Lesson Plan Overview

Course

NATIONALITY LAW

Course Description

Nationality Law Course is a combination oflectures, practical exercises, discussions and testing in relation to how someone born in the U.S., its outlying possessions, or abroad becomes a United States citizen,

Within the context of the course, the trainee will learn the different methods of becoming a citizen, legal principles, Constitutional amendments, and Congressional acts and treaties in their relation to claims to U.S. citizenship.

Included within this workbook are four charts, which will help in the determination of citizenship. These charts will be used throughout the course and must be clearly understood for the trainee to successfully complete the course.

Field Performance Objective

Upon encountering a person claiming U.S. citizenship, the officer will be able to correctly determine if a person is a United States citizen and, ifso, the basis upon which U.S. citizenship was acquired.

Interim (Training)

,! Performance Objectives

1. Identify the two legal principles upon which citizenship at birth is based.

2. Specify how a person may acquire U.S. citizen or nationality at birth in the U.S. or outlying possessions during a given period of time.

3. 'Use Chart 1 to correctly solve nationality problems relating to children bom abroad in wedlock.

4. Specify the reasons, which support a finding of alienage or U.S. citizenship based on Chart 1 application.

S. Use Chart 2 to correctly solve nationality problems relating to children bom abroad out of wedlock.

6. Specify the reasons that support a finding of alienage or U.S. citizenship based on Chart 2 application.

7. Determine if a child whose parent or parents are granted naturalization derives U.S. citizenship.

8. Specify the elements that must be met in order for an alien child to become a U.S. citizen

9. Identify any child who becomes a United States citizen.

10. Identify the general requirements for administrative naturalization.

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WORKBOOK; Nationality Law

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Instructional Methods Lecture, PowerPoint Presentation
Time 12 Hours
Training Aids Computer and Overhead Projector
Method of Evaluation Multiple Choice Examination 2

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INTRODUCTION

Sources of U.S. Citizenship

A. How U.S. Citizenship is Obtained

In general, there are two main ways ofbecoming a United States citizen ("USC"). The status either vests automatically upon the occurrence of certain events ox a person has undergone an administrative or judicial process to acquire the status. The most common way of obtaining citizenship is by being born inside the United States. In such cases, U.S. citizenship vests upon almost all persons who are born inside the United States. The rights of citizenship attach to the individual without any action on his Of her part. Americans are so used to this principle that virtually no person born inside the U.S. will doubt his or her right to U.S~ citizenship.

Some persons born to U.S. citizen parents abroad or in the Outlying Possessions ("OLP") of the U.S. may also be U.S. citizens at birth. These rules are based in statute. Like birth inside the United States, the rights of citizenship attach to these persons automatically. Unlike birth inside the United States, however, the rules that determine who is a USC at birth outside the United States [i.e., birth in outlying possessions or abroad] are not simple and vary according to the person's date of birth. The charts supplied in this workbook illustrate rules for births abroad [outside the U.S.!OLP]. Each chart is divided into multiple historical periods. It is critically important to apply the law of the correct historical period in order to accurately determine citizenship status.

At present, not counting the submission of private bills in Congress, there are two additional ways to acquire U.S. citizenship:

1.,DerivatlveCitiienship:-'$ome children who llive"attained-lawful-pennanent resident status and have parents, who are citizens by birth or by naturalization, can derive U.S.

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WORKBOOK: Nationality Law

citizenship automatically by the mere occurrence of these events. Because citizenship status vests automatically, no application is filed. The rules governing derivative citizenship are similar to those governing U.S. citizenship at birth abroad in that they vary according to the date that the final relevant event occurred. However, the requirements for derivative citizenship have been more consistent throughout the years than the rules relating to birth abroad.

2. Some

""-U.LUL"'~~ who ate born regularly

reside outside of the U.S. may acquire citizenship through the application of a USC parent, USC grandparent or USC legal guardian, but only if certain eligibility requirements are met. This method of citizenship acquisition is a direct result of the Child Citizenship Act of 2000, which became effective on February 27, 2001. This section of law is found in §322 of the Immigration and Nationality Act ("INA").

B. U.S. NonwCitizen Nationals

Persons who are born to alien parents in territories controlled by the U.S. acquire an intermediate legal status that exists between U.S. citizen and alien. They are considered non-citizen u.s. nationals. This special legal status provides some benefits, such as not being considered an alien and therefore not being sUbject to grounds of inadmissibility under the immigration laws of the U.S. At birth, however, the political rights of citizenship are beyond the reach of these people. Nationals can obtain a U.S. non-citizen national passport. They can also acquire U.S. citizenship through the process of naturalization.

C. Evidence of Citizenship Status

, .

Automatic acquisition of citizenship does not require the approval of an application. People who acquire citizenship

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Marguez-Almalga" v.INS. 418 F.3d 210 (2d Cir. Aug. 8, 20(5).

A person cannot become a u.s. national through acts manifesting "permanent allegiance " that fall short of actual naturalization.

The petitioner, an LPR. sought to avoid removal by claiming that he is a U.S. national owi.t\g "permaneet allegiance" to the U.S., as evidenced by his LPR status, application naturalization arid U.s. military service.

INA § 101(a)(22)(B) defines a ''national of the United States" as a U.S. citizen or "a person who, though not a citizen of the United States, owes permanent allegiance to the United States." . The court concluded that non-citizen nationals within INA § 1 01 (a)(22)(B) include only persons who at birth satisfied INA § 308 (e.g., those who were born in an outlying possession of . the U.S.), namely American Samoa and Swains Island.

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automatically have that status independently from any act of the U.S. Government. Acquiring the status and having competent proof thereof, however, are two separate matters. Such individuals can request that the U.S. Government provide them evidence or proof of their previously acquired status. They must however file an application to obtain a U.S. passport from the U.S. State Department or submit an application to the United States Citizenship and Immigration Services ("USCIS") for a certificate of citizenship. In each case, the document provided by the government [U.S. passport or the certificate of citizenship] merely constitutes an acknowledgment of a citizenship status previously acquired. These documents do not constitute a conferral of citizenship. In comparison, a person who seeks naturalization must file an application, and it is only after such application is approved and the applicable oath of allegiance taken that they receive a certificate of naturalization. The certificate attests to approval of the application, the taking of the oath of allegiance, and the conferral of U.S. citizenship on them.

D. Naturalization

Few persons born abroad ever acquire U.S. citizenship automatically. Most, of course, are aliens at birth and if they wish to become citizens, they have to undergo an administrative process called naturalization. Before 1990, this process was almost exclusively within the purview of the courts. However, the Immigration Act of 1990 (lMMACT) transferred jurisdiction from the courts to the Immigration and Naturalization Service ("INS"). In turn, jurisdiction was transferred to the Department of Homeland Security, specifically to the USeIS, when the INS ceased to exist on March 1, 2003.

The requirements for naturalization can vary tremendously according to the category under which the person naturalizes. There is, however, one basic model of naturalization from which all the different naturalization procedures derive, namely the naturalization oflawful permanent residents who have resided continuously in the

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United States for 5 years. This basic model has been altered and relaxed to fit the different conditions applicable to special groups such as spouses of U.S. citizens or aliens serving in the U.S. Armed Forces. Additionally, U.S. noncitizen nationals enjoy the more relaxed naturalization requirements found in INA § 325.

Prospective vs. Retroactive Application of Nationality Law

Nationality law has changed significantly over time. These changes are normally the result of Congressional legislation, However, in some instances the manner in which a law is appli!Xi may change as the result of Federal court decisions. If a change in the nationality laws is applied prospectively and not retroactively,

a different law will For

born on J,J" '\4J,"<l.LLVVJ. not be eligible for this benefit because the new legislation does not apply retroactively to them. But persons born on or after January 1, 1980 could receive this benefit because the new legislation applies to them prospectively. Therefore, in order to determine if a benefit applies to a particular person, an officer would need to know that person's date of birth, as well as the applicable law for the time period in question.

Nationality law operates in much the same manner. The applicable law is, more often than not, the law that was in effect at the time a relevant event took place. For example, to determine whether a person was a citizen at birth in 1940 or whether a legal permanent resident derived' citizenship after the naturalization of his or her parents in 1940, an officer must know the applicable law [respectively] at the time of the person's, birth .or patents' naturalization. A practical consequence of this principle is that the officer will not 'find the answer to a 1940's legal question by going to the current version of the statute or regulations in print and employing the current provisions of the law.

Rights and Liabilities of Citizenship

Citizenship in the United States provides certain rights and privileges not available to aliens. These benefits include the right

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---" to vote, the right to hold public office, and eligibility for unlimited types of employment. USCs are also able to confer immigration benefits upon their alien family members more quickly and easily than their permanent resident alien counterparts.

Generally, there are no distinctions made between citizens who were naturalized and those who obtained citizenship at birth. One exception is that the Constitution provides that a naturalized citizen may be precluded from serving as President or Vice President of the United States. This issue, however, has not yet been. tested in the courts. To be able to serve in the House of Representatives or the Senate, naturalized citizens must have been U.S. citizens for at least 7 or 9 years respectively. In addition, naturalized citizens can have their citizenship status revoked if it was obtained unlawfully or fraudulently. Citizens at birth can only lose their citizenship by voluntarily committing a statutory act of "expatriation" with the intent of abandoning their citizenship.

Defmitions

The following is a list of important definitions relevant to the study

of Nationality Law: .;

') Alien:

Any person not a citizen or national of the United States

Lawfully admitted for permanent residence (LPR):

This status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having

changed. '

National:

A person owing permanent allegiance to a state.

National of the United States:

(a) A citizen of the United States, or

(b) A person who, though not a citizen of the United States, owes permanent allegiance to the United States.

Naturalization:

The conferring of nationality of a state upon a person after birth,

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by any means whatsoever.

Outlying Possessions of the United States (OLP):

American Samoa and Swains Island

Residence:

The place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.

United States (in a geographical sense):

The continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States.

LEGAL PRINCIPLES

on U.S. Soil acquire U.S. citizenship at birth automatically. However, there are certain exceptionstothis principle that will be discussed below. For nationality purposes, U.S. soil includes the ports, harbors, bays,

enclosed sea areas and . States. in

acquire U.S. country at a U.S. Embassy or U.S. Armed Forces installation does not acquire U.s. citizenship by Jus Soli. [See, 9 C. Gordon, S. Mailman, &, S. Yale-Loehr, funnigration Law and Procedure § 92.03(c) (2003)]As the geographica] boundary of the United States has changed, so have the temtolies that help comprise the United States. Below is a listing of the United States: and its territories, including those dates after which persons born in each U.S. territory acquired citizenship at birth:

WORKBOOK; Nationality Law

Constitution every pers born in the United States. and subject /, jurisdiction thereofi becomes at once a citizen of the Untied States, and needs no naturalizatiOn. ~ Miller v. Albright. 523 U.S. 420 (1998)

Airspace and inland waters: (Art. 1(1), j 9513 Geneva Convention on the Territorial Sea and the Contiguous Zone, 15 U.S.T. 1606, 114S 5639

Child born within the United States to alien parents illegally within the United States was nevertheless a citizen afthe United States. ~ Acosta v. Ggfnev. 413 F.Supp. 827 (D.c.N.J. 1976)

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1. Bom in the United States

a) Prior to 01/13/41

• Continental mainland

• Alaska - on/after 03/30/1867

• Hawaii - on/after 08/12/1898

• U.S. Virgin Islands (on/after 2/2511927)

b) On or after 01/13/41 [1940 ACT]

• Continental mainland

• Hawaii

• Alaska

• U.S. Virgin Islands

• Puerto Rico

• Guam (on/after 8/1/1950)

c) Additionally, the U.S. includes:

• Ports

• Harbors

• Bays

• Enclosed sea areas

• Territorial seas: 12 nautical miles from the baselines of the U.S. and after December 27, 1988; prior to this date, 3 miles

• Airspace above

~!!f~~~~~-~~:2~]~:r~'-'j?

Not all persons bomon U.S. soil acquire U.S. citizenship at birth. Four exceptions to the Jus Soli principle are listed below. These exceptions involve situations where a person who, although born on U.S. soil, is not subject to the jurisdiction of the U.S. and therefore would not acquire U.S. citizenship at birth:

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The land areas of the U.S. and OLPs have traditionally included a marginal belt of the sea along existing coastlines. A three-mile limit was accepted as being the distance of territorial water in colonial days due to the fact that that was the distance a cannon could shoot. Therefore, that was the greatest distance a country could "protect itself from its own shores." Early in the last century the Supreme Court of the United States agreed the marginal belt extended three geographic miles. Cunard S.s. Co. v. Mellon. 262 tis. 100 (1923).

However. the 3-mile width of the territorial waters was deemed outmoded and Presidential Proclamation increased it to 12 miles in 1988. ~ Presidential Proclamation 5928 of December 27, 1988, 54Fed. Reg. 777 (Jan. 91989).

