go to that section for more information.

Complete this section if you are claiming citizenship through a U.S. citizen biological father (or adoptive father). Complete Part 4 if you are claiming citizenship solely through a U.S. citizen biological mother (or adoptive mother).

Part 3. Information About Your U.S. Citizen Biological Father (or Adoptive Father)

Part 4. Information About Your U.S. Citizen Biological Mother (or Adoptive Mother)

Complete this section if you are claiming citizenship through a U.S. citizen biological mother (or adoptive mother). Complete Part 3 if you are claiming citizenship solely through a U.S. citizen biological father (or adoptive father).

Provide information about yourself if you are a U.S. citizen biological mother (or adoptive mother) applying for a Certificate of Citizenship on behalf of your minor child, where information is requested about the U.S. citizen mother.

NOTE: Not all of the questions are explained in this part because some are located in the General Items section of Specific Form Instructions. Please go to that section for more information.

If your U.S. citizen father is a citizen or national of more than one country, provide the name of the country that issued your U.S. citizen father's latest passport.

If the country no longer exists or your U.S. citizen father is stateless, provide the name of the country where your U.S. citizen father was last a citizen or national.

6. U.S. Citizenship. Provide all requested information regarding how your father became a U.S. citizen.

4. Country of Citizenship/Nationality. Provide the name of the country of your U.S. citizen mother's citizenship/nationality.

If the country no longer exists or the U.S. citizen mother is stateless, provide the name of the country where your U.S. citizen mother was last a citizen or national.

If your U.S. citizen mother is a citizen or national of more than one country, provide the name of the country that issued your U.S. citizen mother's latest passport.

6. U.S. Citizenship. Provide all the requested information regarding how your mother became a U.S. citizen.

A. Provide the number of times your U.S. citizen father has been married. Include any annulled marriages. Count each marriage as separate if your parent married the same spouse more than one time.

8. Marital History

B. Check the marital status your U.S. citizen father has on the date you file Form N-600. Check “Other” if his marriage was otherwise legally terminated and explain.

7. Loss of U.S. Citizenship. Provide information on an additional sheet(s) of paper if your father ever lost U.S. citizenship regardless of whether it has since been regained.

8. Marital History

A. Provide the number of times your U.S. citizen mother has been married. Include any annulled marriages. If she was married more than one time to the same spouse, count each time as a separate marriage.

7. Loss of U.S. Citizenship. Provide information on an additional sheet(s) of paper if your mother ever lost U.S. citizenship regardless of whether it has since been regained.

C. If your U.S. citizen father is now married, provide information about his current spouse. Check the appropriate box to indicate his spouse's current immigration status.

D. Indicate whether your U.S. citizen father's current spouse is also your biological (or adopted) mother. If “No”, USCIS may ask you to provide additional information about your father's previous spouse(s).

C. If your U.S. citizen mother is now married, provide information about her current spouse. Check the appropriate box to indicate her spouse's immigration status.

D. Indicate whether your U.S. citizen mother's current spouse is also your biological (or adopted) father. If “No,” USCIS may ask you to provide additional information about your mother's previous spouse(s).

B. Check the marital status your U.S. citizen mother has on the date you file Form N-600. Check “Other” if her marriage was otherwise legally terminated and explain.


Part 5. Physical Presence in the United States From Birth Until Filing of Form N-600

Physical Presence. If you were born outside the United States and claim to have been born a U.S. citizen, you are required to provide all the dates when your U.S. citizen biological father or U.S. citizen biological mother resided in the United States. Include all dates from your birth until the date you file your Form N-600.

Children of Members of the U.S. Armed Forces or U.S. Government Employees temporarily stationed abroad are generally considered to be “residing in the United States” for purposes of acquisition of citizenship at birth.

Provide the requested information if either U.S. citizen parent served in the U.S. Armed Forces. Also indicate whether he or she was honorably discharged from service.

Part 6. Information About Military Service of U.S. Citizen Parent (Applicable only for applications filed under section 301(g))

Any Form N-600 that is not signed or accompanied by the correct fee, except those accompanied by a fee waiver request (Form I-912, Request for Fee Waiver), will be rejected. A Form N-600 that is not completed according to these instructions, is missing pages or otherwise not executed in its entirety, or is not accompanied by the required initial evidence may be rejected or delayed. If USCIS rejects your Form N-600 for any of the reasons above, the form and any fees will be returned to you if you provided a complete and valid mailing address. You will be notified why the form is considered deficient. You may correct the deficiency and refile Form N-600. An application or petition is not considered properly filed until accepted by USCIS.

Processing Information

Part 7. Your Signature

Sign the Form N-600 as you normally sign your name. You may place an “X” mark instead of a signature if you are unable to write in any language.

USCIS may request more information or evidence. USCIS may also request that you submit the originals of any copies that you previously provided to USCIS with your Form N-600. USCIS may request that you appear for an interview.

Requests for More Information or Interview

A parent or legal guardian may sign for a child who is under 14 years of age. A child under 14 years of age may also sign the Form N-600 on their own behalf without their parent's or legal guardian's signature.

NOTE: USCIS will reject your Form N-600 if it is not signed.

If you prepared this form by yourself, leave this section blank. If someone filled out this form for you, he or she must complete this section. Your parent must complete this part if your parent prepared this Form N-600 for you.

Part 8. Signature of Person Who Prepared this Form N-600 For You (if applicable)

What Is the Filing Fee

The fee for filing Form N-600 is $1,170.

The decision on Form N-600 involves a determination of whether you have established eligibility for the requested benefit. If you do not establish a basis for eligibility, USCIS will deny your Form N-600. You will be notified of the decision in writing.

Decision

For USCIS use ONLY.

Do NOT complete this part unless instructed to do so AT THE INTERVIEW.

Part 9. Affidavit

Part 10. Officer Report and Recommendation On Application for Certificate of Citizenship

NOTE: There is no filing fee for Form N-600 if you are a member or veteran of any branch of the U.S. Armed Forces filing on your own behalf. You must attach proof of U.S. military service; otherwise USCIS will charge a fee to file the Form N-600. Children of members or veterans of the Armed Forces ARE required to pay the filing fee for Form N-600.

NOTE: The filing fee is not refundable, regardless of any action USCIS takes on this application. DO NOT MAIL CASH. You must submit all fees in the exact amounts.


2. Make the check or money order payable to U.S. Department of Homeland Security.

NOTE: Spell out U.S. Department of Homeland Security; do not use the initials “USDHS” or “DHS."

USCIS will reject your Form N-600 if you submit the incorrect fee. In such a case, USCIS will return any filing fee you submitted with your Form N-600.

Notice To Those Making Payment by Check

If you send us a check, USCIS will convert it into an electronic funds transfer (EFT). This means we will copy your check and use the account information on it to electronically debit your account for the amount of the check. The debit from your account will usually take 24 hours and your bank will show it on your regular account statement.

Where To File

1. Visit the USCIS website at www.uscis.gov, select “FORMS,” and check the appropriate fee; or

2. Call the USCIS National Customer Service Center at 1-800-375-5283 and ask for fee information. For TTY (deaf or hard of hearing) call: 1-800-767-1833.

Form N-600's filing fee is current as of the edition date in the lower right corner of this page. However, because USCIS fees change periodically, you can verify that the fees are correct by following one of the steps below.

How to Check If the Fees Are Correct

Use the following guidelines when you prepare your check or money order for the Form N-600 filing fee:

1. The check or money order must be drawn on a bank or other financial institution located in the Unites States and must be payable in U.S. currency; and

Please see our website at www.uscis.gov/N-600 or call our National Customer Service Center at 1-800-375-5283 for the most current information about where to file this application. For TTY (deaf or hard of hearing) call: 1-800-767-1833.

NOTE: Do not submit a change of address request to the USCIS Lockbox facilities because the USCIS Lockbox facilities do not process change of address requests.

You must notify USCIS of your new address within 10 days of moving from your previous residence. For information on filing a change of address go to the USCIS website at www.uscis.gov/addresschange or contact the USCIS National Customer Service Center at 1-800-375-5283. For TTY (deaf or hard of hearing) call: 1-800-767-1833.

Address Change

You will not receive your original check back. We will destroy your original check, but will keep a copy of it. If USCIS cannot process the EFT for technical reasons, you authorize us to process the copy in place of your original check. If your check is returned as unpayable, USCIS will re-submit the payment to the financial institution one time. If the check is returned as unpayable a second time, we will reject your application and charge you a returned check fee.

To ensure you are using the latest version of this application, visit the USCIS website at www.uscis.gov where you can obtain the latest USCIS forms and immigration-related information. If you do not have Internet access, you may order USCIS forms by calling our toll-free number at 1-800-870-3676. You may also obtain forms and information by calling the USCIS National Customer Service Center at 1-800-375-5283. For TTY (deaf or hard of hearing) call: 1-800-767-1833.

USCIS Forms and Information

Fee Waiver Request

You may be eligible for a fee waiver under 8 CFR 103.7(c). If you believe you are eligible for a fee waiver, complete Form I-912, Request for Fee Waiver (or a written request) and submit it and any required evidence of your inability to pay the filing fee with this application. You can review the fee waiver guidance at www.uscis.gov/feewaiver.

