By Elsie Hui Arias, Esq. and Robert L. Reeves, Esq.
As everyone is aware, U.S. citizenship grants innumerable benefits and privileges, including priority in petitioning certain family members for immigrant visas, the right to vote, and immunity from deportation/removal from the United States. Most people understand that U.S. citizenship can be claimed by persons born in the United States and through naturalization, a complex process discussed in a prior article in this column. However, there are other lesser-known but notable routes to establishing U.S. citizenship in the Immigration and Nationality Act (INA).
Birth Outside the United States – Acquisition of U.S. Citizenship
Children born to U.S. citizens outside of the United States can claim U.S. citizenship if they meet certain requirements. Immigration laws regarding acquisition of U.S. citizenship have changed over the years, so whether an individual can claim U.S. citizenship through a U.S. citizen parent depends on when and where that individual was born, whether the U.S. citizen parent lived in the United States and for what time period, etc. For example, a child born today outside the United States to two U.S. citizen parents is considered a U.S. citizen, so long as at least one of the parents has resided in the United States, at any age, prior to the birth of the child.
However, claiming U.S. citizenship through a U.S. citizen parent can become complex where the child is illegitimate (born out of wedlock); the requirements differ vastly where the U.S. citizen parent is the mother or the father. Another complicated issue can arise where the U.S. citizen parent is deceased and cannot testify in support of the child’s application for a U.S. citizenship certificate or passport; persuasive and valid documentary evidence will be very important in this aspect. Additionally, if a retention requirement was initially imposed on the child (a requirement has since been revoked), and a U.S. Embassy determined that the child “lost” U.S. citizenship for failure to fulfill the retention requirement, the child can reacquire U.S. citizenship by proving that he or she meets the requisite conditions and taking an oath of allegiance before the appropriate government official.
Derivative U.S. Citizenship through U.S. Citizen Parent
Children who meet certain requirements can automatically derive U.S. citizenship under the Child Citizenship Act of 2000 (CCA), which went into effect on February 27, 2001. The CCA provides that natural-born and adopted children who are under the age of 18, admitted to the United States as lawful permanent residents, and in the physical and legal custody of a U.S. citizen parent, are U.S. citizens as an operation of the law.
Naturalization of Foreign-Born Children Residing Outside the U.S.
If a child does not meet the requirements for acquisition or derivation of U.S. citizenship, he or she may still be eligible to apply for a certificate of citizenship through the U.S. Citizenship and Immigration Services. The INA permits the naturalization of a child through an application filed by the citizen parent where the child did not acquire U.S. citizenship at birth and is residing abroad. In this case, the U.S. citizen parent or grandparent must meet the requisite physical presence requirement, the child must reside in a foreign country but be in the U.S. temporarily pursuant to a lawful admission, and the child is under the age of 18 years, and in the proper custody of the U.S. citizen parent.
As one can see from this article, there are other means to obtain U.S. citizenship other than birth in the U.S. or naturalization. Because the immigration laws concerning naturalization and citizenship are complex, persons interested in these issues should consult a qualified immigration attorney who is knowledgeable and experienced in handling such matters.