8 C.F.R. § 1013 describes in detail the status of persons born under diplomatic status in the u.s. It distinguishes between individuals whose name appear on the Blue List and the White list. See also. In Re Biaz, 135 U.S. 403 (1890)

A child born to aforeign diplomatic officer listed on the Department of State's Blue List may, nevertheless, voluntarily . register as a lawfol permanent resident

8 C.F.R. § 101.3(c).

A child born to aforeign diplomatic officer listed on the Department of State's Blue List, whose other parent is a USC, is considered to have been born tI abroad. "

. Such a child could acquire U.S. citizenship under pertinent laws in either Chart 1 or Chart 2. 7 FAM 1116.2-2 (d)(4)

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Note:

The Commonwealth of North em Mariana Islands [CNM1] is not part of the United States [by definition], however, a treaty entered into with the CNMI provides that persons born in the CNMI on Of after 11/3/86 are U.S. citizens at birth.

hildren who are born outside the

one or two parents may acquire U.S. citizenship

automatically if certain conditions are met. The necessary

conditions for automatic citizenship will vary based upon when Ii

. child was born and whether a child was born in wedlock or put of wedlock. Additionally, a child born abroad to two alien parents can acquire U.S. citizenship automatically if the child's parent or parents naturalize and the child is a legal permanent resident

Once again; certain conditions must be met, and these conditions vary according to the applicable law at the time that the last relevant event occurs. For births abtoad~spi::cia:l charts have been created to deal with these sometimes-complex factual sitUations.

Each chart, which provides a snapshot of theapp1i~blll}ieiWdb.ring various historical time periods, allows an officer to' quickly . determine if a child has acquired citizenship at birth or derivative

. -,~--- -: - p after birth. These roles are not embodied in the U.s.

OOK; Nationality law

Foreign public vessels include warships. naval auxiliaries, and other vessels or aircraft owned or operated by a state and 1.1800 for the time being, only on government non-commercial service.

A child born on a foreign merchant ship or privatelv owned vessel in U.s. waters is considered as ha'Ving been born snbject to the jurisdiction of the United States. 7 F AM 1116.2-6

The fourteenth amendment affirms the ancient rule of acquisition of citizenship by birth within the territory in the allegiance and under the protection of the country, except the children offoreign sovereigns or their ministers, or born on foreign. public ships, or of enemies during a hostile occupation.

~ U.S. v. Wong. 169 U.S. 649 (1898)

See, Public Law 94-241,

90 Stat. 263 and 48 U.S.C. § 1801

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Constitution but such citizenship is granted through the operation of the statutory law laid out in the charts.

P~YSOURCESOFAUTHORITY CONFERRING CITIZENSHIP AT BIRTH

I\-y,lt b~ ,"-'\ 'Y

The 14th Amendment of the Constitution, which was added in 1868, guaranteed U.S. citizenship to those persons born in the U.S. and born subject to the jurisdiction of the u.s. (Jus Soli principle). Acts of Congress or laws of the different states may not contradict the Constitution.

Congress enacts all laws contained in the Immigration and Nationality Act ("INA',. As a result, Congress enacts the laws that govern what conditions must be fulfilled for a USC parent or parents to transmit citizenship to their children (Jus Sanguinis principle).

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ACQUISITION OF U. S. CITIZENSHIP BY NATIVES OR INHABITANTS OF U.S. TERRITORIES AND POSSESSIONS

Guam - § 307lNA

Effective April I!, 1899, Guam was ceded by Spain to the United States via the Treaty of Paris executed at the end of the Spanish American War. Spain was paid $20 million. U.S. President William McKinley placed Guam within the administration of the US. Department of the Navy. The U.S. Navy refueling and communication station fell in 1941 shortly after the attack on Pearl Harbor. The U.S. Naval Government was re-established after the war. In 1949, US. President Harry S. Truman signed the Organic Act making Guam an unincorporated territory of the United States with limited self-governing authority, which it remains today, and granting U.S. citizenship to the people of Guam.

Native Guamanians and Spanish subjects became nationals of the US. on 04/1111899.

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Questions arise from time to time about French military officers who may have been granted citizenship by States, which they aided during the American revolution. In 1955, the Immigration and Naturalization Service had occasion to consider the case of a descendent of'Lafayeue who claimed U.S. citizenship pursuant to a Maryland Act of 1784, which stated "(t)hat the marquis de la Fayette, and his h4irs male for ever, shall be ... citizens of this state." In reaching the conclusion that the male descendants ofLqfayette, born after March 4, 1789 (the effective date 0/ the Constitution), could acquire U.S. citizenship only on terms specified by Congress, the INS cited the exclusive power given to Congress by the Constitution to establish naturalization laws; and the Supreme Court's roling in Dred Scott v. Sandford. 60 u.s. 393 (1856), that, although a State might grant State citizenship to someone, that person would not automatically be a U.s. citizen. (Matter gfM.

6 L &N. 749 (BIA 1955).

Interesting note about Guam:

"On January 24, i972, the last Japanese World War II holdout, Sergeant Shoichi Yokoi; was discovered in the cave in whick he had been hiding since his unit was scattered by the advancing Americans in July 1944. " www.guamonline.com

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A child born in Guam on or after 0411111899 and prior to 01/13/1941, whose father was a national was born a national.

A child born in Guam on or after 01113/1941 and prior to 08/0111950, with either parent a national, was born a national.

The Organic Act of Guam, effective 08/01/1950 provides that the following persons are U.S. citizens:

Inhabitants of Guam on 0411111899 who were Spanish subj ects and continued to reside in a U.S. territory.

-,

All persons born in Guam, who were residing there on 04/1111899

and continued to reside in a U.S. territory.

All persons born in Guam on 'or after April 11, 1899 subject to the jurisdiction of the u.s.

Commonwealth of Northem Mariana Islands - P.L. 94-241

The Commonwealth of Northern Mariana Islands [CNMI] is a chain of 14 tropical islands in the Western Pacific. The three largest islands are Saipan, Tinian, and Rota. The islands were sold by Spain to Germany in 1899. After Germeny's WWI defeat it was stripped of all overseas possessions, The Mariana Islands were administered by Japan as a mandate under the League of Nations. At the beginning ofWWTI approximately 29,692 Japanese military personnel were stationed on Saipan.

The Northern Mariana Islands were never a permanent legal possession of Japan so the U.S. could not strip the territory from a defeated Japan after WW II. On July 1947 the area was recognized as a Trust Territory by the United Nations.

The people of the Marianas were the first of all the former

Trust Territory entities to decide their future political identity. On November 3, 1986, the President signed a proclamation, which

. the CNMI in political union with the United States.

'OK: Nationality law

Interesting note about CNM!:

The islands came und~r American control in July 1944. From an airfield on Tinian the first nuclear weapon was dropped on Il'troshima by the B -29 aircrqft Enola Gay. http://www.cnmi-gufde.com/hi1;tory/commonwealthl

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tr'he following were declared citizens of the United States, ~effective 11/03/1986:

All persons born in the CNMI, who were citizens of the dissolved Trust Territory of the Pacific (TIP), on 11/0211986 and were domiciled in the CNMI, the United States, or any territory or possession, and their children under 18.

All persons who were citizens of the Trust Territory of the Pacific on 1110211986 who had been domiciled continuously in the Cl'.TMI for the preceding 5 years and had registered to vote, and their children under 18.

All persons domiciled in the CNMlon 11102/1986 who were not citizens of the Trust Territory of the Pacific, but had been continuously domiciled in the CNMI, beginning prior to 01/0111974, and their children under 18.

The Trust Territory of the Pacific was never an outlying possession, nor were its inhabitants ever nationals of the U.S.

ACQUISITION OF U.S. NATIONALITY BY NATIVES OR INHABITANTS OF U.S. TERRITORIES AND POSSESSIONS

American Samoa - § 308 INA

American Samoa is a group of islands in the South Pacific Ocean, about half way between Hawaii and New Zealand. Settled as early as 1000 B.C., Samoa was "discovered" by European explorers in the 18th century. International rivalries in the latter half of the 19th century were settled by an 1899 treaty in which Germany and the US divided the Samoan archipelago. The US formally occupied its portion - a smaller group of eastern islands with the excellent harbor ofPago Pago the following year on February 16, 1900.

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During World War JI, U.S. Marines in Samoa outnumbered the local population, having a huge cultural influence. Young Samoan men from. the age of 14 and above were combat trained by US military personnel. As in WWI. Samoans served in WW1I as combatants, medical personnel, code personnel, ship repairs, etc. http://en.wikipedia.orglwikilAmerican_Sa mea

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'r<.I?- ~ JI.

[http://www.cia.gov/cialpublications/factbook] fA c, <\

I

Inhabitants of American Samoa on ","'; 19'Quired U.S. nationality on that date, provided they were either British or German subjects.

Children born in wedlock in American Samoa prior to 01/1 acquired U.S. nationality at birth only if the father was a U.S. national at time of child's birth.

Children born out of wedlock in American Samoa prior to 01/1311941 became U.S. nationals on 0111311941 if'the motheo' was a U.S. national.

Children born in American Samoa on/after 01113/1941 Anl1"'nM."I1" 12124/1952 acquired U.S. nationality on1yif_~·~_.:.d'-'-~~ national of the U.S. at the time of the .... ~L ...... """ .....

.' " '. j'~'~G(t¥6~i!;"~:;'h"" "',:

"( " ~ttP:if~.~ciriiiI;d14/unitslkuk

ui/Swains.htm to see pictures of island taken during Coast Guard Cutter KUKUI's visit to the island.

On March 4, 1925, by Joint Resolution of the U.S. Congress, American sovereignty was officially extended to the Swains Island, and it was placed under jurisdiction of the government of American Samoa. It is an atoll that has been variously known as Olosenga Island, Olohega Island, Quiros Island, Gente Hermosa Island, and Jennings Island throughout its history. The island is a ring of sand and coral, a mile and a half east and west; a mile wide, and nowhere more than 20 feet high. Most of the land, from the crest of the narrow ocean beach to the very edge of the lagoon, is thickly covered with vegetation, about 800 acres of coconut palms and various trees and shrubs found widespread :in the Pacific. The current population of the island is 37, all located in the one village. http://en.wikipedia.org

Inhabitants of Swains Island on 03/0411925 acquired U$. nationality on that date; provided they were either British or German subjects.

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ICE ACADEMY Fall .. 2007

Children born in wedlock in Swains Island, on or after 03/04/1925 and prior to 0111311941 acquired U.S. nationality only if the father was a U.S. national at the time of the child's birth.

Children born out of wedlock in Swains Island before 01/13/1941 became U.S. nationals on 01113/1941 if the mother was a U.S. national at the time of the child's birth.

Children born in Swains Island on or after 01113/1941 and prior to 12124/1952 acquired U.S. nationality if either parent was a national of the U.S. at the time of the child's birth.

A HISTORICAL NOTE ON THE ACQUISITION OF U.S.

CITIZENSHIP BY THOSE PERSONS FROM PUERTO RICO

)

This information is provided more for the students' interest as opposed to being something routinely utilized to make citizenship determinations today. A significant number of students draw their roots back to Puerto Rico and they frequently ask how to reconcile what they have heard growing up and the provisions of the INA

. Today Puerto Rico comes within the definition of "United States" given in Section 101 (a)(38) INA. A person born in Puerto Rico acquires u.s. citizenship in the same way as one born in any of the 50 States. Section 301(a) INA (8 U.S.C. 1401(a». This was not always the case.

Sovereignty over Puerto Rico was ceded by Spain to the United States by the Treaty of Paris of 1899 (30 Stat. 1754), following the Spanish-American War. For those in Puerto Rico at the time, only the Spanish subjects who had been born in the Spanish Peninsula could opt not to acquire u.s. nationality (not citizenship); Spanish subjects born in Puerto Rico had no such right. If they were' residents of Puerto Rico, they became u.s. nationals

automatically; and a Spanish-born male could elect Spanish nationality on behalf of his Spanish-born wife and children but not . on behalf of a wife or child born in Puerto Rico.

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rCEACADEMY Fall· 2007

After the year during which a declaration could be made to preserve Spanish nationality, Congress quickly took steps to define the status of the inhabitants QfPuerto Rico. in the Act of

April 12, 1900. A child born in Puerto Rico after April 11, 1900; and before March 2, 1917, acquired Puerto Rican citizenship and non-citizen U.S. nationality if one of its parents was a Puerto Rican citizen under Section 7 of the Act of Apri112, 1900. lfthe child was born out of wedlock to a Puerto Rican father and an alien mother, legitimation was necessary before the child acquired the father's status. A child born in Puerto Rico to alien parents did not acquire U.S. nationality or Puerto Rican citizenship at birth.