Instead of waiting in line for assistance at your local USCIS office, you can now schedule an appointment through our online system, InfoPass, at infopass.uscis.gov. Use the InfoPass appointment scheduler and follow the screen prompts to set up your appointment. InfoPass generates an electronic appointment notice that appears on the screen.


http://www.uscis.gov/feewaiver


You may be represented, at no expense to the U.S. Government, by an attorney or other duly accredited representative. Your representative must submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, with your Form N-600. If USCIS requests you to appear for an interview, your representative may also submit the Form G-28 at that time. Form G-28 can be obtained by visiting the USCIS website at www.uscis.gov, calling the USCIS forms line number at 1-800-870-3676, or by calling the USCIS National Customer Service Center at 1-800-375-5283.

Attorney or Representative

An agency may not conduct or sponsor an information collection, and a person is not required to respond to a collection of information, unless it displays a currently valid OMB control number. The public reporting burden for this collection of information is estimated at 1 hour and 35 minutes per response including the time for reviewing instructions, gathering the required documentation and information, completing the application, attaching necessary documentation, and submitting the application. The collection of biometrics is estimated to require 1 hour and 10 minutes. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: U.S. Citizenship and Immigration Services, Regulatory Coordination Division, Office of Policy and Strategy, 20 Massachusetts Ave NW, Washington, DC 20529-2140; OMB No. 1615-0057. Do not mail your completed Form N-600 to this address.

Paperwork Reduction Act

If you knowingly and willfully falsify or conceal a material fact or submit a false document with your Form N-600, we will deny your Form N-600 and may deny any other immigration benefit. In addition, you will face severe penalties provided by law and may be subject to criminal prosecution.

Penalties

AUTHORITIES: The information requested on this application, and the associated evidence, is collected under the Immigration and Nationality Act, section 101.

USCIS Privacy Act Statement

PURPOSE: The primary purpose for providing the requested information on this application is to determine if you have established eligibility for the immigration benefit for which you are filing. DHS will use the information you provide to grant or deny the immigration benefit you are seeking.

DISCLOSURE: The information you provide is voluntary. However, failure to provide the requested information, and any requested evidence, may delay a final decision in your case or result in denial of your application.

ROUTINE USES: DHS may share the information you provide on this application with other Federal, state, local, and foreign government agencies and authorized organizations. DHS follows approved routine uses described in the associated published system of records notices [DHS/USCIS-007 - Benefits Information System and DHS/USCIS-001 - Alien File, Index, and National File Tracking System of Records] which you can find at www.dhs.gov/privacy. DHS may also share the information, as appropriate, for law enforcement purposes or in the interest of national security.


www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

www.dhs.gov/privacy

2/26/2017

1

Naturalization waivers and exceptions

Midori Hills, Esq.Staff Attorney

Fee waiver/reduced fee

• 8 CFR 103.7(c)(3) includes N-400 as one of the forms eligible for fee waiver

• Guidance on the I-912 taken from the Adjudicator’s Field Manual, Chapter 10.9 Update AD11-26

• Information on the I-942 taken from the USCIS website “Additional Information on filing a reduced fee request”

Fee waivers

Three categories of eligibility:• Receiving means-tested public benefits;• Living below 150% of the Federal Poverty

Guidelines;• Living with other financial hardship

2/26/2017

2

Reduced fee

• Applicants living between 150% and 200% of the Federal poverty Guidelines qualify to pay a reduced fee of $405 ($320 plus $85 biometrics fee)

Completing the forms

• Several sections on the I-912 and I-942 are similar so both are covered below.

Information about you

• Part 2 on the I-912, Part 1 on the I-942• Note the marital status, question 4, separated refers to legal

separations only.

2/26/2017

3

Family members filing the request with you

• Part 3 on the I-912, part 2 on the I-942• Applicant goes on the first line as “self”• Do not include family members here unless spouse and/or

dependent children are also filing N400s. • Alternatively, file separate requests for each family member

Household income

• See IRS Publication 501 for definitions• Dependents for tax purposes only—IRS definition of

qualifying child or qualifying relative. • Child-child, stepchild, foster child or descendant of any of

them, or sibling, half sibling, step sibling or any descendant of any of them; AND under age 19 at the end of he year, full time student under age 24, or permanently and totally disabled, regardless of age.

• Relative-live with applicant all year, be related, parent, step parent, grandparents, nieces/nephews, parent’s sibling, in-laws, direct ancestors (NO foster parents).

Household income

• Part 5 of the I-912, Part 3 of the I-942• Note that even though legally married, if living apart, the

spouse’s income will not be included by answering question 2 “no”

• Also note that any financial support by the spouse must be included as part of the additional income or financial support

2/26/2017

4

Part 3 Household income continued

• Question 8, has anything changed since the date you filed your Federal tax returns?

Where the most recent tax year shows income above the threshold for either fee waiver or reduced fee, this is where the applicant shows recent unemployment, new household members, or other conditions cause the income to fall below the threshold.

3 ways to qualify for fee waiver

• Form I-912 Request for Fee Waiver

Completing the form I-912

• Only complete the sections that relate to the basis for the fee waiver.

• Part 4 (but not 5 and 6) for means-tested benefits;• Part 5 (but not 4 and 6) for low income;• Part 6 (but not 4 and 5) for financial hardship.

2/26/2017

5

Means-tested benefits

• Designated as means-tested by PWRORA (1996) 42 USC 1305

• Official document from the agency awarding the benefit is necessary. (See sample award letters)

• Household member receiving the benefit can be:-spouse of applicant (to qualify under “receipt of public benefit”)-unmarried children under 21 living with applicant (to qualify under “below 150% of poverty guideline” or “financial hardship”

Examples of means-tested benefits

• Medicaid/Medicare• Food stamps (SNAP: Supplemental Nutrition Assistance Program)• TANF• SSI (Supplemental Security Income)• SSDI (Social Security Disability Insurance)• ADD (Administration of Development Disabilities (direct svcs only))• Child Care and Development Fund• Independent living program, • Job Opportunities for Low Income Individuals (JOLI)• Low-Income Home Energy Assistance Program (LIHEAP)• Postsecondary education loans/grants• Public housing, Section 8 housing• Refugee assistance

• CHIP (State Children’s Health Insurance Program), etc.

Examples of non-means-tested benefits

• Social Security Disability Insurance• Medicare• Social Security• Emergency Medicaid• Short term non-cash emergency relief• Student assistance under the Higher Education Act• Foster care or adoption assistance under the SSA• Head Start programs• Means-tested programs under the Elementary and Secondary

Education act, including Child Nutrition programs• Job Training Partnership act programs.

2/26/2017

6

Supporting documentation for low income fee waiver

• Submit request with most recent taxes• If changed circumstances since most recent tax filing, submit

any documentation of the change and proof of low income (proof of unemployment or new household members)

Reduced Fee Request

• Form I-942 Request for Reduced Fee• May qualify to pay a reduced fee ($320 + $85 = $405) for

biometrics) if household income is greater than 150% and not more than 200% of poverty line

Supporting evidence for reduced fee request

• Most recent tax returns showing income greater than 150% and not more than 200% of poverty level

• If changed circumstances since most recent tax filing, submit any documentation of the change and proof of low income (proof of unemployment or new household members)

2/26/2017

7

Knowledge of U.S. History and Civics

English Civics

Requirement understand English fundamentals of US history and principles and form of US government

Test communicate at the interviewread one or two sentenceswrite one or two sentences

10 out of 100 questions. Must answer six questions correctly

Exceptions 55/15; 50/20; disability 65/20; disability

19

English-language Ability

• Speaking ability is established during the interview• Must read and write 1-2 basic sentences at the interview• About 4th grade level

Exemptions :• 50/20: 50 years or older and LPR 20 years or more• 55/15: 55 years or older and LPR 15 years or more• N-648 Disability Waiver • Due consideration• Take English classes and return when ready.• INA §312 and 8 CFR §312

20

History and civics

• Demonstrate knowledge of basic history/principles of government

• Correctly answer six out of 10 from a list of 100 questions.• Simplified exam for those 65 years or older and LPR 20 years

of more. List of only 20 questions.

If the applicant cannot demonstrate knowledge:• Form N-648 Medical Certification for Disability Exceptions

(Current edition is 03/11/2015)• Due consideration• Study and learn questions.

2/26/2017

8

N-648 Disability Waivers

• INA sec. 312(b)(1): English and civics requirements shall not apply to applicant who is unable to comply due to physical/developmental disability or mental impairment

• 8 CFR sec. 312.1and 312.2 Must be a “medically determinable” physical, developmental or mental disability that is expected to last 12 months

• Disability must have so impaired the individual’s functioning as to cause him/her to be unable to learn English and/or US history and civics

22

Examples of diagnoses

Commonly seen diagnoses that are accepted

Commonly seen diagnoses that are rejected

• Dementia• Alzheimer’s• intellectual disabilities• PTSD• Depression• stroke

• Old age• Forgetfulness• Illiteracy/no formal

education• Hearing impairment• Sight impairment

Procedures for N-648

• File with N-400• May file at interview but can cause delays• Doctor must certify form within six months of submission • If USCIS accepts N-648, no language and/or civics required• If N-648 deemed insufficient, officer will proceed with

interview and examination• USCIS Policy Manual, Volume 12

2/26/2017

9

Working with the doctor

• Provide guidelines to the doctor, along with the blank N-648. offer to review and answer questions. Stress the importance of Question 10, describe how the disability or impairment affects the applicant’s ability to demonstrate knowledge and understanding

• See attachment N-648 Help for doctors for more

Question 10: Nexus

• Doctor must connect the nature and extent of the medical condition to the inability to learn or understand new information

• Specifically tie the symptoms to the inability to learn• If the applicant is able to learn, albeit with difficulty, she

will not qualify for the N-648 exception. Must show an inability to demonstrate knowledge and understanding

N-648 pitfalls

• Incomplete submissions • Insufficient answers or use of acronyms• Boiler plate submissions• Illegible handwriting• Missing medical diagnoses or DSM IV codes• Including extraneous diagnoses unrelated to the inability to

learn or retain information• Use of medical jargon instead of using common terminology

Form I-912 04/25/16 Y Page 1 of 11

Request for Fee Waiver Department of Homeland Security


For USCIS

Use Only

USCIS Form I-912

OMB No. 1615-0116 Expires: 04/30/2018

START HERE - Type or print in black ink.►

Application Receipted At (Select only one box)

USCIS Field Office USCIS Service Center

Fee Waiver Approved

Date:______________

Fee Waiver Denied

Date:______________

Fee Waiver Approved

Date:______________

Fee Waiver Denied

Date:______________

Part 1. Basis for Your Request (Each basis is further explained in the Specific Instructions section of the Form I-912 Instructions)

I am, my spouse is, or the head of household living in my household is currently receiving a means-tested benefit. (Complete Parts 2. - 4. and Parts 7. - 10.)

