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ARE YOU A U.S. CITIZEN?
by Michael J. Gurfinkel, Esq.
If you were born outside the U.S., to
a U.S. citizen parent, in some cases, you could be considered
a U.S. citizen at birth. This depends on the year you were born,
the marital status of your parents, and whether you and your citizen
parent meet the applicable "transmission" and "retention"
requirements.
There are a number of requirements and factors that
must be taken into account in order for a child of a U.S. citizen
to be considered a U.S. citizen at birth. These would include:
1. The child's date of birth. The date of
birth is important because it determines whether their parent
is qualified to automatically transmit citizenship to the
child, and also determines the requirements for the child to retain
citizenship.
2. Whether their parent meets the appropriate requirements
to transmit citizenship to their child. For example, if
the child was born before May 24, 1934 to a US citizen parent
and a non-citizen parent, the child could acquire citizenship
if either father or mother was a US citizen, and the US citizen
parent resided in the US before the child's birth.
3. Whether the child meets the applicable requirements
to retain citizenship. For example, if a legitimate child was
born after December 24, 1952 but before November 14, 1986 to a
US citizen parent and an alien parent, the child can retain US
citizenship if the citizen parent had been physically present
in the US for ten years, five of which were after the age of 14.
4. The immigration and marital status of both
of the child's parents. This, again, determines the transmission
requirements for parents and retention requirements for the child,
i.e.:
a. Citizen parent and alien parent;
b. Two U.S. citizen parents;
c. Illegitimate child of U.S. citizen mother and
alien father; and/or
d. Illegitimate child of U.S. citizen father and
alien mother.
For example, a person recently came to my office
for consultation, after having arrived in the U.S. on a visitor's
visa. He was still "in status", and was asking about
ways to be able to work in the U.S. During the course of our discussion,
I explored all possible bases or options available to him in connection
with his immigration status. As part of this consultation, I asked
him about his parents' immigration status. By leading the discussion,
and asking him the right questions, I was able to find out that
his mother was born in Hawaii, had lived there for several years,
and then left for the Philippines, where she gave birth to him
out of wedlock.
(In his case, he was born out of wedlock in 1968,
to a U.S. citizen mother.) According to law, based on his date
of birth and the applicable "transmission requirements"
(the ability of a parent to transmit citizenship), he could be
considered a U.S. citizen at birth. In his particular situation,
the "transmission requirement" for his mother's transmission
of citizenship was that she must have been physically present
in the U.S., or one of its outlying possessions (e.g. Guam, Saipan,
Philippines before 1946, etc.), for a continuous period of one
year prior to his birth. In this case, his mother had been born
in Hawaii, so she was a U.S. citizen at birth. She had lived in
the U.S. for a least one year before his birth. So, by operation
of law, he could be considered a U.S. citizen at birth.
You can imagine his surprise to find out that he
was a citizen from birth! Thus, rather than having to explore
ways to obtain a working visa or green card, he was already a
citizen!
It could be possible for you to be a citizen,
in certain situations, where one of your grandparents was
a citizen. Again, careful analysis needs to be done as to the
date of birth of your grandparent, the date of birth of your parent,
whether the applicable transmission and retention requirements
were met, so that you could possibly trace your "citizenship
family tree" from your grandparents, to your parents, down
through you.
Of course, it must be emphasized that just because
you had a parent or grandparent, etc., who was a citizen, does
not mean that you are automatically a U.S. citizen. There are
many requirements which must be met. That's why it's important
that you seek the advice of a reputable attorney who can analyze
your family tree, to determine whether you are a citizen.
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