The Act of March 2, 1917 (39 Stat. 953) granted U.S. citizenship

as of that date to all citizens of Puerto Rico and to certain natiyes ..

of Puerto Rico who had oeetlabsent from PuertO;RiC?OflA.Ptil.:.Jl~. , i;" 1899, but had returned to reside permanently, unlesstJiey.decli:lfed; .. under oath, their intention to retain foreign political status. Other provisions of Section 5 of the Act of March 2, 1917, exist to cover different fact patterns. Known as the "Jones Act," however, this

law did not provide for automatic acquisition of citizenship at birth

for yet unborn persons in Puerto Rico.

; , .

The first law specifically relating to the acquisition of U.S. citizenship by birth in Puerto Rico was the Act 'of June 27, 1934 (48 Stat. 1245), which amended the Act of March 2, 1917. Refer to 7 Foreign Affairs Manual 1122.2-4 "U.S. Citizenship of Persons Born in Puerto Rico On or After March 2, 1917, and Before January 13,1941" for eddltionalinformation,

,

The Nationality Act of 1940, effective January 13, 1941, provided in section 202 that:

"All persons born in Puerto Rico on or after April 11; 1899, subject to the jurisdiction of the United States, residing on

the effective date of this Act in Puerto Rico or other territory over which the United States exercises rights of sovereignty and not citizens of the United States under any other Act, are hereby declared to be citizens of the United States." .

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Congress took its final steps to speak to the issue of U.S. citizenship and Puerto Rico with the passage of the current law in 1952. Section 302, INA (8 U.S.C. 1402) applies specifically to persons born in Puerto Rico on or after April 11 , 1899:

"All persons born in Puerto Rico on or after April 11,

1899, and prior to January 13,1941, subject to the jurisdiction of the United States, residing on January 13, 1941, in Puerto Rico or other territory over which the United. States exercises rights of sovereignty and not citizens of the United States under any other Act, are hereby declared. to be citizens of the United States as of January 13, 1941. All persons born in Puerto Rico on or after January 13,1941, and subject to the jurisdiction of theUnited. States, are citizens of the United States at.birth,"

A SHORT NOTE ON THE CONCEPT OF DUAL CITIZENSHIP

,

.t

The concept of dual nationality means that a person is a citizen of two countries at the same time. Each country has its own citizenship laws based. on its own policy. Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth.

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as aU .S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship, In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.

Intent can be shown by the person's statements or conduct. The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause. Claims of other countries on dual national U.S. citizens

17

WORKBOOK; Nationality Law

ICE ACADEMY Fall- 2007

may conflict with U.S. law, and dual nationality may limit U.S. Government efforts to assist citizens abroad. The country where a dual national is located generally has a stronger claim to that person's allegiance.

However, dual nationals owe allegiance to both the United States and the foreign country. They are required to obey the laws of both countries. Either country has the right to enforce its laws, particularly if the person later travels there. Most U.s. citizens, including dual nationals, must use a u.s. passport to enter and leave the United States. Dual nationals may also be required by the foreign country to use its passport to enter and leave. that country. Use of the foreign passport does not endanger U.s~citizenship. Most countries permit a person to renounce or otherwise lose citizenship.

Information on losing foreign citizenship can be obtained from the foreign country's embassy and consulates in the United States. Americans can renounce U.S. citizenship in the proper form at U.S. embassies and consulates abroad.

[See, http://travel.state.gov/travel/cis-pa_tw/cis/cis_1753.html]

REVIEW QUESTIONS

1. State the two legal principles upon which laws governing the acquisition of U.S. citizenship are based.

2. Name the two sources of legal authority conferring U.S. citizenship at birth.

3. List four situations in which a person, though born in the U.S., does not acquire U.S. citizenship at birth.

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WORKBOOK; Nationality Law

ICE ACADEMY Fall- 2007

\

In each of the following problems, determine if the child's status today is a USC, U.S. national, or alien. Explain your answers.

4. A child was born today to alien parents in Forks, Washington.

5. While the Italian warship ROMA was docked at New Orleans, Louisiana on May 14, 1988, a child was born onboard to the alien wife of an Italian Naval Officer.

6. A child was born in Washington, DC, to the wife of the U.S. Ambassador to France on October 15, 1999.

7. A child was born out of wedlock on June 6, 2000 to a female alien who was residing illegally in the United States.

8. A child was born in 1987 to the wife of the Mexican Ambassador to Canada, while she was visiting relatives in Brownsville, Texas.

9. A child was born in Washington D.C., to the Indian Ambassador to the United States and his wife.

10. A child was born in Pago Pago, American Samoa last week to a couple from Sydney,

Australia who were there on vacation. .

19

WORKBOOK: Nationality Law

ICE ACADEMY Fall - 2007

mSTORICAL REVIEW OF KEY ACQmSITION STATUTES PASSED BY THE U.S. CONGRESS

The First Congress enacted "An Act to Establish an Uniform Rule of

Naturalization" (1 Stat. 103,104) that stated, in part, that " ... the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens; Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States." This Act was repealed by the Act of January 29, 1795 ..

The Act of January 29~ 1795, while it repealed the Act of March 26, 1790, in section 3, adopted essentially the same provision for acquiring U.S. citizenship by birth abroad. This Act was repealed by the Act of April 14, 1802.

In Section 4 of the Act of Aprll14, 1802 it said " ... the children of persons who now are, or have been citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons whose fathers have never resided within the United States." This raised a question whether persons who subsequently became citizens by birth or naturalization could transmit citizenship to their children born abroad. The right of such persons to transmit was clearly provided

in the Act of February 10,1855. The Act of February 10,1855 did not repeal the Act of (

April 14, 1802.

The provisions of the Act of 1802 and the Act of 1855 were codified as

Section 1993 of the Revised Statutes of 1878. From 1878 to 1934, Section 1993,

Rev. Stat., stated that "All children heretofore or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States. Section 1993 permitted the transmission of citizenship only by U.S. citizen fathers until it was amended prospectively on May 24, 1934, to permit transmission

by U.S. citizen mothers.

Section 1993 (48 Stat. 797) was amended by the Act of May 24, 1934, to permit American women to transmit U.S. citizenship to their children born abroad,

regardless of the father's citizenship. 'The amended Section 1993 was in effect from May 24,1934, at noon Eastem Standard Time until January 12,1941. It was repealed, and superseded by the Nationality Act of 1940.

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WORKBOOK: Nationality Law

./

ICE ACADEMY Fall- 2007

The Nationality Act of 1940 (NA) (54 Stat. 1137) went into effect on

January 13, 1941. Section 201 NA addressed acquisition of citizenship by birth abroad. The NA was repealed and superseded by the Immigration and Nationality Act of 1952.

The Immigration and Nationality Act (INA) of 1952, the current law, has

been in effect since December 24, 1952. The citizenship provisions of the INA have been amended by the following significant Public Laws [Pub. L.]:

(1) The Immigration and Nationality Act Amendments of 1986 (pub. L. 99.- 653), effective November 14, 1986;.

(2) The Immigration Technical Corrections Act of 1988 (Pub. L, 100 .. 525), effective October 24> 1988;

(3) The Immigration and Nationality Technical Corrections Act of 1994 (Pub, L. 103-416), effective October 25, 1994; and,

(4) Pub. L.I05-38 of August 8,1997, which amended Section 102 of Pub. L. 103-416.

The relevant parts of these statutes reduced the amount of U.S. physical presence required to transmit citizenship to children born abroad; changed the procedures by which children born abroad out of wedlock to an American father can acquire citizenship; enabled children born abroad prior to May 24, 1934, to acquire U.S. citizenship through U.S. citizen mothers; provided a means for persons whose citizenship ceased through failure to comply with the retention requirements to have their citizenship restored; and specified the effective dates of various amended provisions.

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. WORKBOOK: Nationality Law

ICE ACADEMY Fall- 2007

Whe:,.l C k~'~ ~ ";-:... bd l' ,.,J. cl CCe:( ,

;~ -:r'Q~j c"""""".",", '; ,"~'~rl~~ ~;~~

PARENT

STEP 3 L. or Je'

PERIOD STEP!

Citizenship of the parents at time of child's birth.

or physical presence requirement was met prior to the birth of the child. If yes, the child was a USC at birth.

which child was

in the U.s.

One USC parent and
one alien
One USC parent and USC in the U.S. orOLP for to
one alien years. at least 5 of which were after age
16.
Note 3
Special Previsions for honorable
On/after service in U.S. Armed Forces:
1/13/41
and prior to Between 12/7/41 and nOOl1 on 12131/46,
12124152 10 years residence, at least 5 ofwlilCh
were after age 12. Note 3
Between nOOl1 on 12/31/46 and
12124152, 10 years physical presence, at
least 5 of which were after age 14.
Note 4
Both parents uses One had resided in the U.S. or OLP
On/after Both One had resided in the U.S. or OLP
12124152 One USC parent and USC physically present in U.S. or OLP
and prior to one alien 10 years, at least 5 after age 14.
11114/86 NoteS
Both parents USCs One had resided in the U.S. or OLP
OnIafter I One USC parent and USC physically present in U.S. or OLP
11114/86 alien 5 years, at least 2 after the age of 14. WORKBOOK: Nationality Law

CHILD STEP 4

child lost on the date it became impossible to meet the retention requirements.

**5 years residence in the Ll.S, or OLP between ages 13 and2L

OR

**5 years continuous physical presence in U.S. between ages of 14 and 28 (must start after age 14 and before age 23).

OR

**2 years continuous physical presence in U.S. between ages of 14 and 28 (must starJ: before age 26).

OR

**NONE, if at t}me of child's birth, USC parent was employed by the U.S. Government or any organization specified under 201(g) of the 1940 Act; HOWEVER, DOES NOT APPLY IF PA'R.BNT USBD A SPECIAL PROVISION.

NOTES 6

NONE

NONE

NONE

NONE

NONE

ICE ACADEMY Fall- 2007

22

2. A child is not required to meet the retention requirements if, prior to his 18th birthday, the child began to reside permanently in the V.S.;amithea,li~n,p~~p.-t naturalized. [Public

Law 92-584 of October 27, 1972] -;» -;;i:1Ji/i£;:~i:;;~~7~;i;1;;.('X::;r:; ,..:~,' .,:,1 ';,,~\~. : "

3. Includes periods abroad of honorable service in U.s. Armed Forces. Absences abroad due to employment or schooling also counted if the person maintained a place of general abode in the U.S. [See, 7 Foreign Mfaits Manual 1134.3-2].

4. Pursuant to the Act of March 16, 1956 (70 suit. 50) [See, 7 Foreign Affairs Manual 1134.4]. Honorable service in U.S. Armed Forces counted as constructive physical presence.

5. Includes periods abroad of honorable service in U.S. Armed Forces and employment by the U.S. Government or an international organization [or the dependent unmarried son

or daughter member of the household of such employee]. .

6. Public Law 95-432 of October 10, 1978 repealed retention requirements prospectively only. Anyone born on or after .~ 0/10/52 (i.e., not age 26 on 10/10178) no longer had

retention requirements. '

* USC mother added due to Immigration and Nationality Technical Corrections Act of 1994 (1NTCA).

** Retention requirements were repealed effective 10/10178; INTCA made nonretroactive restoration of citizenship available by taking an oath of allegiance .

. ,.,

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ICE ACADEMY Fall- 2007

/

RESIDENCE DEFINED

A child born abroad [meaning not in the U.S. or an OLP] in wedlock to USC parent(s) cannot acquire citizenship at birth unless at least one USC parent had resided or been physically present in the U.S. [or U.S.!OLP in certain historical periods] prior to the child's birth. However, the definition of residence and what constitutes residence within the U.S. or an OLP has changed over time. Prior to the 1940 Nationality Act, a very liberal definition of residence was used for nationality purposes. Under this more liberal definition, mere birth in the u.s. or temporary visits to the U.S. of more than a few hours constituted residence in the U.S. for nationality purposes, Over time, more restrictive definitions of residence were used for nationality purposes. Today's definition can be found in INA § 1 0 1 (a)(33). The definitions for Physical Presence and Continuous Physical Presence are also listed below.

Residence' or 'resided in' prior to 1940 Act:

.:- Physical presence in the U.S. alone was sufficient, Le, something more than a mere transit of a few boars .

• :- Bom in U.S. is considered as wen .

• ) Living in the US. illegally also meets the definition.

'Residence' or 'resided in' after the 1940 Act:

.) The place of general abode, Le, the principal dwelling place in the US. or its outlying

possessions.

.. More than physical presence and temporary residence. (0 Law:ful1y Admitted for Permanent Residence.

.:- Temporary absences do not generally matter as long as the US. is still the place of general abode .

• :- School attendance is considered residence

(0 Living in the U.S. illegally also meets the definition.

'Residence' or 'resided in' after the INA Q952):

(0 The place of general abode; me place of general abode of a person means his principal,

actual dwelling place in fact, without regard to intent (0 More than physical presence.

(0 Lawfully Admitted for Permanent Residence.

(0 Living in lhe u.s. illegally also meets '!he definition.