My household income is at or below 150 percent of the Federal Poverty Guidelines. (Complete Parts 2. - 3., Part 5., and 7. - 10.)

I have a financial hardship. (Complete Parts 2. -3. and Parts 6. - 10.)

1.

If you need extra space to complete any section of this request or if you would like to provide additional information about your circumstances, use the space provided in Part 11. Additional Information.

Complete and submit as many copies of Part 11., as necessary, with your request.

Select at least one basis or more for which you may qualify and provide supporting documentation for any basis you select. You only need to qualify and provide documentation for one basis for U.S. Citizenship and Immigration Services (USCIS) to grant your fee waiver. If you choose, you may select more than one basis; you must provide supporting documentation for each basis you want considered.

2.

3.

Family Name (Last Name) Given Name (First Name) Middle Name

1. Full Name

Part 2. Information About You (Requestor)

Provide information about yourself if you are the person requesting a fee waiver for a petition or application you are filing. If you are the parent or legal guardian filing on behalf of a child or person with a physical disability or developmental or mental impairment, provide information about the child or person for whom you are filing this form.

Other Names Used (if any) 2.


List all other names you have used, including nicknames, aliases, and maiden name.

4. USCIS Online Account Number (if any)3. Alien Registration Number (A-Number) (if any)A-► ►

Date of Birth (mm/dd/yyyy)5. 6. U.S. Social Security Number (if any)►

Form I-912 04/25/16 Y Page 2 of 11

Marital Status7.Marriage Annulled Separated

Part 2. Information About You (Requestor) (continued)

Part 3. Applications and Petitions for Which You Are Requesting a Fee Waiver 1. In the table below, add the form numbers of the applications and petitions for which you are requesting a fee waiver.

Applications or Petitions for You and Your Family MembersFull Name A-Number (if any) Date of Birth Relationship to You

A-A-A-A-

Forms Being Filed

Total Number of Forms (including self)

Part 4. Means-Tested Benefits

1. If you, your spouse, or the head of household (including parent if the child is under 21 years of age) living with you is receiving any means-tested benefits, list the information in the table below and attach supporting documentation. If you are the parent or legal guardian filing on behalf of a child or person with a physical disability or developmental or mental impairment, provide information about the child or person for whom you are filing this form if he or she is receiving a means-tested benefit.

Means-Tested Benefit RecipientsFull Name of Person Receiving the Benefit

Relationship to You

Name of Agency Awarding Benefit

Type of Benefit

Date Benefit was Awarded

Date Benefit Expires (or must be renewed)

Part 5. Income at or Below 150 Percent of the Federal Poverty Guidelines

Your Employment Status

Employment Status1.

Other (Explain)RetiredEmployed (full-time, part-time, seasonal, self-employed)

Unemployed or Not Employed

Single, Never Married Married Divorced Widowed

Other (Explain)

If you selected Item Number 1. in Part 1., complete this section.


Form I-912 04/25/16 Y Page 3 of 11

2. If you are currently unemployed, are you currently receiving unemployment benefits? Yes No

Date you became unemployed (mm/dd/yyyy)

A.

Information About Your Spouse

3. If you are married or separated, does your spouse live in your household? Yes No

If you answered “No” to Item Number 3., does your spouse provide any financial support to your household?

A. Yes No

4. Are you the person providing the primary financial support for your household? Yes No

If you answered “Yes” to Item Number 4., type or print your name on the line marked “self” in the table below. If you answered “No” to Item Number 4., type or print your name on the line marked “self” in the table below and add the head of household's name on the line below yours.

Your Household Size

Household Size

Full Name

Full-Time Student

Yes No

Yes No

Yes No

Yes No

Relationship to You

Date of Birth Married

Yes No

Yes No

Yes No

Yes No

Is any income earned by this person counted towards the

household income?

Yes No

Yes No

Yes No

Yes No

Self

Total Household Size (including self)

5. Your Annual Income

6. Annual Income of All Family Members

Provide information about your income and the income of all family members counted as part of your household. You must list all amounts in U.S. dollars.

Your Annual Household Income

Provide the annual income of all family members counted as part of your household as listed in Item Number 4. (Do not include the amount provided in Item Number 5.)

Part 5. Income at or Below 150 Percent of the Federal Poverty Guidelines (continued)

7. Total Additional Income or Financial Support

Provide the total annual amount you receive in additional income or financial support from a source outside of your household. (Do not include the amount provided in Item Numbers 5. or 6.) You must add all of the additional income and financial support amounts and put the total amount in the space provided. Type or print "0" in the total box if there are none. Select the type of additional income or financial support that you receive and provide documentation.

Parental Support

Spousal Support (Alimony)

Child Support

Educational Stipends

Royalties

Pensions

Unemployment Benefits

Social Security Benefits

Veteran's Benefits

Financial Support From Adult Children, Dependents, Other People Living in the Household Other (Explain)

$

$

$

Form I-912 04/25/16 Y Page 4 of 11

Part 5. Income at or Below 150 Percent of the Federal Poverty Guidelines (continued)

8. Total Household Income (add the amounts from Item Numbers 5., 6., and 7.)

9. Has anything changed since the date you filed your Federal tax returns? (For example, your marital status, income, or number of dependents.)

Yes No

If you answered "Yes" to Item Number 9., provide an explanation below. Provide documentation if available. You may also use this space to provide any additional information about your circumstances that you would like USCIS to consider.

Part 6. Financial Hardship

1. If you or any family members have a situation that has caused you to incur expenses, debts, or loss of income, describe the situation in the box below. Specify the amounts of the expenses, debts, and income losses in as much detail as possible. Examples may include medical expenses, job loss, eviction, and homelessness.


2. If you have cash or assets that you can quickly convert to cash, list those in the table below. For example, bank accounts, stocks, or bonds. (Do not include retirement accounts.)

AssetsType of Asset Value (U.S. Dollars)

Total Value of Assets

$

Form I-912 04/25/16 Y Page 5 of 11

question in , a language in which I am fluent,

Part 6. Financial Hardship (continued)

Provide the total monthly amount of your expenses and liabilities. You must add all of the expense and liability amounts and type or print the total amount in the space provided. Type or print "0" in the total box if there are none. Select the types of expenses or liabilities you have each month and provide evidence of monthly payments, where possible.

Rent and/or Mortgage

Food

Utilities

Child and/or Elder Care

Insurance

Loans and/or Credit Cards

Car Payment

Commuting Costs

Medical Expenses

School Expenses

Other

At my request, the preparer named in Part 10., , prepared this request for me based only upon information I provided or authorized.

Requestor's Statement Regarding the Preparer (if applicable)2.

I can read and understand English, and I have read and understand every question and instruction on this request and my answer to every question.

Part 7. Requestor's Statement, Contact Information, Certification, and Signature

A.

Requestor's Statement Regarding the Interpreter1.

Select the box for either Item A. or B. in Item Number 1. If applicable, select the box for Item Number 2.

Each person applying for a fee waiver request must complete, sign, and date Form I-912 and provide the required documentation. This includes family members identified in Part 3. Signature fields for family members are at the end of this part. If an individual is under 14 years of age, a parent or legal guardian may sign the request on their behalf. USCIS rejects any Form I-912 that is not signed by all individuals requesting a fee waiver and may deny a request that does not provide required documentation.

The interpreter named in Part 9. read to me every question and instruction on this request and my answer to every B.

and I understood everything.

NOTE: Read the Penalties section of the Form I-912 Instructions before completing this part.

Total Monthly Expenses and Liabilities 3.

Requestor's Daytime Telephone Number3. 4. Requestor's Mobile Telephone Number (if any)

Requestor's Contact Information

Requestor's Email Address (if any)5.

Copies of any documents I have submitted are exact photocopies of unaltered, original documents, and I understand that USCIS may require that I submit original documents to USCIS at a later date. Furthermore, I authorize the release of any information from any of my records that USCIS may need to determine my eligibility for the immigration benefit I seek.

I further authorize release of information contained in this request, in supporting documents, and in my USCIS records to other entities and persons where necessary for the administration and enforcement of U.S. immigration laws.

Requestor's Certification

I certify, under penalty of perjury, that I provided or authorized all of the information in my request, I understand all of the information contained in, and submitted with, my request, and that all of this information is complete, true, and correct.

$

Form I-912 04/25/16 Y Page 6 of 11

Part 7. Requestor's Statement, Contact Information, Certification, and Signature (continued)

Requestor's Signature

Requestor's Signature Date of Signature (mm/dd/yyyy)6.