Phystca1ly Present:

Actually at a place in lhe United States or the outlying possessions in person.

Continuous Physical Presence:

An extended period ofphysical presence required to retain citizenship.

24

WORKBOOK: Nationality Law

ICE ACADEMY Fall· 2007

CHARTl

Chart 1 illustrates the legal requirements for a child born in wedlock abroad [meaning not in the U.s. or an OLP] to automatically acquire U.S. citizenship at birth. Chart 1 applies only to the biological offspring of U.S. citizen parents. Chart 1 does not apply to adopted children or stepchildren. Chart 1 is divided into five historical periods, as follows:

-Period 1: Births Prior to 5/2411934

-Period 2: Births on or after 5/24/1934 and prior to 111311941

-Period 3: Births on or after 111311941 and prior to 12/24/1952

-Period 4: Births on or after 12/24/1952 and prior to 1111411986

-Period 5: Births on or after 11/14/1986.

The inception date of historical periods two through five above represent the effective dates of specific changes in the nationality law. The legal requirements to acquire citizenship at birth vary :from one historical period to another. Mastering the facts of each individual's situation is critical in determining a person citizenship status. To determine if a child born in wedlock abroad did in fact acquire U.S. citizenship at birth and remains a USC today [i.e. met retention requirements where required], the steps in Chart 1 must be followed exactly. The steps discussed below are also described in brief at the top of Chart 1.

STEP 1: Select the applicable historical period from Chart 1 based upon the date the child in question was born.

STEP 2: Determine if the child had one or two USC parents at the time of its birth.

STEP 3: Based upon the number of use parents the child had at birth, identify the historical period's legal requirements for automatic acquisition of U.S. citizenship. Carefully gather the facts concerning the whereabouts of the USC parent(s) prior to the child's birth. Calculate the amount of time, if any, that the child's USC parent(s) resided in or was physically present in the U.S. or OLP (when applicable) prior to the child's birth. Ensure you apply the correct definition of residence. Remember that the term residence is not uniform across all five historical periods. If at least one use parent can meet the

WORKBOOK; NationaliLY Law

.:»

ICE ACADEMY . Fall ~ 2007

Before the Nationality Act of 1940 and absent laws specifying how U.S. citizenshlp could be acquired by persons born in a particular territory, children born in a U.S. possession could acquire U.S. citizenship under the laws governing birth abroad if the citizen parent was qualified to transmit U.S. citizenship.

25

residency/physical presence requirement, the child acquired U.S. citizenship at birth.

STEP 4: Determine if the child has ever resided in or been physically present in the U.S. or an OLP. Somechildren born to one uSC parent on or after 5/27l/34 andprior to 12124/52 [in the 2nd and 3m histbrical periods] must haveresided in or been physically present in the U.S. or OLP to retain the U.S. citizenship status they acquired at birth. This retention requirement, when applicable, must be satisfied prior to the child reaching a certain age. The age requirements are specified On Chart 1. Failure to satisfy this requirement, when applicable, resulted in the loss of the child's U.S. citizenship status. For such p'ersons, U.S: citizenship was lost when it was no longer possible to meet the retention requirement [i.e. 'on the person's '26th birthday.]

The following is an overview of the historical periods covered by

Chart 1 with examples from each historical period. .

Period 1: Births Rrior to May 24. 1934

Descriution: The law says that persons born abroad prior to May 24, 1934 acquired citizenship at birth if they had at least one USC parent who, prior to such child's birth, had resided in the United States.

Example 1: Bill was born in wedlock in 1930 in Paris, France. Bill's parents were John, a USC who had resided !orthree'years

in the United States Bill's birth, and Marie, an alien.

requirement.

Example 2: Tony was born in wedlock in 1930 in-Paris, France. Tony's parents were Mary, a USC who had resided in the United States before Tony's birth, and Antoine, an alien.

Tonv was an alien at birth in 1930 because USC mothers historically could not transmit citizenship to their children. However. Tonv would be a USC today due to the passage of the

WORKBOOK; NatlonaUty Law

The aim of the retention requirements was to prevent the residence abroad of successive generations of persons clalming the privileges 01U.S. citizenship while evading its duties.

Before May 24, 1934, under § 1993 afthe Revised Statutes of 1874, females could not transmit United States citizenship. The Act of May 24, 1934, 48 Stat. 797 provided that citizenship could be transmitted bye.ither a father or a mother; but the amendmem was not retroactive. In 1994 the law was forther changed to provide equal treatment for children born abroad to USC mothers. Immigration and Nationality Technical Corrections Act of 1994 ("INTCA "), Pub. L. No. 103-416, § 101, 108 Stat. 4305 (1994) (creating a new INA § 301(h). Therefore, a child born abroad before May 24, .J 934 to an alien father and a USC mother. who resided in the U.S. is now considered to have been a USC at birth.

ICE ACADEMY Fall- 2007

26

Immigration and Nationality Technical Corrections Act of1994 (INTC4). INTCA corrected the prior inequity that prevented USC mothers from transmitting citizenship to a child born in wedlock prior to 5/24/34. As a result of this retroactive amendment, effective 1994, Tony became a usc from his date of birth.

Period 2: Births on or after May 24. 1934 and prior to January 13, 1941

Description: Persons born abroad to two USC parents acquired citizenship if at least one of the parents had resided in the tr.: S. prior to the child's birth. Similarly, persons born abroad to one U.S. citizen parent and one alien parent acquired U.S. citizenship at birth if the U.S. citizen parent had resided in the U. S. prior to the child's birth. However, with just one U.S. citizen parent at

birth, such persons were subject to the retention requirement rules. Persons may now regain their citizenship

Those persons who were required by law to actually reside in the status as explained later in the materials.

U / LP th 1 ed conti h 'cal ~ Immigration and Nationality

. .8. 0 or mc:et eater enact conti~~ous p ,YSI presence Technical Corrections Act of 1994

In the U.s. requirements would lose the citizenship status that!h~~ .... ("INTCA 'I. Pub. L. No. 103-416, 108

gained at birth if they failed to so. . .... ~ L-Y rY'~J~ "Stat. 4305 (1994)

o: .. ~,,~';':t'

Examole: Charlie was born in . Austria in 1935. His/ather

was William, a USC who had resided in the United States prior to

) Charlie's birth and subsequently moved to Austria. His mother, Gertrude, was an alien woman. Charlie has never resided or been physically present in the U.S. or an OLP.

Charlie acquired United States citizenship at birth because his father had resided in the U.S. prior to Charlie '8 hirth. However, Charlie was subject to the retention requirement. An exemption from the retention requirement is available for any child whose

U.S. citizen parent was employed by the U.s. government or certain organizations specified under §20 1 (g) of the 1940 Act (had "qualifying employment'" at the time of their birth. Nothing in the example tells us that William had "qualifYing employment" at the time of Charlie '8 birth. Accordingly Charlie had to satisfy one

. of the three retention requirements found in Step4 of Chart 1.

Here. Charlie has never resided or been physically present in the U.S. As a result. Charlie lost his United States citizenship acquired at birth once it became impossible for him to meet the retention requirement, It became impossible for Charlie to satisfy the retention requirement after he~rnec[26veari(jlaiif1961.

WORKBOOK: Nationalitv Law

The exemption from retention.' requirements applies to a "child born abroad whose u.s. citizen parent is at the time of the child's birth residing abroad solely or principally in the employment of the Government of the United States or a bona fide American educational, scientific, philanthropic. religioUS, commercial, or financial organization, having its principal office or place of business in the United States, or an international agency of an official character in. which the United States participates, for which he receives a substantial compensation." [§ 201(g) of the 1940 A.ct]

ICE ACADEMY Fall- 2007

27

Period 3: Births on or after January 13.1941 and prior to December 24. 1952

Description: Persons born abroad. to two USC parents acquired citizenship at birth provided that at least one of the parents had resided in the U.S. or an OLP prior to the child's birth. Persons bom abroad to one U.S. citizen and one alien parent acquired U.S. citizenship at birth if, prior to such birth, the U.S. citizen parent

resided in the U.S. or OLP r: years, at least 5 ofwbich

were after the age of 16., ,

In historical period 3 the calc· ation of the years of residence included both periods of actual time and. constructive.time, In. a

1948 opinion, the Legal Advisor of the Department of State-held The House Committee report addressed

that §20 10f the 1940 Act did not require the parents to remain the issue of age reduction and it stated:

dl th d "The purpose of the bill, primarily, is to

continuously and uninterrupte yin . e Unite States during the preserve the citizenship of infant children

prescribed period, but required the parents .to maintain their place born abroad to our servicemen who are

of abode in the United States during any absences. Residence was under 21 years of age at the time of the

not terminated by visits abroad but was termin,,~t~d by the birth of the child. Under section 201 (g),

establishment of a dwelling place abroad. AbseMe. wom the 'no citizen-parent, where the other parent

United States as a member of the U.S. ArmedForce~ 'was counted is an alien, can transmit his United States

citizenship to his chi/di/the parent is

as residence in the United States, provided the service was under 21 years of age.at the time of the

honorably performed, Absences from the United States due to birth of the child.' In the present war 1

employment or schooling abroad could also be included as have drafted thousands of boys 18 years

residence in the United States as long as the persons involved of age, and it is only natural that in their

maintained their place of general abode in the United States. foreign service a certainproportion will marry girls who are citizens of other

countries and have children born to them.

In the 3rd historical period the U.S. was sending hundreds of Most certainly these citizens of ours who

thousands of YO\IDg men overseas in military uniform as part of the are fighting for their country, willing to war effort. Many of these young PflOpl~, were getting married to give their lives for their country, should aliens and having children before turning age21. Every child 'born . have the privilege of their citizenship

. descending upon their children." H. R.

before the USC parent turned 21 was automatically an alien at 5513 passed the House on December 12,

birth because the residency rule or 10 years/5 after age 16 could 1944 (90th Congo .Rec. 9429).

never be.satisfied. Recognizing this problem, Congress relaxed

the rules for USC parents who served honorably in the U.S. Armed Citizenskip is acquired under § 201 (i) of

rd the 1'940 Act, as amended, by a child born

Forces during the 3 historical period [See, Public Law 571 which abroad prior to July 31,.1946, of but one

is section 201 (i) of the Nationality Act of i940, as amended, and citizen parent, even if the United States

which became effective on July 31,1946; and the Act of March military service of the citizen parent

1956 (70 Stat. 50) as modified in 1972]. commenced subsequent to the birth of the child, all the other essential facts having occurred during the period specified by the statute. ~ MatterofA. 2 L & N. Dec. 799 (1947)

The phrase "anyperiod« of honorable service in the ArmedForces of the United States, " includes all periods of honorable foreign service in the U.S. Armed Forcesfrom the date of enlistment whether the enlistment occurred in the United States or abroad. Only periods of honorable U.s. military service abroad count as periods of physical presence in the United States. However, some persons who have received other than honorable discharg'!s ~ay have some periods of honorable service that can be confirmed by the military authorities.

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ICE ACADEMY Fall- 2007

These relaxed requirements are referred to as Special Provisions. Step 3 of Chart 1 includes two Special Provisions, as follows:

-if the USC parent honorably served in the U.S. Armed Forces at anytime between 12/7/1941 and 12/31/1946, and he or she. had resided in the U.S. or an OLP for 10 years, with 5 of those years after the age 12; or,

)

-if the USC parent honorably served in the U.S. Armed Forces between noon on 12/3111946 and 12/2411952, and he or she had been physically present in the U.S. or an OLP for a total of 10 years, with 5 of those years after the age of 14.

Persons born abroad in the 3rd historical period to just one U.S. citizen parent, whose parent met the general residency requirement or benefited from the less demanding requirements of the special provisions described above, were nevertheless required to then address the issue of retention. The evolution of the law on retention is discussed later in this workbook, however it is safe to say here that the general rule required that they satisfy anyone of three available retention requirements located in Step 4 on Chart 1. Failure to meet the retention requirement resulted in the loss of U.S. citizenship acquired at birth.

Generally an exemption from the retention requirements of historical periods 2 and 3 is available for any child whose U.S. citizen parent was employed by the U.S. government or certain organizations specified under §201(g) of the 1940 Act [had "qualifying employment"] at the time of their birth, however, this exemption from the retention requirement was not available to any child whose "USC/serving honorably in U.s. Armed Forces" parent used a Special Provision in historical period 3 in order to transmit U.S. citizenship to the child at birth. Thus we see that honorable service in the U.S. Armed Forces could facilitate the use of a special provision, or as U.S. government employment provide exemption to a child from the retention requirements, but not both at the same time, When a USC parent uses a special provision to transmit U.S. citizenship to its child, such a child will have to meet retention requirements 100% of the time in order to retain U.S. citizenship.

Example I: Peggie was born in 1943 in Paris, France. Her father .was Jeff, a USC who lived in the U.S. from his own birth until

WORKBOOK; Nationality LaW

ICE ACADEMY Fall· 2007

Absence abroad in the u.s. armed forces during the period of physical presence required by INA § 301 (b), as amended, for retention of u.s. citizenship, is regarded as constructive physical presence in the United States within the meaning of that section. ~ Matter of Sza;iai. 101 &N. Dec. 103 (1962)

29

1941, when at the age of25 he moved to Paris, France. In 1942 Jeff married Valerie, an alien, and Peggie was born One year later. Peggie spent five years in the United States from the age of

15 to 20 before where she currently lives.

United States for more than 10 years. and at least 5 ofthose years were after the age of16. Jeffdid,not have qualifYing employment at the time of Peggie's birth ,so,she had to meet retention requirements. Peggie was able to retain.the U.S. citizenship status she acquired at birth because she spent 5 years in the U.S. between the ages 005 to 20.

Example 2: Pat was born in 1944 in England to a USC father and alien mother. Her father Ken, lived in the u.s. from his own birth until 1942, when at age 19, he enlisted in the Army Air Corps and was sent to England. Ken married Pat's mother, an Englishwoman. in 1943, and one year later Pat was born. Ken served honorably in the Army Air Corps until 1950. Pat has never been to the U.S. or an OLP.

Pat is a USC todav. Pat acquired U.S. citizenship at birth because her usc father met thel0 years/5 after age 16-residency requirement, having prior to Pat's birth obtained 19 vears of actual residence in the U.S. and two additional vears of constructive residence due to his honorable service with the U.S. Armed Forces: Furthermore. because Kerthad "qualifYing employment" when Pat was born, she was exempt from having to meet a retention requirement. Pat wasbom a USC and remains a USC even though she never came to the United States or an OLP.

Example 3: Martha was born in. 1944 in England to a USCfather and an alien mother. Her/ather, Joe, lived in the United States , from his own birth until 1943, when at age 17, he enlisted in the. Army Air Corps and was sent to England; Joe married an Englishwoman that same year and Martha was born in 1944. Joe was honorably discharged in 1946; and the. whole family remained' in England. Martha has never been in the United States or an

OLP.

Martha is an alien today, Atthe time of Martha's birth in 1944,

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WORKBOOK: Nationality Law

ICE ACADEMY' '. .. Fall- 2007

Joe had 17 years otactual residence in the u.s.. and had been abroad serving honorablv in the u.s. Armed Forces fOr one year. After counting Joe 's time abroad as constructive residence in the U.S. he still only has a total of] 8 years residence. He could not meet the general residency rule. which required 10 yearsl5 afi;er age 16. Joe. however. was entitled to use the more relaxed requirements ora Special Provision as he served honorably in the u.s. Armed Forces between 121711941 and 1213111946. Using the first ofthe two Special Provisions. Joe met the 10 yearsl5 after age 12 residency requirements. and was able to transmit U.S. Citizenship to Martha at birth. However, because her father had used a Special Provision to transmit U.S. citizenship to her at birth, Martha could not claim an exemption from retention requirements and she needed to meet one ofthe retention requirements to keep her u.s. citizenship. As Martha has never been to the United States or an OLP, she lost citizenship once it was impossible fOr her to meet the retention requirements, to wit: the day other 26th birth{1av,

The Retention Requirements

Section 201(g) and (h) of the 1940 Act created and set forth the initial retention rules for births subsequent to May 24, 1934 ...

) stating that, "A person born outside the United States and its outlying possessions ... Provided, That in order to retain such citizenship, the chlld must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years; Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or ifhe resides abroad for such a time thatit becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease."

Persons already in the process of complying with the requirements of Section 201 (g) of the 1940 Act when the INA [1952 Act] became effective or who, prior to December 24, 1952, had taken up residence in the United States before reaching age 16 could opt to comply with the requirements of either section 201(g) of the 1940 Act or section 301(b) of the INA [1952 Act].

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section 301(b) INA, as originally enacted, stated that: " Any person ... , shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twentythree years and shall i.nnD.ediately following. any such coming be continuously physically present in the United State[slat least five years: Provided, That such physicafpresence follows the attainment of the age of fourteen years and precedes the age oftwenty.-eight years. Section 301(c) rNA [1952 Act] applied the requirements of section 301 (b) to persons born between May 24, 1934, and December 24, 1952, who were subject to, but had not complied with, and did not later comply with, the retention requirements of section 201(g) or (h) of the 1940 Act.

A two-year retention requirement ,was, substituted retroactively in 1972, thus making the rule 2 years physical presence between the ages.oti4aiu128. and in effect making such a option available aUtheway1>a.c~to May24. j934~ .'

Repeal of the Retention Requirement

On October 10, 1978, Congress repealed the retention requirement but prospectively only. This meant that persons who had acquired' U.S. citizenship at birth, who were subject to retention, and who still had the ability to meet the retention requirement as of October 10, 1978, were no longer required to meet retention. However, persons who in times past had acquired U.S. citizenship at birth but subsequently lost their U.S. citizenship status due to their failure to meet the retention requirement were not helped by the

1978 legislation. •

Prior to 1995, the only defenses recognized by tP.~ DOS to render retention requirements inapplicable, which individuals could assert to excuse their noncompliance.Involved unawareness of a claim to citizenship, impossibility of complying with the retention requirements, and official misinformation [See, 7 Foreign Affairs Manual [FAM] 1133.5-16 through 7 PAM 1133.5-19].

In an effort to give relief to those persons who lost D.S. citizenship by reason of their failure to meet retention requirements, Congress passed The Immigration and Nationality Technical Corrections Act of 1994 ("INTCA"), which made non-retroactive restoration ofD.S. citizenship available to such persons pursuant to the guidelines set forth in INA § 324, subject of course to the

WORKBOOK: Nationality Law

Sec. 1, Act of Oct. 10, 1978, Pub. L. No. 95-432,92 Stat. 1046. The INS construed the 1978 Act liberally ruling that retention requirements were no longer applicable to'persons born on or after October 10,1952, i.e. those who, on October 10, 1978 could still have met the two-year retention requirement and thus had not yet lost citizenship for failure to meet that requirement. See INS Interpretations 301(b)(6) xii. Thus, persons born on or after October 10,

1952 were relieved of the retention requirement.

In Rogers v. Bellei, 401 U.S. 815 (1971), the Supreme Court upheld the constitutionality of section 301 (b) INA and held that a person who had ceased to be a U.S. citizen by failing to comply with section 301 (b) hadnot been denied of his constitutional rights.

Rucker v. Saxbe. 552 F.2d 998 (1977), indicates that unawareness of the requirements of section J01(b), when accompanied. by tin awareness of a claim to U.S. citizenship, do not prevent application of the retention requirements. the Supreme Court declined to review the tower court's decision in Rucker.

ICE ACADEMY Fall- 2007

32

\ j

prohibitions found in INA § 313. Under INA § 324, eligible persons who lost U.S. citizenship on account of failing to meet the retention requirement can restore their U.S. citizenship status without filling out a special application for naturalization, but by simply taking an oath of allegiance. Since restoration of citizenship under INA § 324 is non-retroactive, such persons would be regarded as aliens until such time as the oath is taken. Accordingly, it is possible that such an alien might on the one hand find himself inadmissible to or deportable from the U.S. and on the other hand eligible for non-retroactive restoration of citizenship under INA § 324!

Period 4: Births on or after December 24, 1952 and prior to November 14, 1986

Description: Persons born abroad to two USC parents acquired citizenship at birth if at least one of the parents had resided in the United States prior to such birth. However, persons born abroad to one U.S. citizen parent and one alien parent acquired citizenship at birth if the U.s. citizen parent had been physically present in the U.S. for a total of 10 years, at least 5 of which were after the age of 14. Constructive physical presence rules were liberalized retroactively, as indicated by the current INA § 301(g), to include periods spent abroad by the USC parent in honorable service with the U.S. Armed Forces and while employed by the U.S. government or certain international organizations (or as the dependent unmarried son or daughter of the household of such an employee). All of such time counted as constructive physical presence for purposes of meeting the physical presence requirement from 12124152 until the present day. The retention requirements do not apply to persons born during this historical period.

Example: In 1960, Gertrude was born in wedlock in Germany. Her mother was an alien. Her father was David, a USC who lived in the United States from his own birth until age 17, when he enlisted in the Army and was sent to Germany. When Gertrude was born to David and his wife he was 19 years old. David was honorably discharged from the Army in 1965.

Gertrude was a u.s. citizen at birth because her father met the 10 years/5 after age 14 physical presence requirements. David had lived in the United States until age 17 and spent two years abroad

WORKBOOK: Nationality Law

ICE ACADEMY Fall .. 2007

In considering what constitutes "employment with the United States Government" USCIS takes into account 5 Us.c. 2105 and other sections of the US. Code and the Code of ' Federal Regulations that define the status oj certain types o/personnel. Factors are whether the person occupies an allocated position, whether the person's name appears on the payroll oj a Department or agency, whether the person has a security clearance or took an oath oj office, and whether the Government has the right to hire and fire the person and to control the input and the end result ofthe employee's work

International organization is a term defined in section 1 of the International Organizations Immunities Act (59 Stat. 669,. 22 U.S.C. 288) Section 288, Title 22, U.S. Code states that.'

" ... the term "internationalorganization" means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter. n

~ 7 F AM 1133 - Exhibit 1133.3-3 for a list of the organizations designated

by Executive Orders, on the dates shown, as public international organizations pursuant to 22 U.S.C. 288.lfthe designation has been revoked, information about the revocation has been included. Employment abroad with

33

in honorable service in the u.s. Armed Forces prior to Gertnide's birth. By combining David's periods of actual and constructiVe physical presence in the U.S .. Ddvldwas able to meet the legal requirements and transmit u.S. Citizenship to Gertrude at birth. Gertrude had no retention requirement.

Period 5: Births on or after November 14, 1986

Description: Currently, persons born abroad to two USC parents acquire citizenship at birth ifat least one of the parents resided in the U.S. prior to such birth. Persons born abroad to one U.S. citizen parent and one alien parent acquire citizenship at birth if the U.S. citizen parent had been physically present in the United States for a total of 5 years, at least 2 of which were after the age of 14. Periods spent abroad in honorable service to the U.S. Armed Forces by the USC patent; or while employed by the U.S. Government or an international organization (oras the dependent unmarried son or daughter of the household of such an employee) count as constructive physical presence in the U.S. for purposes of computing the 5 years/2 after age 14 physical presence requirement. Persons born during this historical period are not subject to retention requirements.

Example: In 1995~ Juana was born in wedlock in Mexico.

Juana's mother was Maria, a former Mexican citizen who was admitted to 'the u.s. as a lawful permanent resident in 1980 at age 20, and later naturalized as a USC in 1987. Maria continued to reside in the United States untitJ993 when she returned to Mexico and married Pedro, an alien, in 1994. Juana was born one year later ..

Juana acquired U.S. citizenship at birth because her mother Maria met the 5 yearsl2 after age 14 phYSical presence requirements prior to Juana's birth. Juana had no'retention requirement.

Individuals that immigration officers will encounter in the course of enforcing the immigration laws of the U.S. in the interior of the country, will often have already presented themselves at U.S. embassies and consulates overseas to present claims to V.S. citizenship. A consular officer reviews such' a claim in accordance with the nationality laws of the applicable historical period. When an overseas post of the V.S. Department of State [DOS]

WORKBOOK: .. Nationality Law .

any of the listed organizations while the designation was in effect may be counze. as physical presence in the United States.

Effective November 3, 1986, physical presence in the Commonwealth of the Northern Mariana Islands constitutes physical presence in the United States for purposes of INA § 301(g)

A Consular Report of Birth Abroad (Form DS-2029, instructions) is an official record oflJ.S. citizenship issued to a person under age 18 who was born abroad to United States citizen parent(s) and acquired citizenship at birth. Schools, the Social Security Agency, and other institutions throughout the United States accept it and give it the same credence they give to birth certificates issued by

34

ICE ACADEMY Fall- 2007

determines that a person applying for documentation as a U.S. state authorities in the United States.

citizen has no claim. to u.s. citizenship at birth, they are required-

to prepare a lookout form (Fonn DS-1589) for entry into the

Department's lookout system. [See, 7 FAM 1131.8]. Depending

upon the nature of the investigation, access to these DOS records

may prove helpful in the investigation and prosecution of criminal

cases or removal proceedings.

NnSCELANEOUSBIRTHS

Births in wedlock abroad have occurred between a USC and a U.S. national. What is that child's citizenship status at birth? In order to transmit U.S, citizenship to a foreign bom child under

INA § 301(d) [formerly INA § 301(a)(4)], a USC parent married toa U.S. national (a person owing permanent allegiance to the. United States who is neither a U.S. citizen nor an alien) must have been in the United States or an outlying possession for a continuous period ofl year at any time before the child's birth. Any absence, even for U.S. military service, breaks the continuity of the period of physical presence.