WARNING: If you knowingly and willfully falsify or conceal a material fact or submit a false document with your Form I-912, USCIS will deny your fee waiver request and may deny any other immigration benefit. In addition, you may face severe penalties provided by law and may be subject to criminal prosecution.

Family Members' SignaturesNOTE: Each family member must type or print their full name and sign in the spaces below. You can find additional family members' signature spaces in Item Numbers 7. - 10. below. All family members identified in Part 3. must sign and date Form I-912.

I certify that the information provided by the requestor in Part 7. applies to me.

Family Member's Name


Family Member 1

Family Member 2

7.

8.

Family Member's Signature Date of Signature (mm/dd/yyyy)




Family Member 3

Family Member 4

9.

10.



NOTE TO ALL REQUESTORS: If you do not completely fill out this request or fail to submit required documents listed in the Instructions, USCIS may deny your request.


Family Member 511.


Form I-912 04/25/16 Y Page 7 of 11

At my request, the preparer named in Part 10., , prepared this request for me based only upon information I provided or authorized.

2.

Family Member's Signature Date of Signature (mm/dd/yyyy)6.

Family Member's Signature

Family Member's Email Address (if any)5.

Family Member's Daytime Telephone Number 3. 4. Family Member's Mobile Telephone Number (if any)

Family Member's Contact Information


Family Member's Certification

Copies of any documents I have submitted are exact photocopies of unaltered, original documents, and I understand that USCIS may require that I submit original documents to USCIS at a later date. Furthermore, I authorize the release of any information from any of my records that USCIS may need to determine my eligibility for the immigration benefit I seek.

NOTE TO ALL FAMILY MEMBERS: If you do not completely fill out this request or fail to submit required documents listed in the Instructions, USCIS may deny your request.

I can read and understand English, and I have read and understand every question and instruction on this request and my answer to every question.

A.


Part 8. Family Member's Statement, Contact Information, Certification, and Signature

1.

The interpreter named in Part 9. read to me every question and instruction on this request and my answer to every B.question in , a language in which I am fluent, and I understood everything.


If the information provided by the requestor in Part 7. is not applicable to a family member identified in Part 3., (for example, the family member used an interpreter or speaks a different language) that individual should complete Part 8. USCIS rejects any Form I-912 that is not signed by all individuals requesting a fee waiver.

Family Member's Statement Regarding the Interpreter for

Family Member's Statement Regarding the Preparer for


Form I-912 04/25/16 Y Page 8 of 11

Interpreter's Daytime Telephone Number 6.

Interpreter's Email Address (if any)

Interpreter's Contact Information

8.

Interpreter's Certification

I am fluent in English and , which is the same language specified in Part 7., Item B. in Item Number 1., and I have read to this requestor in the identified language every question and instruction on this request and his or her answer to every question. The requestor informed me that he or she understands every instruction, question, and answer on the request, including the Applicant's Certification, and has verified the accuracy of every answer.

I certify, under penalty of perjury, that:

Interpreter's Signature Date of Signature (mm/dd/yyyy)9.

Interpreter's Signature

Interpreter's Mailing Address

5.

City or Town State ZIP Code

Street Number and Name Flr.Ste.Apt.

Postal Code CountryProvince

Number

Provide the following information about the interpreter for

NOTE for Family Members: If you used a different interpreter than the one used by the requestor, make additional copies of Part 9., provide the following information, indicate the family member for whom he or she interpreted, and include the pages with your completed Form I-912.

Interpreter's Family Name (Last Name) Interpreter's Given Name (First Name)3.

Interpreter's Business or Organization Name (if any)4.

Interpreter's Full Name

Interpreter's Mobile Telephone Number (if any) 7.

Part 9. Interpreter's Contact Information, Certification, and Signature Did any person filing this request use an interpreter? No (skip to Part 10.)Yes, (complete this section) 1.

Was the same interpreter used for all individuals requesting a fee waiver (as listed in Part 3.)? NoYes2.

Form I-912 04/25/16 Y Page 9 of 11

extends does not extend beyond the preparation of this request.I am an attorney or accredited representative and my representation of the requestor in this case

I am not an attorney or accredited representative but have prepared this request on behalf of the requestor and with the requestor's consent.

9.

Preparer's Statement

B.

A.

NOTE: If you are an attorney or accredited representative, you may be obliged to submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, or G-28I, Notice of Entry of Appearance as Attorney In Matters Outside the Geographical Confines of the United States, with this request.

5.




Preparer's Mailing Address

Number

Preparer's Daytime Telephone Number 6.

Preparer's Email Address (if any)8.

7. Preparer's Mobile Telephone Number (if any)

Preparer's Contact Information

Part 10. Contact Information, Declaration, and Signature of the Person Preparing this Request, if Other Than the Requestor

Provide the following information about the preparer for

NOTE for Family Members: If you used a different preparer than the one used by the requestor, provide the following information, and include the pages with your completed Form I-912.

Preparer's Family Name (Last Name) Preparer's Given Name (First Name)3.

Preparer's Full Name

Preparer's Business or Organization Name (if any)4.

Did any person prepare this request on your behalf? No, skipYes, (complete this section) 1.

Was the same preparer used for all individuals requesting a fee waiver (as listed in Part 3.)? NoYes2.

Form I-912 04/25/16 Y Page 10 of 11

Preparer's Certification By my signature, I certify, under penalty of perjury, that I prepared this request at the request of the requestor. The requestor then reviewed this completed request and informed me that he or she understands all of the information contained in, and submitted with, his or her request, including the Applicant's Certification, and that all of this information is complete, true, and correct. I completed this request based only on information that the requestor provided to me or authorized me to obtain or use.

Preparer's Signature Date of Signature (mm/dd/yyyy)10.

Preparer's Signature

Part 10. Contact Information, Declaration, and Signature of the Person Preparing this Request, if Other Than the Requestor (continued)

Form I-912 04/25/16 Y Page 11 of 11

Part 11. Additional InformationIf you need extra space to provide any additional information within this request, use the space below. If you need more space than what is provided, you may make copies of this page to complete and file with this request or attach a separate sheet of paper. Include your name and A-Number (if any) at the top of each sheet; indicate the Page Number, Part Number, and Item Number to which your answer refers.

A-Number (if any) ► A-

Page Number Part Number Item Number

D.

Family Name (Last Name) Given Name (First Name) Middle Name1.

2.

3.

D.

D.

D.

B. C.

Page Number Part Number Item Number4. B. C.



A.

A.

A.

A.

* These poverty guidelines remain in effect for use with Form I-912, Request for Fee Waiver, from January 26, 2017 until new guidelines go into effect in 2018.

For the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands:

Form I-912P 02/06/17 N

2017 HHS Poverty Guidelines*

Household Size 150% of HHS Poverty Guidelines*

For Alaska: For Hawaii:

1

2

3

4

5

6

7

8

$18,090

$24,360

$30,630

$36,900

$43,170

$49,440

$55,710

$61,980


1

2

3

4

5

6

7

8

$22,590

$30,435

$38,280

$46,125

$53,970

$61,815

$69,660

$77,505


1

2

3

4

5

6

7

8

$20,790

$28,005

$35,220

$42,435

$49,650

$56,865

$64,080

$71,295

2017 HHS Poverty Guidelines for Fee Waiver Request Department of Homeland Security


USCIS Form I-912P

Supplement

Page 1 of 1

Add $6,270 for each additional person.



Form I-942 12/23/16 Page 1 of 9

START HERE - Type or print in black ink.►

For USCIS

Use Only

Request Receipted At (Select only one box)

USCIS Field Office USCIS Service Center

Reduced Fee Approved

Date:______________

Reduced Fee Denied

Date:______________

Reduced Fee Approved

Date:______________

Reduced Fee Denied

Date:______________

Request for Reduced Fee Department of Homeland Security


USCIS Form I-942

OMB No.1615-0133 Expires 11/30/2018


1. Full Name

Part 1. Information About You (Requestor)

Provide information about yourself. If you are the legal guardian filing on behalf of a person with a physical disability or developmental or mental impairment, provide information about the person for whom you are filing this form.

Date of Birth (mm/dd/yyyy)2. 3. Alien Registration Number (A-Number)

Marital Status4.

Marriage AnnulledSingle, Never Married Married Divorced Widowed

Other (Explain)

Separated

► A-

Part 2. Information About Family Members Filing This Request With You1. In the table below, add the family members filing this request with you

Full Name A-Number (if any) Date of Birth Relationship to You

A-A-A-A-

Part 3. Household Income

Your Employment Status

Employment Status1.

Other (Explain)RetiredEmployed (full-time, part-time, seasonal, self-employed)

Unemployed or Not Employed

Form I-942 12/23/16 Page 2 of 9

Information About Your Spouse

2. If you are married or separated, does your spouse live in your household? Yes No

If you answered “No” to Item Number 2., does your spouse provide any financial support to your household?

A. Yes No

Part 3. Household Income (continued)

If you answered “Yes” to Item Number 3., type or print your name on the line marked “self” in the table below. If you answered “No” to Item Number 3., type or print your name on the line marked “self” in the table below and add the head of household's name on the line below yours.

Household Size

Full Name

Full-Time Student

Yes No

Yes No

Yes No

Yes No

Relationship to You

Date of Birth Married

Yes No

Yes No

Yes No

Yes No

Does Person Earn Income Counted Toward

Household Income?

Yes No

Yes No

Yes No

Yes No

Self

Total Household Size (including self)

4. Your Annual Income

5. Annual Income of All Household Members

Provide information about your income and the income of all family members counted as part of your household. You must list all amounts in U.S. dollars.

Your Annual Household Income

Provide the annual income of all family members counted as part of your household as listed above under Household Size in Item Number 3. (Do not include the amount provided in Item Number 4.)

6. Total Additional Income or Financial Support

Provide the total annual amount you receive in additional regular income or financial support from a source outside of your household. (Do not include the amount provided in Item Number 4. or 5.) You must add all of the additional income and financial support amounts that you regularly receive and put the total amount in the space provided. Type or print "0" in the total box if there is none. Select the type of additional income or financial support that you receive and provide documentation.

Parental Support

Spousal Support (Alimony)

Child Support

Educational Stipends

Royalties

Pensions

Other (Explain)Unemployment

Social Security Benefits

Veteran's Benefits

Financial Support From Adult Children, Dependents, Other People Living in the Household

7. Total Household Income (add the amounts from Item Numbers 4., 5., and 6.)

3. Are you the person providing the primary financial support for your household? Yes No

Your Household Size

Form I-942 12/23/16 Page 3 of 9

8. Has anything changed since the date you filed your Federal tax returns? (For example, your marital status, income, or number of dependents.)

Yes No

If you answered "Yes" to Item Number 8., provide an explanation below. Provide documentation if available.

At my request, the preparer named in Part 7.,

Requestor's Statement Regarding the Preparer2.

I can read and understand English, and I have read and understand every question and instruction on this request, and my answer to every question.

Part 4. Requestor's Statement, Contact Information, Certification, and Signature

A.

Requestor's Statement Regarding the Interpreter1.

NOTE: Select the box for either Item A. or B. in Item Number 1. If applicable, select the box for Item Number 2.

The interpreter named in Part 6. read to me every question and instruction on this request, and my answer to everyB., a language in which I am fluent,

and I understood everything.


Requestor's Daytime Telephone Number 3. 4. Requestor's Mobile Telephone Number (if any)

Requestor's Contact Information

Requestor's Email Address (if any)5.

Requestor's Statement

question in

Part 3. Household Income (continued)

,prepared this request for me based only upon information I provided or authorized.

Requestor's CertificationCopies of any documents I have submitted are exact photocopies of unaltered, original documents, and I understand that USCIS may require that I submit original documents to USCIS at a later date. Furthermore, I authorize the release of any information from any of my records that USCIS may need to determine my eligibility for the immigration benefit I seek.


Each person applying for a reduced fee must complete, sign, and date Form I-942 and provide the required documentation. This includes family members identified in Part 2., Item Number 1. Signature fields for family members are at the end of this part. A legal guardian may sign the request on behalf of the applicant. USCIS rejects any Form I-942 that is not signed by all individuals requesting a reduced fee and may deny a request that does not provide the required documentation. If the information provided by the requestor in Part 4. is not applicable to a family member identified in Part 2., that individual should complete Part 5.

Form I-942 12/23/16 Page 4 of 9

Part 4. Requestor's Statement, Contact Information, Certification, and Signature (continued)

Requestor's Signature

Requestor's Signature Date of Signature (mm/dd/yyyy)6.

I understand that USCIS may require me to appear for an appointment to take my biometrics (fingerprints, photograph, and/or signature) and, at that time, if I am required to provide biometrics, I will be required to sign an oath reaffirming that:

1) I reviewed and provided or authorized all of the information in my request;

2) I understood all of the information contained in, and submitted with, my request; and

3) All of this information was complete, true, and correct at the time of filing.


Family Members' SignaturesNOTE: Each family member must type or print their full name and sign in the spaces below. You can find additional family members' signature spaces in Item Numbers 7. - 10. below. All family members identified in Part 2., Item Number 1. must sign and date Form I-942.

I certify that the information provided by the requestor in Part 4. applies to me.



Family Member 1

Family Member 2

7.

8.





Family Member 3

Family Member 4

9.

10.



NOTE TO ALL REQUESTORS: If you do not completely fill out this request or fail to submit required documents listed in the Instructions, USCIS may deny your request.

Form I-942 12/23/16 Page 5 of 9

who is is not an attorney or accredited representative, preparing this request for me.I have requested the services of and consented to ,

2.

Family Member's Signature Date of Signature (mm/dd/yyyy)6.

Family Member's Signature

Family Member's Email Address (if any)5.

Family Member's Daytime Telephone Number 3. 4. Family Member's Mobile Telephone Number (if any)

Family Member's Contact Information

Copies of any documents I have submitted are exact photocopies of unaltered, original documents, and I understand that USCIS may require that I submit original documents to USCIS at a later date.

Family Member's Certification

I certify, under penalty of perjury, that the information in my request and any document submitted with my request were provided by me and are complete, true, and correct.

NOTE TO ALL FAMILY MEMBERS: If you do not completely fill out this request or fail to submit required documents listed in these Instructions, USCIS may deny your request.

I can read and understand English, and have read and understand every question, instruction, and answer on this request.A.


Part 5. Family Member's Statement, Contact Information, Certification, and Signature

1.

The interpreter named in Part 6. has also read to me every question, instruction, and answer on this request inB. , a language in which I am fluent. I understand

every question and instruction on this request as translated to me by my interpreter, and have provided complete, true, and correct responses in the language indicated above.

NOTE: Read the information on penalties in the Penalties section of the Form I-942 Instructions before completing this part.

If the information provided by the requestor in Part 4. is not applicable to a family member identified in Part 2., Item Number 1, (for example, the family member used an interpreter or speaks a different language) that individual should complete Part 5. USCIS rejects any Form I-942 that is not signed by all individuals requesting a reduced fee.

Family Member's Statement Regarding the Interpreter for:

Family Member's Statement Regarding the Preparer for:

Form I-942 12/23/16 Page 6 of 9

Part 6. Interpreter's Contact Information, Certification, and Signature

Provide the following information about the interpreter.

Interpreter's Family Name (Last Name) Interpreter's Given Name (First Name)3.

Interpreter's Business or Organization Name (if any)4.

Interpreter's Full Name

Interpreter's Mailing Address

5.




Number

Interpreter's Daytime Telephone Number 6.

Interpreter's Email Address (if any)

Interpreter's Contact Information

8.

Interpreter's Mobile Telephone Number (if any) 7.

Did any person filing this request use an interpreter? Yes, (complete this section). No, (skip to Part 7.)1. Yes No

Was the same interpreter used for all individuals requesting a reduced fee (as listed in Part 2.)2. Yes No

NOTE for Family Members: If you used a different interpreter than the one used by the requestor, make additional copies of Part 6., provide the following information, indicate the family member for whom he or she interpreted, and include the pages with your completed Form I-942.

Interpreter's Certification

I am fluent in English and

I certify, under penalty of perjury, that:

specified in Part 4., Item B. in Item Number 1., and I have read to this requestor in the identified language every question and instruction on this request and his or her answer to every question. The requestor informed me that he or she understands every instruction, question, and answer on the request, including the Requestor's Certification, and has verified the accuracy of every answer.

, which is the same language

Interpreter's Signature

Interpreter's Signature Date of Signature (mm/dd/yyyy)9.

Form I-942 12/23/16 Page 7 of 9

Part 7. Contact Information, Declaration, and Signature of the Person Preparing this Request, if Other Than the Requestor

Provide the following information about the preparer.

Preparer's Family Name (Last Name) Preparer's Given Name (First Name)3.

Preparer's Full Name

Preparer's Business or Organization (if any)4.

5.




Preparer's Mailing Address

Number

Preparer's Daytime Telephone Number 6.

Preparer's Email Address (if any)8.

7. Preparer's Mobile Telephone Number (if any)

Preparer's Contact Information

Did any person prepare this request on your behalf? Yes, (complete this section). No, (skip).1. Yes No

Was the same preparer used for all individuals requesting a reduced fee (as listed in Part 2.)2. Yes No

NOTE for Family Members: If you used a different preparer than the one used by the requestor, provide the following information, and include the pages with your completed Form I-942.

Preparer's Statement

extends does not extend beyond the preparation of this request. I am an attorney or accredited representative and my representation of the requestor in this case

I am not an attorney or accredited representative but have prepared this request on behalf of the requestor and with the requestor’s consent.

9.

B.

A.

NOTE: If you are an attorney or accredited representative, you may be obliged to submit a completed Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, or G-28I, Notice of Entry of Appearance as Attorney In Matters Outside the Geographical Confines of the United States, with this request.

Form I-942 12/23/16 Page 8 of 9

Preparer's Certification By my signature, I certify, under penalty of perjury, that I prepared this request at the request of the requestor. The requestor then reviewed this completed request and informed me that he or she understands all of the information contained in, and submitted with, his or her request, including the Requestor's Certification, and that all of this information is complete, true, and correct. I completed this request based only on information that the requestor provided to me or authorized me to obtain or use.

Preparer's Signature Date of Signature (mm/dd/yyyy)8.

Preparer's Signature

Part 7. Contact Information, Declaration, and Signature of the Person Preparing this Request, if Other Than the Requestor (continued)

Form I-942 12/23/16 Page 9 of 9

Part 8. Additional InformationIf you need extra space to provide any additional information within this request, use the space below. If you need more space than what is provided, you may make copies of this page to complete and file with this request or attach a separate sheet of paper. Type or print your name and A-Number (if any) at the top of each sheet; indicate the Page Number, Part Number, and Item Number to which your answer refers.

A-Number (if any) ► A-

Page Number Part Number Item Number

D.

Family Name (Last Name) Given Name (First Name) Middle Name1.

2.

3.

D.

D.

D.