)

Births have occurred in an OLP, of parents, one of which is a USC. What is that child's citizenship status at birth? Section 201(e) of the 1940 Act stated how U.S. citizenship could be acquired by birth in outlying possessions. A person born in an outlying possession of the United States of parents one of whom is a citizen of the United States, who resided in the United States or one of the outlying possessions prior to the birth of such person, is a national and citizen of the United States at birth. Section 301(e) INA [formerly 301 (a)(5)] amended the 1940 Act and stated that a person born in an outlying possession of the United States of parents, one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person, is a national and citizen of the United

States at birth. .

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<, J ICE ACADEMY Fall- 2007

1/13/1941], a child of unknown parents, found in the United States, was presumed to have been a u.s. citizen at birth until shown not to have been born in the United States no matter at what age this might have been demonstrated.

Congress enacted special legislation governing the conditions under which U'S. citizenship may be acquired by birth in Panama and the Panama Canal Zone. The Republic of Panama, by a Convention that became effective on February 26, 1904, granted the United States sovereignty over an area of about five miles on either side of a canal that Was to he built across the Isthmus of Panama to connect the Atlantic and Pacific Oceans. U.s. sovereignty over the Panama Canal Zone ended on October 1, 1979 in accordance with the Panama Canal Treaty.

Any person born in the Panama Canal Zone on or after February 26,1904, and whether before or after the effective date of the 1952 Act, whose father or mother of both at the time of birth of such person was or is a citizen of the United States, is declared to be a citizen of the United. States [See, INA § 303(a) (8 U.S. Code 1403(a)]. This is not the only legislation to apply to children born in Panama. For those born outside of the Panama Canal Zone to U.S. citizens employed by the U.S. Government or the Panama Railroad Company. INA § 303(b) (8 U.S. Code 1403(b» states that:

Any person born in the Republic of Panama on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of birth of such person was or is a citizen of the United States employed by the Government of the United States orby the Panama Railroad Company, or its successor in title, is declared to be a citizen of the United States.

This provision is the same as those in § 203(b) of the 1940 Act and § 2 of the Act of August 4, 1937 (50 Stat. 558). Because it applies retroactively, it is not necessary to refer to the prior versions for citizenship determination purposes; they are of historical interest

only. Under all three sections, a child born in Panama on otaftet ''',' February 26, 1904, to a U'S, citizen employee of the, U.S. ,," :,' Government or the Panama Railroad Company is automatieallya v-. U.S. citizen at birth even ifthecitizen parent hadneverpreviQilsly .' resided or been physically present in the united States. The child

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ICE ACADEMY .,' . ' '.',"., " ,

Fall- 2007

is not required to take any particular steps in order to retain citizenship. Legitimation is required for a child born out of wedlock to a male u.s. citizen engaged in qualifying employment. A child born out of wedlock to an American woman employed by the U.s. Government or the Panama Railroad Company acquires U.S. citizenship at birth.

Evidence to prove a claim to U.S. citizenship under INA § 303 (b) would include:

(1) The child's Panamanian birth certificate or other proof of the child's birth to a U.s. citizen (the blood relationship must be established);

(2) The parents' marriage certificate, if applicable; and

(3) Proof of the citizen parent's employment by the u.s.

Government or the Panama Railroad Company at the time of the child's birth.

)

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ICE ACADEMY Fall- 2007

CHART 1 EXERCISE

This is the story of Bert, Ernie, Sam and Paul (all USCs). Their situations are used to further illustrate retention requirements for historical period 3, that is, for births on or after January 13,1941 and prior to December 24, 1952.

BERT

ERNIE

PAUL

SAM

Enlisted in the U.S. Enlisted with Bert Went to England Went to England at age
military in 1942 at the at the age of 17 on his own at the . 22 as an employee of
age of 22 and was sent and was sent to age of 17 to an organization
to England where he England where he study history. specified under §201(g)
served honorably. served honorably. of the 1940 Act. Married an English Married an English Married an Married an English
national who gave national who gave English national national who gave birth
birth to his child in birth to his child in who gave birth to his child in 1943.
1943. 1943. to his child in
1943. )

Bert's child had no Ernie's child had to Even if Sam's Paul's child had no
retention requirement. meet a retention child lives in the retention requirement.
requirement: U.S. later in life
• 5 years he is not a U.S.
residence in U.s. citizen by virtue
or OLP between of his birth
ages of 13 and abroad to Sam.
21; or,
• 5 years
continuous
physical
presence in U.S.
between ages 13
and 21; or
• 2 years
continuous
physical ,
presence in U.s.
between ages 14
and 28. Why is there a difference in results amongst the four children?

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WORKBOOK: Nationality Law

ICE ACADEMY Fall- 2007

REVIEW QUESTIONS

In each of the following problems, determine if the child's status is a USC, U.S. national, or an alien. Explain your answers in detail.

1. Ricardo was born in Miami, FL in 1982 to Nigerian parents who were here as temporary visitors. Did Ricardo acquire U.S. citizenship at birth and why?

\j /.0> So~\

(bi :l j

2. Daphne was born to French parents on February 15,1990, aboard a u.S. airliner that was flying over Cleveland, Ohio on a direct flight from England to Denver, CO. Did Daphne acquire U.S. citizenship at birth and why?

)

3. Monique Jacques, the daughter of Haitian parents, was born on 'the high seas [i.e. international waters] aboard a u.s. Coast Guard vessel en route to Miami, FL. Did Monique acquire U.S. citizenship at birth and why?

.. ",eo? 50'

1 'DC 6.r

.\D \0

,'" 1

4. John Smith was born on September 10,1986, in New York, NY. At that time, his parents, both citizens of Belgium, lived in N ew York City where his father served as a United Nations official. He was listed on the State Department's Blue List. Did John acquire U.S. citizenship at birth and why?

,~ t.. ,*,0,

\,\0,., ~,..tG\

5. Nancy was born in the United States Embassy in Paris, France, in 1975. Her parents were aliens, regularly employed at the embassy. Did Nancy acquire U.S. citizenship at birth and why?

"-_\ 0 '''''. ,

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WORKBOOK: Nationality Law

ICE ACADEMY Fall- 2007

6. State the dates of the five historical periods during which the laws affecting acquisition of U.S. citizenship by a person born in wedlock abroad were in effect.

'V,i .. e- r IctJLf, ;/l.J1 /111t-jJr{ ~ k~.kr

s 114/3'-1 4< ) I 1- "

II/,lL/I .( 1111'4/5

/1../2.41 S?- tf; I II) 1-//8"

7. On or after January 13,1941 and prior to December 24,1952 a child born abroad to a USC and an alien parent, who acquired U.S. citizenship at birth, mayor may not have been subject to retention requirements. In each of the following examples, state if the child who was a u.s. citizen at birth must meet retention requirements and explain why.

a. The usc parent met the 10/5 after age16 residency requirement and. was a student living abroad at the time of the child'S birth. «

~ (J

• 0 -,{lD if )o""1.f"

"\ [1, '\) \ '0 '" ~'(

b. The usc parent met the 10/5 after age 16-residency requirement and was stationed abroad with a U.S. military unit at the time of the child's birth,

'\. ~r<-~

'JSv

c. The USC parent met the 10/5 after age Iti-residency requirements and was employed abroad by an organization specified under §201(g) of the 1940 Act at time of the child's

birth. '

r ' \ n , \le

;:/"J V' \ b c.S IG./

d. The usc parent met the 10/5 after age 12 residency requirements [i.e. special provision] and was a GI during WWII.

e. The USC parent met the 10/5 after age 14 physical presence requirements [i.e. special provision] and was serving abroad honorably with the U.S. Army Air Corps at the time of the child's birth.

40

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8. A child was born in wedlock in Ireland in 1930. His mother was a USC who had resided in New York for six years prior to the child's birth. His father was a British subject who never lived in the U.S. What is the child's citizenship status today?

9. A child was born in wedlock in Mexico on May 1, 1940 to USC parents who themselves were born in the U.S. to Mexican parents. What is the child's citizenship status today?

10. A child was born in wedlock in Australia in 1947. His mother was Australian and his father was a USC who was born and raised in Omaha, Nebraska. In 1945 at age 17 he enlisted in the U.S. Army, Two months later he was transferred to Australia where he met and married the child's mother. He served honorably in the U.S. Armed Forces until 1952. The family has remained in Australia permanently. What is the child's citizenship

. status today? .

, ,\,,\b r

i /

11. A child was born in Guam on October 1, 1953. His father was a USC who had . resided in Guam from 1947 until 1949. His mother was a U.S. national born in American Samoa. She had resided in American Samoa and only came to Guam for the birth of child. What is the child's citizenship status today?

12. A child was born in wedlock in Spain to two USC parents on July 12, 1961. The child's father attended Penn State University from 1950 to 1956, but his mother had never been in the U.S. or an OLP prior to the child's birth. The child has remained in Spain and claims to be a Spanish citizen. What is the child's citizenship status today?

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./ ICE ACADEMY Fall- 2007

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13. A child was born in wedlock in Hong Kong in 1933. His mother was a native-born USC who lived in San Francisco, CA from 1906 to 1921 and his father was a Chinese citizen. The child attended college in the U.S. from 1953 to 1958 and upon graduation returned to his home in Hong Kong. What is the child's citizenship status today?

14. John Thompson was born on January 6, 1923 in Los Angeles, CA where he lived until the age of 6 when he went to Peru with his parents. The family lived in Lima, Peru, where John's father worked for a private U.S. business finn for the next 10 years.

John returned to the U.S. at the age of 16 and remained here until reaching the age of 20 on January 6, 1943 when he was inducted into the u.s. Armed Forces and sent with his company to England. In England, he married an English woman and they had a son, Rick, born on March 17, 1945. John Was honorablydischarged from the U.S. Army in 1946. What is Rick's citizenship status today and was he subject to retention requirements?

15. A child was born in Canada in 1948 to a married couple. The father was a USC and the mother was an alien. Both parents were born in Canada but lived in North Dakota from 1939 to 1946 and then returned to Canada. None of the family has been in the U.S. since 1946. What is the child's citizenship status today?

16. A child was born in wedlock in England in 1944 to a USC father and an alien mother. The child's father lived in Kansas City, Kansas from birth until he joined the U.S. Army Air Corps in 1942 at the age of 18 and was stationed in England where he married a Freri.chnational. 'The father served honorably in the U.S. Armed Forces until 1949. The childhas never been to the U.S. What is the child's citizenship status today?

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ICE ACADEMY ..

Fall- 2007

'v~ I; (\

, . t\c' ~p<

Chlldren Born Abroad out of Wedlock' Chart #2

.
Birth date of child . 'To u.S.Cfm'EN'MOTHER·"';
Prior to Mother had resided in the U.S. or an OLP at any time prior to the child's birth
5/24/34 (retroactive grant by §20S of the 1940 Act - effective 1/13/1941) ..
A child did not acquire U.S. citizenship retroactively under §205 of the 1940 Act if the facts reveal that its
alien father legitimated the child prior to 111311941 ilmi such legitimation occurred before the child's 21 at
birthday,
OnIafter 5/24/34 & Mother had resided in the u.s. or OLP at any time prior to the child's birth.
prior to 12124/52
OnIafter Mother had one year of continuous physical presence in the u.s. or OLP at any time
12124/52 prior to child's birth.
To U.S. Cmz.EN MOTHER AND U.S. CrrIZEN FATHER
1. USC mother unable to transmit.
2. USC father legitimates (refer to time periods below for appropriate statute).
3 a. One parent had resided in U.s. prior to child's birth (prior to 1/13/41).
3 b. One parent had resided in U.S. orOLP prior to child's birth (after 1113/41).
Birth date of child To U.S. CITIZEN FATHER AND ALIEN MOTHER - CHILD LEGITIMA'l'ED
Prior to 1. Child legitimated at any time after birth under laws of father's domicile.
5/24/34 2. USC father had resided in U.S. prior to child's birth.
OnIafter 5/24/34 & 1. Child legitimated at any time after birth under laws of father's domicile. .
prior to 1113/41 2. USC father had resided in U.S. prior to child's birth.
3. Child met retention requirements - see historical period 2 of CHART 1.
OnIafter 1/13/41 & il/. Child legitimated before age 21 under laws of father's domicile or by paternity .
priorto 12124/52 established by court adjudication.
2. usc father, prior to child's birth, had met the required residence - see historical period f of CHART 1.
3. Child met retention requirements - refer to historical period 3 of CHART 1.
On/after 12124/52 1. Child legitimated before age 21 under laws of father or child's domicile.
& prior to 11114/86 2. Child legitimated PRIOR to 11114/86.
3. Child must be unmarried.
4. USC father, prior to child's birth, physically present in u.s. or OLP 10 years, at
least 5 after age 14*.
(A child bomon/after.l1114I(i8,(;)an opt to follow rules in historical periodS)
Relationship ,::r::<:.):U.S; CITIZEN FATaER AND ALIEN MO'IHER -C!m;n LEGITIMATED.oR .. ~
established 'ACkNOWLEDGED.' .. ,. ..
On/after 1. Child legitimated OR acknowledged before age 18:
11/14/86 Legitimated under law of child's residence or domicile, OR
Paternity acknowledged in writing under oath, OR
Paternity established by court adjudication.
2. Blood relationship established between father and child by clear and convincing evidence.
3. Father (unless deceased) has agreed in writing under oath to provide financial support until child
reaches age 18.
4. Child must be unmarried.
S. USC father, prior to child's birth, physically present in U.S. or OLP 5 years, at least 2 after age 14*.
These provisions also apply to persons who were under 18 as of11!l4/86. Those between ages IS and 18
on 11/14186 could elect to have the legitimation rule in effect prior to the 1986 amendment apply to them. .
I * Periods of honorable service in U.S. Armed Forces, employment with u.s. government, or employment with an international organization [or I
as unmarried son or daughter member of the household of such employee] are included [Le, as constructive physical presence]. 43

WORKBOOK: Nationalitv Law

ICE ACADEMY Fall- 2007

CBART2

Chart 2 illustrates the requirements for a child to acquire United States citizenship ifbom abroad [meaning not in the U.S. or an OLP] and out of wedlock to one or more USC birth parents. Under anyone of the following conditions, a person may be considered to have been born out of wedlock:

.:. Mother. lit time ()fthe child's hirth, w,a~n.1P.D;lap;j¢. (. Gb.ilgwliSt11e result of a bfgalnobs otp6iygahlcilis relatio~hip. __

.:. C1rl1d was the result of an admitted adulterous affan-.