B. C.




A.

A.

A.

A.

*Use these poverty guidelines for Form I-942, Request for Reduced Fee, from January 26, 2017 until new guidelines go into effect in 2018.

For the 48 Contiguous States, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, and the Commonwealth of the Northern Mariana Islands:

Form I-942P 02/06/17 N

2017 Annual HHS Poverty Guidelines*


For Alaska: For Hawaii:

1

2

3

4

5

6

7

8

+8

$18,090

$24,360

$30,630

$36,900

$43,170

$49,440

$55,710

$61,980

Household Size 150% 1

2

3

4

5

6

7

8

+8

$22,590

$30,435

$38,280

$46,125

$53,970

$61,815

$69,660

$77,505

Household Size 150% 1

2

3

4

5

6

7

8

+8

$20,790

$28,005

$35,220

$42,435

$49,650

$56,865

$64,080

$71,295

Income Guidelines for Reduced Fees Department of Homeland Security


USCIS Form I-942P

Supplement

Page 1 of 1




200% of HHS Poverty Guidelines*

$24,120

$32,480

$40,840

$49,200

$57,560

$65,920

$74,280

$82,640


HHS Poverty Guidelines*

200% $30,120

$40,580

$51,040

$61,500

$71,960

$82,420

$92,880

$103,340Add $10,460 for each

additional person.

HHS Poverty Guidelines*

200% $27,720

$37,340

$46,960

$56,580

$66,200

$75,820

$85,440

$95,060


To qualify for a reduced fee, documented annual household income must be greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines at the time of filing.

Department of Homeland Security U.S. Citizenship and Immigration Services

OMB No. 1615-0060; Expires 03/31/2017

Form N-648, Medical Certification for Disability Exceptions

ALL parts of this form, except the "APPLICANT ATTESTATION" and "INTERPRETER'S CERTIFICATION" must be certified by a licensed medical professional as provided in the instructions for Form N-648. Before certifying this form, the medical professional must conduct an in-person examination of the applicant. (See instructions for Form N-648 for additional information which is also located in the "FORMS" section at www.uscis.gov.)

Reminder About Eligibility Requirements

This form is intended for an applicant who seeks an exception to the English and/or civics requirements due to a physical or developmental disability or mental impairment that has lasted, or is expected to last, 12 months or more. An applicant who with reasonable accommodations provided under the Rehabilitation Act of 1973 can satisfy the English and civics requirements does not need to submit this form. Reasonable accommodations include, but are not limited to, sign language interpreters, extended time for testing, and off-site testing.

Completing and Certifying This Form

All questions or items must be answered fully and accurately. Responses should utilize common terminology, without abbreviations, that a person without medical training can understand. U.S. Citizenship and Immigration Services (USCIS) recommends that the certifying medical professional use the electronic Form N-648 located in the "FORMS" section www.uscis.gov. If the medical professional completes the form by hand, then responses must be legible and appear in black ink.

Part I. APPLICANT INFORMATION

Address (Street Number and Name)

Middle NameFirst Name USCIS A-Number

City

U.S. Social Security Number

Telephone Number

Zip Code or Postal Code

Gender

State or Province

Date of Birth

Last Name

E-Mail Address (if any)

USCIS USE ONLY

This N-648 is:

SufficientInsufficientContinued/RFE

Reviewer

Location & Date

I certify that I have examined:

Part II. MEDICAL PROFESSIONAL INFORMATION

1. Currently licensed as a (Check all that apply): Medical Doctor Doctor of Osteopathy Clinical Psychologist

2. Medical practice type:

Business Address (Street Number and Name) City Telephone Number

License Number Licensing State E-Mail Address (if any)

State or Province Zip Code or Postal Code

FemaleMale

A-

NOTE: Only medical doctors, doctors of osteopathy, or clinical psychologists licensed to practice in the United States (including the U.S. territories of Guam, Puerto Rico, and the Virgin Islands) are authorized to certify the form. While staff of the medical practice associated with the medical professional certifying the form may assist in its completion, the medical professional is responsible for the accuracy of the form's content.

Type or print clearly in black ink. If you need more space to complete an answer, use a separate sheet of paper. Write the applicant's name and Alien Registration Number (A-Number), at the top of each sheet of paper and indicate the part and number of the item to which the answer refers. You must sign and date each continuation sheet. You must answer and complete each question since USCIS will not accept an incomplete Form N-648. You may, but are not required to, attach to this completed form supportive medical diagnostic reports or records regarding the applicant.

Type or print clearly in black ink.

Middle NameFirst NameLast Name

Form N-648 03/11/15 Y Page 1

Applicant's Name USCIS A-Number

3. Date you first examined the applicant regarding the condition(s) listed in number 1.

Date (mm/dd/yyyy) Location (if different from business address on Page 1; otherwise write "same as business address")

4. Date you last examined the applicant regarding the condition(s) listed in number 1, if different from above.

Part III. INFORMATION ABOUT DISABILITY and/or IMPAIRMENT(S)

5. Are you the medical professional regularly treating this applicant for the condition(s) listed in Item Number 1?

Yes (If "Yes," indicate duration of treatment.)

No (If "No," provide the name of the applicant's regularly treating medical professional on the next page and explain why you are certifying this form instead of the regularly treating medical professional.)

1. Provide the clinical diagnosis and DSM IV code (if applicable) of the applicant's disability and/or impairment(s) that form the basis for seeking an exception to the English and/or civics requirements; e.g., "DSM-IV 318.0 Down syndrome". If you cannot provide a DSM IV code, write "N/A" and explain why you cannot provide a DSM IV code.

2. Provide a basic description of the disability and/or impairment(s), e.g., "Down syndrome is a genetic disorder that causes lifelong intellectual disability (also referred to as mental retardation), developmental delays, and other problems."

A-

Date (mm/dd/yyyy) Location (if different from business address on Page 1; otherwise write "same as business address")

Years Months

Form N-648 03/11/15 Y Page 2

6. Has the applicant's disability and/or impairment(s) lasted, or do you expect it to last, 12 months or more?

7. Is the applicant's disability and/or impairment(s) the result of the applicant's illegal use of drugs?

Name of Regularly Treating Medical Professional and Address.


A-

Business Address (Street Number and Name) City Telephone NumberState or Province Zip Code or Postal Code


Explanation

Yes (If "Yes,"continue to complete this form.)

No (If "No," the applicant is not eligible for this exception and you need not complete the remainder of the questions. Please go directly to the "Medical Professional's Certification.")

Yes (If "Yes," the applicant is not eligible for this exception and you need not complete the remainder of the questions. Please go directly to the "Medical Professional's Certification.")

No (If "No," continue to complete this form.)

8. What caused this applicant's medical disability and/or impairment(s) listed in number 1, if known?

Form N-648 03/11/15 Y Page 3

10. Clearly describe how the applicant's disability and/or impairment(s) affect his or her ability to demonstrate knowledge and understanding of English and/or civics.

11. In your professional medical opinion, does the applicant's disability or impairment(s) prevent him or her from demonstrating the following requirements? (Check all that apply. If none applies, the applicant is not eligible for this exception.)

The ability to:


A-

9. What clinical methods did you use to diagnose the applicant's medical disability and/or impairment(s) listed in number 1?

Read English

Write English

Speak English

Answer questions regarding United States history and civics, even in a language the applicant understands.

Form N-648 03/11/15 Y Page 4

Additional Comments (Optional)

12. Was an interpreter used during your examination of the applicant?

Licensed Medical Professional Signature

I certify that this applicant's identity has been verified through the following United States or State government-issued photographic identity document:

Complete the following if an interpreter was not used during your examination of the applicant between the applicant and medical professional pertaining to the examination(s) that form the basis of this Form N-648 certification.

I certify, under penalty of perjury under the laws of the United States of America, that the information on this form and any evidence submitted with it are all true and correct. I will furnish relevant medical records to USCIS, if requested to do so by USCIS, based on the applicant's consent. I am aware that the knowing placement of false information on Form N-648 and related documents may also subject me to criminal penalties including under Title 18, U.S.C. Section 1546, civil penalties under Title 18, U.S.C. Section 247c of the Immigration and Nationality Act, and civil license suspension or revocation by the appropriate authorities.

MEDICAL PROFESSIONAL' S CERTIFICATION

I am fluent in English and , the language spoken by this patient. Therefore, an interpreter was not used during my examination(s) of this applicant.

All medical professionals must complete the certification below.


A-

Yes (If "Yes," the interpreter must complete the "Interpreter Certification" section.)

No

Permanent Resident Card

Other Identification (State type and ID Number):

State ID Number:

Date (mm/dd/yyyy)

Form N-648 03/11/15 Y Page 5

APPLICANT (PATIENT) ATTESTATION/RELEASE OF INFORMATION

to release to U.S. Citizenship and Immigration Services all relevant physical and mental health information related to my medical status for the purpose of applying for an exception from the English language and U.S. civics requirements for naturalization. I certify under penalty of perjury, pursuant to Title 28, U.S.C. Section 1746, that the information I provided to the medical professional is true and correct. I am aware that the knowing placement of false information on Form N-648 and related documents may also subject me to civil penalties under Title 8, U.S.C. Section 1324c. I understand that if this form is not completely filled out or if I fail to submit any required documentation, I may not be found eligible for the requested disability exception.

I, , authorize(Applicant's Name) (Licensed medical doctor, doctor of osteopathy, or clinical psychologist)

An interpreter must complete, and certify, the section below if an interpreter translated communications between the applicant and medical professional on the day of the examination that formed the basis of this Form N-648 certification.

INTERPRETER'S CERTIFICATION

Interpreter Information

Interpreter Certification


A-

Address (Street Number and Name) City State or Province Zip Code or Postal Code


Was a phone interpreter used?

Yes (If yes, the interpreter is not required to complete the information below.)

No (If no, the interpreter is required to complete the information below.)

I am fluent As the interpreter, I certify that I am fluent in English and the following language: . I further certify that I have accurately and completely translated all communications between the medical professional and the applicant that

occurred on , the date(s) of the examination(s) that form the basis of this certification.

Interpreter Signature Date (mm/dd/yyyy)

Applicant or Applicant's Authorized Representative Signature Date (mm/dd/yyyy)

Form N-648 03/11/15 Y Page 6

1

N-648 Medical Certification: Helping Doctors Get It Done!

Part 1 – An Introduction

1. What is an N-648 and why do I have to do it?

2. Who is eligible for a disability waiver?

Part 2 – The Form Itself

3. What do I need to include to get the form DONE?

4. What needs to be included in Question 2?

5. What are good examples of answers to Question 2?

6. What needs to be included in the answer to Question 10?

7. What are good examples of how to answer Question 10?

Part 3 – Special Circumstances

8. Can an elderly applicant qualify for an N-648 on the basis of old age alone?

9. What if my patient is illiterate in his/her native language?

10. Can an applicant qualify for an N-648 on the basis of a physical disability?

11. What about effects of medication?

– This guide is found on-line at https://nwjustice.org/N648.html#4 –

https://nwjustice.org/N648.html#1












2

PART 1 - AN INTRODUCTION

1. What is an N-648 and why do I have to do it?

The N-648 is the disability waiver that exempts applicants for U.S. citizenship from (1) demonstrating they can speak, read, and write English, and/or (2) passing a test of U.S. history and civics. With a waiver, the applicant can have the interview in his/her native language and will not have to answer questions about U.S. history and government. U.S. Citizenship and Immigration Services (USCIS) relies on the medical opinion of the applicant’s doctor in deciding whether to grant the waiver. USCIS generally makes a decision as to whether to grant or deny citizenship at the naturalization interview.

As the patient’s physician (M.D., D.O., licensed clinical psychologist), you are the only one who can complete the N-648 for your patient and get him/her through this process! Your staff members can help, but you must sign the form. As frustrating as it is, there are no doctors at USCIS to evaluate your patient or interpret your medical terminology. The best thing you can do to help your patient is to use clear, plain language and remember that USCIS has no expertise in medicine and is looking for certain bits of information, as described below. USCIS officers are not looking to do your patient any favors and will review the form with a skeptical eye. (Often if they see similar language from one form to another they may suspect fraud.) Finally, N-648 forms submitted by qualified applicants are rejected every day purely because they do not contain enough information from the physician.

Note: The doctor completing the N-648 must have the appropriate expertise to diagnose the named disability/ies. If you are not a specialist in the field of the patient’s disability, you should have training, experience or other qualifications to assess such disability. Sometimes, because the regular treating physician has no such training or qualification, a specialist may complete the form. Then, he will need to briefly the reason and the plan of treatment.(Question #5)

2. Who is eligible for a disability waiver?

The applicant must have a medically determinable physical or developmental disability or mental impairment that causes the applicant to be unable to learn English and/or U.S. history and civics.

The disability is expected to last at least 12 months. (Question #6) The disability is not the result of illegal drug use. (Question #7)

PART 2 - THE FORM ITSELF

3. What do I need to include to get the form DONE?

Just Remember:

D iagnosis O rigin

3

N exus E ffect

You must include each element of DONE in order to successfully complete the form for your patient:

1. DIAGNOSIS: The nature of the illness or disability described in lay terms, as if you are describing it to a middle school student.

2. ORIGIN: The origin of the disability or illness described in lay terms. 3. NEXUS: the specific symptoms associated with the disability or illness that make

it impossible for the applicant to learn English and/or U.S. Civics. 4. EFFECT: your conclusion that the applicant cannot learn English and/or U.S.

Civics.

In addition:

Provide specific examples of the way in which your patient’s symptoms affect cognitive functioning. Clearly state whether the disability affects the patient’s ability to learn English, civics, or both.

Use clear and unequivocal language, e.g. “As a result of his disabilities, Mr. X will not be able to learn English or civics sufficiently to pass the citizenship exam.” Note: Medicine is, of course, probabilistic by nature, and you may feel that it goes against your natural grain as a physician to state a prognosis in definitive terms. However, by using clear and unequivocal language, such as the statement above, you are telling the USCIS officer that you are reasonably certain of the patient’s condition and prognosis.

4. What needs to be included in the answer to Question #2?

“Provide a basic description of the disability and/or impairment(s).”

You must include:

• (a) A layperson’s description of the applicant’s disability and the origin of the disability, including the severity and duration, if known. Try to use simple language, as if you are explaining the diagnosis to a middle school student.

(b) A clear explanation of how the diagnosis was made, including a list of any applicable laboratory or clinical tests administered and their rules (e.g., Mini Mental State Examination, Magnetic Resonance Imaging, clinical history and interviews). If no tests were used, please explain why not medically appropriate.

• (c) A description of the medication(s) and treatment plan that the patient has received or will receive for the condition and whether or not such medication and treatment have improved or will improve the patient’s ability to learn.

• (d) A DSM-IV diagnostic code is required for mental impairments.

http://allpsych.com/disorders/disorders_dsmIVcodes.html

4

5. What are good examples of answers to Question #2?

Example 1: Clinical Diagnosis

POST TRAUMATIC STRESS DISORDER AND DEPRESSION: Ms. D suffers from major depression, recurrent and severe, with a history of suicidal ideation resulting in multiple in-patient psychiatric hospitalizations. Ms. D currently receives medication and treatment for depression to control the desire to harm herself. She does not pose a threat to others. She also has been diagnosed with Post Traumatic Stress Disorder related to war trauma in Bosnia which persists through nightmares and flashbacks.

DEMENTIA: The patient has severe dementia. Dementia is the loss of intellectual functioning which is significant enough to interfere with daily life. It is not caused by depression or mental illness. It progressively worsens over time and is irreversible. It is present in Ms. N. in the form of forgetfulness, impairments in understanding, reasoning, learning and language.

MULTIPLE SCLEROSIS: The patient has severe, advanced multiple sclerosis. Multiple sclerosis is a degenerative disease of the nerves in the brain and spinal cord. Because of the damage to these nerves, the patient has severe dementia, she is mute, she must use a wheelchair to move around, and she is incontinent of urine. Her memory, concentration and judgment are severely impaired.

BIPOLAR DISORDER: Bipolar II Disorder is characterized by periods of major depression and periods of hypomania during which the patient has problems of thought disorder and difficulty learning, trouble with memory, and intrusive thoughts coming to her which block her thinking and ability to plan. The patient has had intermittent trouble mot of her adult life interfering with work and school.

DEPRESSION: Major Depressive Disorder. Patient feels depressed most of the time. She is disinterested in things. She also gets very anxious and worried. This interferes with her functioning. She has great problems with concentration.

Example 2: Diagnostic Techniques

Patient’s depression and Post Traumatic Stress Disorder (PTSD) were diagnosed through clinic and interviews and there are no specific imaging or blood tests that can be done. Instead, tests have been done to rule out a physical cause for her memory problems, insomnia and chronic fatigue. She has been taking anti-depressants since July 2007 but they have not improved her memory. Treatment has included Zoloft.

Mr. D’s Alzheimer’s Dementia and Depression was diagnosed through clinical interview, history and neuro psych testing. The patient scores 15/30 on a Folstein’s cognitive exam showing clear moderate to severe memory loss. He is treated with Sertaline 125 mg for depression-this medicine will not improve his ability to learn.

Example 3: DSM-IV Diagnostic Code

DSM IV 296. 33 – Major Depressive Disorder, Recurrent; 309.81 – Post Traumatic Stress Disorder

DSM IV 294.8 DSM IV 294. 11 DSM IV 296.89.

5

DSM IV 296.33 – Major Depressive Disorder, Recurrent.

6. What needs to be included in the answer to Question #10?

“Clearly describe how the applicant’s disability and/or impairment(s) affect his/her ability to demonstrate knowledge and understanding of English and/or civics.”

You must include:

A detailed nexus between the symptoms of the applicant’s disability/ies and their impact on learning and retaining new material or demonstrating knowledge (e.g. “My patient’s severe depression causes inability to concentrate and interferes with cognition.”). You may include severity and duration information here as well. Below is a list of symptoms relevant to showing a connection between the applicant's ability to learn or demonstrate knowledge of English and/or civics:

> Memory impairment: inability to learn new information or to recall previously learned information

> Disturbance in executive functioning, which involves planning, organizing, sequencing and abstracting

> Difficulties with concentration and focus

> Delirium, disorientation, confusion, agitation

> Difficulty in expressing herself or in understanding what is said to her (expressive/ receptive communication disorders)

> Painful or medically fragile condition which impairs concentration and prevents the patient from leaving home to attend English or civics classes

> Fatigue, loss of energy or a sense of hopelessness (often associated with depression) which impairs concentration and prevents the patient from leaving home to attend English or civics classes

> Paranoia, hostility, anxiety and/or delusions which prevent the patient from expressing what he knows or has learned

> Unpredictable behavior in response to stress and anxiety (which may be a result of post-traumatic stress disorder or other anxiety disorders) so that the patient cannot perform in a testing, classroom or interview/interrogation setting

> Low intellectual functioning and/or learning disabilities that affect reading and writing ability

• The area of the brain affected by the disability/ies. If not applicable, explain why.