Chart 2 is divided into three sections. The top section of Chart 2 applies to children born out-of-wedlock to a USC mother and alien father. The middle section of Chart 2 applies to children born out of wedlock to a USC mother and a USC father. Finally, the bottom section of Chart 2 applies to children born out of wedlock to a USC father and an alien mother.

\ /

Legitimation is an action by whicha child porn out of wedlock is::; placed in the same legal position as a child born ii1 wedf6c~~ The' requirements for legitimation vary between different states and countries. For example, in some jurisdictions, marriage between the natural parents will constitute legitimation. However, in other jurisdictions, legitimation may consist of an administrative process or judicial order after court adjudication. Because legitimated children are deemed to be in the same position as children born in wedlock, such children are subject to the same retention requirements applicable to children born in wedlock on or after 5/24/34 and prior to 12124/52. Likewise, the USC fathers of legitimated children are subject to the same residency requirements applicable to USC fathers of children born in wedlock during the same historical period.

.Acknowledgment, while less formal than legiti111atiQ1l,,"isQ~~,' .. riiethOdby\vbichB: U$.G.father 'can establish or recognize paternity bta c1ll1dbbmout of -Wedlock. For children born prior to 11114/68

and out of wedlock to a USC father and an alien mother, normally legitimation by the USC father was required for the child to retroactively acquire U.S. citizenship. For children born on or after 11/14/68 and out of wedlock to a USC father and an alien

WORKBOOK: Nationaljty Law

ICE ACADEMY Fall· 2007

Legitimation is the giving, to a child born out of wedlock, the legal status of a child born in wedlock, who traditionally has been called a "legitimate" child. Thus, legitimacy is a legal status in which the rights and obligations of a child born

out of wedlock are identical to those of a child born in wedlock This status is generally relevant primarily to the rights of the child vis-a-vis its naturalfiuher.

Legitimation has been fort her d4ined by administrative precedent as "the act of putting a child born out ofwedlock in the same legal position as a child born in wedlock " Matter of Cabrera, 21 L &. N. Dec. 589 (BIA 1996).

To have citizenship consequences, legitimation must be accomplished under the law ofthefather's domicile and after 11/14/1986 under the law of the child's residence or domicile. Thus, what constitutes legitimation depends on the domestic laws of the pertinent state or foreign country. Generally, however, legitimation may be accomplished by the marriage of the natural parents as well as by a formal recognition of paternity if the laws of the country of the child's or father's domicile have abolished all/ega/ distinction between children born in wedlock and children born out of wedlock

See 7 F AM 1133 Exhibit 1133.4-2 for a list of the states in which a subsequent marriage of the parents will serve to legitimate a child.

For a summary of u.s. laws on legitimation without marriage,

S££, 7 FAM 1133 Exhibit 1133.4-2, Part DL Or you can go to the web and see the info at:

http;/lgcdocs.ice.dhs.govldscgilds.pylVie w/Collection-1465

44

mother, legitimation, an order of paternity, or acknowledgment by the by the USC father are all options for the child to retroactively acquire u.s. citizenship.

The following steps should be followed when using Chart 2:

STEP 1: Determine the child's date of birth.

STEP 2: Determine if the child had one or two USC parents at birth. If only a usc mom, then you work the top of Chart 2. If only a USC dad, then you work the bottom of Chart 2. The middle of the chart is reserved for out of wedlock births to two USC parents.

STEP 3: Determine the ainount of time, if any, that the USC parentt' s) resided in or was physically present in the U.S; or OLP{when applicable) prior to the child's birth. Residence in the U.S. will be based upon the definition of residence in effect during the relevant historical period. If a USC mother meets the residence requirement, the child acquires U.S. citizenship at birth.

If the child has a USC father, U.S. citizenship will not be acquired Until all requirements [ except retention] listed on Chart 2 within the applicable historical period are satisfied. This would, include; among other things, the legitimation, a court order of paternity, or acknowledgment by the USC father of the child. Upon 'completion of all non-retention related requirements, a child would retroactively acquire U.S. citizenship to the date ofbirtb.

In the two historical periods where retention is an issue, determine if the child has ever resided in or been physically present in the U.S. or OLP. Some children born out-ofwedlock to a USC father on or after 5/24/34 and prior to 12/24/52, must reside in or be physically present in the U.S. or,OLP to retain the U;S.citizenship status they acquiredthrough their USc father. This retention requirement, when applicable, must be satisfied prior to the child reaching a certain age as specified in Chart 1. When retention is applicable to out of wedlock children, Chart 2 specifically refers the reader to the retention requirements listed in Chart 1.

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The following is an overview of the historical periods covered by Chart 2 with examples from each historical period.

Birth abroad - out of wedlock to United States citizen mother

Period 1: Prior to May 24, 1934

Description: An out of wedlock child born abroad to a USC mother prior to May 24, 1934 acquired United States citizenship on January 13, 1941 when § 205 of the Nationality Act of 1940 became effective, and such citizenship was made retroactive to the child's date of birth. However, a child born in this historical period did not acquire retroactive U.S. citizenship ifhe or she was legitimated by the alien father prior to January 13, 1941 and before the child tumed 21.

Example 1: Sandra was born on May 5, 1927 out of wedlock in Canada. Her mother was Joan, a USC who had resided in the United States prior to the birth of Sandra. Her father was Canadian.

'.

)

At birth in 1927 Sandra was an alien. With the passage of§ 205 of the 1940 Nationality Act effective on January 13. 1941. Sandra became a usc. Such citizenship was made retroactive to her date of birth in 1927.

Example 2: Peter was born in Italy on April 20, 1928 out of wedlock to a USC mother who had resided in the United States prior to the birth of Peter. Peter was legitimated by his alien father in 1938.

Peter was born an alien. He did not acquire retroactive U.S. citizenship under § 205 of the 1940 Act because his alien father legitimated him prior to January 13. 1941 while Peter was less than 21 years of age. Peter was born an alien and remained an alien.

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Prior to the Nationality Act of 1940 there was no statutory provision dealing with the citizenship status of children born out of wedlock to USC mothers. Congress found it appropriate, in the case of children of unwed mothers, to relax the residency requirements of Section 201. The United States had always applied the rule of jus soli, that is, that the place of birth governs citizenship status. Many other nations of the day, however, applied the civil-law rule of jus sanguinis, under which citizenship is acquired principally based upon the blood relatio1l3hip with a parent. Against the background of the American rule of jus soli, the result of these jus sanguinis laws was to create a risk of statelessness among the foreignborn children of unwed United States citizen mothers. Such children, having been born abroad, would not be citizens of the United States by birth under the Fourteenth Amendment. But, unless the mother had dual citizenship, the children generally would not, due to the United States citize1l3hip of the mother, be citizens of any foreign country. Thus, unless the law of the United States was made to accommodate the jus sanguinis rules of other nations, those children would not be citizens of any nation.

{Taken from Nguyen v. I.N.S., 2000 WL 1868100, United States Supreme Court Respondent's Appellate Brief].

Section 201 (e) of the 1940 Act stated how U.S. citizenship could be acquired by birth in outlying possessions. Section 205 NA made Sections 201(e) applicable to children born out of wedlock provided paternity had been established during minority, by legitimation, or adjudication of a competent court

46

Period 2: On or after May 24, 1934 and prior to December 24,

~

Description: An out of wedlock child born abroad to a USC mother on or after May 24, 1934 and prior to December 24, 1952 acquired-United States citizenship at birth if the mother had resided in the United States or Outlying Possessions at any time prior to the child's birth.

Example: Jenny was born in China in 1935 out of wedlock to a USC mother who had resided in the United States prior to Jenny's birth. Jenny was legitimated by her Chinese Father in 1940.

Jennv was a USC at birth. and the legitimcition by her alien father in 1940 did niJta{fect her citizenship sti:ttus because she was born

after May 24. 1934. ;.

, ••• "<

Period 3: On or after December 24. 1952

Description: An out of wedlock child born abroad to a USC mother onor after December 24, 1952 acquired United States citizenship at birth if the mother had one year of continuous physical presence in the United States or Outlying Possessions at any time prior to the birth of the child.

Example: Nneka was born in Japan in 1995. Her mother was a USC who had never resided in the United States but had been physicaily present in the American Samoa for two years between 1992 and 1994. Her father was Korean.

Nneka, is a USC at birth because her mother had 1 vear of continuous. ph~ical presence in one of the Outlving Possessions

prior to her birth. ' ' '

Birth tlbroad ~out of wedlock to United States citizen father

Period 1: Prior to May 24. 1934

Description: A child born abroad and out of wedlock prior to May 24, 1934 to an alien mother and a USC father, who thereafter was

WORKBOOK; Nationality Law

ICE ACADEMY Fall- 2007

S~tion309JNAmade Section 301(e) applicabli to children bom out of wedlo~k in the outlying possessions.

47

-::

)

legitimated in accordance with the laws of the father's domicile, retroactively became a USC as of the date of his or her birth, if the father had resided in the United States prior to the child's birth.

Example: Don was born out of wedlock in 1930 in Italy to an Italian mother. In 1950 his USCfother, Bill, legitimated Don under the laws of Bill's domicile. Bill had resided in the United States prior to Dan's birth.

At birth in 1930, Don was an alien because he was bam to an alien mother on foreign soil. Upon legitimation by his USC father in 1950, Don retroactively became a USC to his date of birth.

Period 2: On or after May24, 1934 and prior to January 13, 1941

Description: A child born abroad and out of wedlock on or after May 24, 1934 and prior to January 13, 1941 to an alien mother and a USC father, who thereafter was legitimated in accordance with the laws of the father's domicile, retroactively became a USC as of the date of his or her birth, if the father had resided in the United

. States prior to the child's birth. Out of wedlock children who acquired citizenship had to meet the same retention requirements specified for children born in wedlock during this historical period of time. Refer back to Chart 1.

Example: Donna was born out of wedlock in 1935 in Poland to a Polish mother. In 1945 her USCfather, Bob, "legitimated Donna under the laws of Bob's domicile. Bob had resided in the United States prior to Donna's birth. Donna has never been to the United States or an OLP.

At birth in 1935. Donna was an alien because she was born to an alien mother on foreign soil. Upon legitimation by her USC father in 1945. Donna retroactively became a USC at birth. Donna. however. lost her u.s. citizenship because she (ailed to meet the retention requirements specified in Chart 1 for children born abroad in wedlock on or after Mav 24. 1934 and prior to January 13,1941.

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Period 3: On or after January 13,1941 and prior to December 24.1952

Description: A child born abroad and out of wedlock on or after January 13, 1941 and prior to December 24, i952 to an alien mother and a USC father, who thereafter was legitimated in accordance with the laws of the father's domicile before the child turned 21, retroactively became a USC as of the date of his or her birth, if the father met the same historical residency requirement required of a USC parent ofa child born abroad in wedlock in this period. Furthermore, in order to retain U.S. Citizenship, the out of wedlock child had to satisfy the same retention requirement specified for children born abroad in wedlock during this historical period. Refer back to Chart 1.

Example: Marline was born out of wedlock in 1945 in Guadeloupe to a French mother. In 1955, her '(JSCfatherJoe legitimated Marline, under the laws of Joe's domicile. Joe, before the birth of Marline, had resided in the United States from birth to age 25. Marline came to live in the United States at age 14 and went back to Guadeloupe at age 20.