6

• A strong concluding statement as to the effect of the patient’s disability/condition, stating that because of the disability, s/he is unable to learn enough English and U.S. civics for the exam (“difficulty learning” is not sufficient).

7. What are good examples of how to answer Question #10?

Example: Congestive Heart Failure

Mrs. A has congestive heart failure, atherosclerosis and high blood pressure. As a result of these conditions, Mrs. A has symptoms of extreme fatigue, recurrent pneumonia and debilitating headaches. Long-term high blood pressure and high cholesterol affected this patient’s brain vessels which compromise oxygen supply to brain tissue, causing short attacks of neurological deficit and long-term generalized declining memory. As a result of her fatigue, frequent illness and headaches, she cannot attend English language or U.S. history and civic classes, and does not have the stamina to study on her own. Moreover, her fatigue and headaches make it impossible for her to concentrate enough to learn a new language or to memorize new information. Mrs. A is unable to pass the written or spoken English tests or the U.S. history and civics test in order to naturalize.

Example: Dementia

The dementia and stroke significantly affect this patient’s physical and cognitive ability. Patient has short as well as long term memory deficits. She is not able to distinguish recent events from long past events. She is not able to communicate her needs without prompting, nor is she able to answer complex or complicated questions or make deUSCISions for herself. She does not have the mental or cognitive capacity to learn, speak or write the English language; and would not be able to memorize information or answer about government and history (civics) sufficient to pass the USCIS citizenship test. She is able to speak 2-3 English words and could speak her dialect in a limited way. Overall, she speaks very little as a result of her stroke and dementia.

Example: Side Effect of Treatment

Poor health is aggravated by multiple medical problems, of which most severe is end-stage metastatic endometrial carcinoma. Patient recently had several courses of chemotherapy. Cancer treatment leaves her extremely fatigued, to the point where she is often bed-ridden and is too ill to concentrate to study. Clinical interviews show that she has serious problems with executive functioning, such as planning and organizing information. As the result of her medical conditions, she will be unable to learn English and U.S. history/civics to pass the naturalization exam.

PART 3 – SPECIAL CIRCUMSTANCES

8. Can an elderly applicant qualify for an N-648 on the basis of old age alone?

No. Old age in itself is not a qualifying disability for purposes of the disability waiver. However, elderly applicants who suffer from age-related impairments that do impair learning (e.g. depression, dementia, or strokes) may be eligible for a waiver. In such cases,

7

it is important to stress that the inability to learn is as a result of the medically determinable disability or mental impairment and not simply old age.

9. What if my patient is illiterate in his or her native language?

The USCIS will not approve a waiver for applicants unable to learn solely on the basis of illiteracy in their native language. In many cases, however, the applicant's illiteracy is causally connected to his or her disability. For example, the illiteracy may be the result of previously undiagnosed developmental delay, particularly if the applicant is from a country with few or no special education programs. Your answer should stress that the underlying disability is the primary cause of the applicant's inability to learn English and/or the civics materials.

10. Can an applicant qualify for an N-648 on the basis of a physical disability?

An applicant with physical disabilities will only be approved for a waiver if the disability or accompanying symptoms affect his or her ability to learn or demonstrate knowledge. For example, illness may be accompanied by pain, fatigue, or nausea, which impair concentration and may prevent the patient from attending classes.

Generally speaking, N-648s are only approved if deafness or blindness is accompanied by another disability and the deafness or blindness compounds that disability. As such, being blind or deaf is not a per se disability that prohibits learning. USCIS will be looking for ways that a deaf or blind individual can be accommodated in order to learn English and civics. If there is no accommodation that could possibly be made for your patient such that they could learn, you must explicitly explain why.

o If a patient is blind, USCIS will waive the writing requirement, but will expect the applicant to learn English orally. If a blind patient cannot learn English or civics due to their disabilities, you must explain why the patient cannot learn through audio tapes at home or by attending classes where information is presented verbally.

o If a patient is deaf, USCIS will want to know whether hearing aids improve the patient’s hearing enough to allow them to hear and speak. If not, USCIS will offer to use a sign language interpreter during the interview or perform the interview in writing. Careful explanation must be given as to why a deaf patient cannot learn, if that is the case, even if accommodated in these ways.

Example Answer to Question #10:

“Chronic Obstructive Pulmonary Disease and severe asthma limit this man’s total function where he cannot walk a flight of stairs or walk a half block. Most of the time he uses all his concentration and focus on just being able to breathe. He has severe visual impairment requiring corrective lenses. With this aid, he can only read for brief periods of time. He has a hearing deficit diagnosed by audiogram 2-2-02 that demonstrated a progressive type disorder that is not very responsive to hearing aids. This is partly because of the difficulty to keep the aid in adjustment to meet the continued deterioration. This man was referred to me to see if he had a mental disorder affecting his ability to learn. I was unable to define such a problem, but instead found a man with many severe

8

medical problems that affect his ability to perceive and understand his world. His permanent hearing deficit that is not correctable interferes with his ability to understand sounds and words, even in his native language. This is then complicated by severe visual defect that is not compensated by glasses. This is then complicated by his pulmonary disease that restricts his ability to leave home and requires him to use energy to focus on breathing. All of this permanent loss of function will prevent this man from being able to learn English, history or civics to pass any examination.”

11. Effects of Medication

The medication or treatment for a condition may affect vision, cause drowsiness or nausea or have other side effects that prevent the patient from the physical act of attending classes and studying. If this is the case, please note this in your answer to Question 10. The DSM- IV code for Adverse Effects of Medication NOS is 995.2. Additionally, if medication is not likely to improve a patient’s condition to the point where they could be capable of learning English and/or civics, it is useful to state this clearly (e.g. “patient has end stage disease and no treatment is available” or “there is no medication that will improve the patient’s cognitive ability”).

of 2

ALERT: New Requirements for Form N-648

The United States Citizenship and Immigration Services has issued a new policy

guidance on adjudication of disability waiver applications. A great deal of information

that is not specifically asked for on the form N-648 needs to be provided. If this

information is lacking, the N-648 will be rejected and the USCIS may ask for a new N-

648, your patient’s complete medical records, or both.

NEW REQUIREMENTS:

- The Form N-648 must contain an explanation of the origin, nature, and extent of

the medical condition(s) that qualify your patient for a disability waiver.

- You must provide a description of how the patient’s illness manifests itself and affects

the patient’s memory, understanding and ability to learn, using examples specific to

each patient (i.e. the patient cannot recall important events, cannot repeat a short story

after five minutes, forgets to take her medicine, etc.).

- You must provide a thorough explanation of how the disability or impairment was

diagnosed, with a list of what medically acceptable clinical or laboratory

diagnostic tests were used.

- Provide an explanation of all diagnostic test results. If, for example, a patient

scored 20 points out of the possible 30 points on the Mini-Mental Status Examination,

you must explain the significance of such results.

- If no diagnostic tests were taken, explain how the diagnosis was reached and why

diagnostic testing was inappropriate.

OTHER HELPFUL HINTS FOR PHYSICIANS:

- A disability waiver of educational requirements for naturalization is only for those

applicants who are completely unable to take the test. If your patient would have

difficulty taking the naturalization test but, under certain conditions, will be able to

pass it, he/she has the option of requesting an accommodation to the naturalization

testing procedures due to a disability. For example, extra testing time or written

testing may be granted to some applicants as an accommodation to their disability. In

this situation, you just need to write a letter in support of your patient’s request for an

accommodation, state the diagnosis, and explain why the accommodation is needed.

- General practitioners can certify a disability waiver based on a mental impairment if

the practitioner has “appropriate experience and qualifications that will enable him/her

to diagnose and assess the claimed disability.” You must provide an explanation as to

your qualifications on the N-648, for example, in response to question 8.

of 2

- You must draw a detailed nexus (connection) between the patient’s illness and his/her

inability to learn English and history/civics. Explain how the illness functions and

progresses within the body, and how the illness or disability has so impaired the

applicant’s functioning that he or she is unable to learn or demonstrate knowledge of

English and/or U.S. history and government.

- If your patient suffers from a mental impairment with psychotic features, please

indicate if he/she is a danger to him/herself and/or others.

- If you are not a psychiatrist, there is no need to use the multi-axial assessment.

Additionally, the DSM-IV codes are only necessary for mental impairment diagnoses.

If the waiver is based only on a physical impairment or illness (e.g. stroke) write

“N/A” in Question 2(b).

- State whether the patient is capable of understanding and taking the Oath of

Allegiance.

MOST COMMON REASONS FOR REJECTIONS:

1) No nexus made between the disability and ability to learn. There cannot merely be a

diagnosis given and one line explaining the patient's inability to learn.

2) Timeliness of the N-648. USCIS will not accept an N-648 that is written more than

six months after the last medical exam.

3) N-648’s will be viewed in conjunction with the N-400. So, if the N-648 states the

person is too disabled to work, but the N-400 lists that the person is working, the

applicant will be questioned on that issue.

4) Inconsistencies between the person's appearance at the interview and the N-648's

description of symptoms.

5) Vague language on the form. It should specify testing done, diagnosis, prognosis,

and nexus between the disability and ability to learn.

6) There MUST be language in the form that states that it is ‘medically determined

that the patient is incapable of learning’ and not merely that the applicant has

difficulty, is delayed, etc. Applicant must be INCAPABLE of learning.

– The information in this ALERT was provided by HIAS and the CUNY Citizenship & Immigration Project –