At birth in 1945. Marline was an alien because she was born to an alien mother on foreign soil. Uy.on legitimation by her USC father in 1955. Marline retroactively became a USC at birth because her tather Joe had lived in the uS. for 25 years prior to her birth. and thus met the 10 years/5 after age 16-residengy requirement for transmitting citizenship to Marline. Marline never lost U.S. citizenship because she lived in the United States 6 years between the ages 004 and 20. thus meeting the retention requirement~

Period 4: On or after December 24. 1952· and. prior to

November 14. 1986

Description: A child bom abroad and. out of wedlock on or after December 24, 1952 and prior to November 14, 1986 to an alien mother and a USC father, acquired U.s. citizenship retroactively at birth if the following conditions were met:

~ the child was legitimated in accordance with the laws of the father's or child's domicile, while the child was unmarried and

WORKBOOK: Nationality Law.

Section 205 oj'the 1940 Act provided that paternity must be established during minority, thus placing a deadline upon the USC father to usaumenisieaponsibilities towards the child if he wanted the child.to be able to acquire U.S. citizenship.

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49

under 21, and before 11114/86; and

- the USC father, prior to the birth of the child, was physically present in the U.S. or OLP for 10 years, 5 of which were after the age of 14.

Example: Mary was born out of wedlock in 1954 in Argentina to a Spanish mother. In 1960, her USC father, Jack, legitimated Mary under the laws of Jack's domicile. Jack, before the birth of Mary, had resided in the United States from birth to age 20.

In 1954 Mary an alien. Upon legitimation in 1960, however. Mary acquired US. citizenship retroactively to her date of birth because her father met the 10 years/5 after age 14 physical presence requirements betore Mary's birth. Retention was not an issue in this historical period.

1986 amendments to legislation providing for acquisition of U.S. citizenship through natural father of child born abroad and out of wedlock

Description: Effective November 14, 1986, §309(a) of the INA, which provides for the transmission of U.S. citizenship by a U.S. father to a child born out of wedlock, was amended. Under the amended INA § 309(a), U.S. citizenship is transmitted retroactively to a child born abroad and out of wedlock to a USC father and an alien mother if the following conditions are met:

1. Before the child attains age 18:

a) the child is legitimated under the law of the child's residence or domicile; or

b) the father acknowledges paternity of the child in writing under oath; or

c) paternity of the child is established by adjudication of a competent court;

2. A blood relationship between the father and the child is established by clear and convincing evidence;

3. The father, unless deceased, has agreed in writing and under oath to provide financial support until the child reaches age 18;

4. The child is unmarried;

WORKBOOK; Nationaljty Law

USCIS must be satisfied by clear and convincing evidence that a blood relationship exists between the applicant and the alleged US. cuizenfiuher. This evidence must produce in the fact-finder a finn belief in the troth of the facts asserted, but does not need to reach the level of certainty requiredfor proof beyond a reasonable doubt. No blood test or any other specific type of evidence is required by the Act, but if such evidence is produced, it clearly assists the applicant in meeting the "clear and convincing" standard.

A statement of financial support is required except when the father is deceased. Afather who refuses to sign a statement of support prevents his child from acquiring U.S. citizenship. A child who cannot present a written support agreement by the father cannot be documented as a U.s. citizen unless it is proven that the father is dead. This is true even if the father cannot be located; unless dead. the father must be located tuul comply with the requirements of section 309(a), as amended, berore the child's 18th blrthrIav.

INA § 309(a), as amended by Sec. 13, Act of Nov. 14, 1986, Pub. L. 99-653, 100 Stat. 3655.

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5. The USC father has the required physical presence in the United States or Outlying Possessions as requited for children born in wedlock during the relevant period.

The amended statute applied to children who had not yet attained the age of 18 on November 14, 1986. In other words, children born on or after 11114/1968 could establish their relationship with a USC natural father by utilizing the more libera1level of proof under amended INA § 309(a).

Example: Sabrina was born out of wedlock in Ireland in 1987 to an Irish mother. Sabrina's father, Connor, was a USC who had lived in the U.S. before Sabrina'sbirth from the age of10 to 20. In 1995, w~en Sabrina was 8, Connor acknowledged paternity in writing and under and agreed in writing under oath to provide financial support for her until the tige of 18. He has provided the results ofa 2005 DNA that establishes a blood'relationship between himself and Sabrina,

Connor acknowledged Sabrina,prior to her18th birthdavas the law requited. Likewise he executed and was sworn to a written stcitementoffinancial support before her 18th birthday. Finally he can establish a blood relationship between himselfandSabrina by clear and convincing evidence with the results of the DNA testing he had done. The DNA testing did not have to occur prior to Sabrina's Ilfhbirthdqy. Sabrina became a USC retroactive to her date of birth.

REVIEW QUESTIONS

In each of the following problems, determine if the child's status is a USC, U.S. national, or an. alien. Explain your answers.

1. Rick Moran. was born out of wedlock on September 8, 1948 to Bob Moran, age 28, a self-employed USC civilian and Carla, an Italian citizen, in Ronie, Italy. Bob Moran was born and lived in the u.S. until he was 25., Rick was legitimated in September 1950, according to the law of Bob's domicile in Italy. Rick came to the Ll.S. at the age of 20 to

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study forestry at Port Angeles Community College in Port Angeles, W A. After completing the 2-year program, Rick returned to Italy and sought employment with a company manufacturing log cabins in northern Italy. What was Rick's citizenship status at time of birth in 1948?

Was Rick subject to retention requirements?

What is Rick'~ citizenship status today?

2. Jeff Williams was born out of wedlock on May 11, 1947, to Ron Williams, age 21, and Olga, a German citizen; in Germany. Ron was born in Georgia and had resided there until he joined the U.S. Armed Forces in May 1945. At the time of Jeffs birth, Ron had just completed his second year of'honoreble service in the U.S. Armed Forces. Jeffwas legitimated in July 1249 according to the laws of Ron's domicile in Germany. What was Jeff's citizenship status at time of birth in 1947?

DsL.

Once legitimated, did he acquire U.S. citizenship and, if so, is he subject to retention requirements?

)

./

Suppose Jeff was not legitimated unti11954, would this affect the case? Ifso, how?

3. A child was born in Canada out of wedlock to a USC mother who had resided in Boise, ID for 15 years prior to the birth of the child. The child was born in 1925 and was never legitimated. What is the child's citizenship status today?

U$.C-

Had his alien father legitimated the child on August 27, 1940, what would his citizenship status be today?

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Had his alien father legitimated the child in 1943 what would his citizenship status be today?

4. A child was born in Nicaragua in 1955 to an unmarried alien woman. The mother and son were lawfully admitted for permanent residence in 1965. In 1966 the child's mother married a USC. Although her husband is not the child's father, he adopted the child in June 1968. What is the child's citizenship status today? Wel~"

5. A child was born out of wedlock in Martinique in 1951 to a USC woman who had resided in New York for eight months and fifteen days in 1950. His alien father legitimated himin 1963 under the law of the father's domicile,

What was the child's citizenship status at birth?

What is his citizenship status today?

6. A native-born USC had lived in Michigan for 23 years before he went to Canada in 1968 and opened an antique shop. He met and cohabited with a Canadian national who was separated but not divorced from her husband. In 1970, a child was born to this Canadian woman of her relationship with the USC. What was the child's citizenship

status at birth? y\..N"

\ 1jV\)'

~".J ~\. .-~~~V

~~ (p\''''

Once her divorce became final in 1980, the USC and the woman described in the preceding problem were married in a civil ceremony in Toronto. -What is the child's citizenship status today?

7. Adam Chandler was born in Canada in 1905. He was born out of wedlock to a usc woman who was born in Maine and moved to Canada when she was 22 yeats old. The child was lawfully admitted to the U.S. for permanent residence in 1918. He resided with

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Fall- 2007

his grandparents until 1921 when he returned to Canada to reside with his alien father) who legitimated Adam that same year. What is Adam's citizenship status today?

!\ tl v«. '(j

HV~

I" A child was born out of wedlock in 1918 to an alien woman in Mexico. His natural father was a USC who had always lived in the U.S. In 1953 the parents married, thus legitimating the child. What is the child's citizenship status today?

V S~ ./

Vi. A child was born on Kodiak Island, Alaska on July 4, 1951 to an alien woman and a USC father who had lived in the U.S. for three months prior to the child's birth. What is the child's citizenship status today?

-, \ I /

,;6. Bobby was born in Ireland in 1944 to a USC father and an Irish mother. Bobby's

fa e . Detroit and joined the Eagle Squadron of the Royal

Canadian Air Force CAP) in 19 at the age of 18, and was immediately sent to

n and for training where e met and married Bobby's mother. The father was honorably discharged from the RCAP two months before Bobby's birth because of injuries incurred in combat. Upon discharge he chose England as his general place of abode and the entire family has remained in England. What is Bobby's citizenship status

today? ('-1 Pfr I' .' C- ~ kc) ~ Lct:: ~ ( 0 r;) ~

~

'fl 0 SNPy.{, ~(6~':.; ~.J.:>

ere ,,;-,>.7',l ~

..... _"" Y\-It- \) I 0 ;"'" f"'..(-J<

_ .\('f/'

LuiS was born abroad to an unwed alien woman on December 1, 1968. His father [Robert] was a USC who had not been outside the U.S. until age 20. Last week, he ' submitted a request for a Certificate of Citizenship. Included with the application was a written statement, under oath, wherein Robert acknowledged he was in fact Luis' biological father, a written statement) under oath, guaranteeing financial support for Luis until he turned 21, the results of a blood test establishing the father/child relationship, and an order by a competent court dated May 1, 2003; establishing paternity. What is Luis' citizenship status today?

_j ICE ACADEMY Fall- 2007

AL; C.J

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oJ(['

54

11..L ,12. Antonio Zamboni, who was born in Rome, Italy on April 2, 1911, gained u.s .

.>. citizenship at birth through his parents. He married Maria Talavera, an alien, on his 18th

birthday. As a wedding present, .to New York City for several days. After

their honeymoon, Antonio and . to Rome where they have lived until the

present time. Consider the citizenship status of their child, Teren "0, bornApril Zfi, 1934,

in Rome, Italy. )cD

__ \ L,\t~'{) ; J US (JSC ~~\()/V t qt-{O

~\~~,) ~

( , ~" , I" 'pucit.,./)£ D

.I {(.\(/.e,..L<"\-.l ~

, ~ 13. Isaac was born in n September 15, 1929. His mother was from

"l Tonga and his father w en who had acquired u.S. national status on

February 16, 1900. What is Isaac's citizenship status toda .

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A child may derive U. S. citiierishipdurlng the below listed historical periods if such child was under the statutory age AND:

1. the child was lawfully admitted [including adjustment of status] for permanent residence AND

2. the parent(s) naturalized .. It does not matter in which order the actions occurred.

Period in which last Child became a LPR Naturalization ofparent(s) prior to Remarks

action took place. before the statutory the statutory age of the child. age of:

Prior to 5124/34 21 years Either parent NONE

On/after

5/24/34 & prior to 1/13141

21 years

Either parent

u.s. citizenship effective 5 years from date child became a LPR. **

Illegitimate child could only derive from the mother.

NONE

Both parents*

OnIafter

1/13/41 & prior to 12124/52

18 years

Both parents*

Child hom out of wedlock was not eligible at this time.

Child not eligible derived on 12/24/52 if under the age of 16, remained an LPR and the mother was still a USc.

On/after

12/24/52 & prior to 10/5/78

18 years

Both parents*

Child unmarried

On/after

I 0/5/78 & prior to 2127/01

18 years

Both parents*-

Adopted child now included and can derive up to age 18 provided the adoption occurred prior to age 16.

Child must be residing in the U.S. at the time of the adoptive parents' ' naturalization, in the custody of the adoptive parents and pursuant to lawful admission

Child unmarried

/

OnIafter 2/27/01

One USC parentby natura1ization orbirth, 'Z'/'

<,

Child is residing in the U.S. pursuant to a lawful admission for permanent residence in the legal and physical custody of the USC parent.

Adopted child of a USC must meet the adopted child requirements of §101(bXl) INA

Any other child*** must meet definition in §101(c)(I) INA

18 years

* The definition of both parents mcludes:

a. The surviving parent should one die, OR

b. The naturalized parent having legal custody where there has been a divorce or after 1113/41 a legal separation, OR

c. The alien parent who naturalizes when the other parent is already a USC, OR

d. The mother of a child born out of wedlock, as long as the child had not been legitimated.

Except when the last condition was fulfilled on/after 1113/41 and prior to 12124/52,

**Child relieved of the remainder of the 5-year wait if the naturalized parent comes to meet definition of 'both parents'. ***Any childnot adopted must meet the definition in §10l(c)(I) INA as used in title TIl:

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, and, except as otherwise provided in sections 320, and 321 of title m, a child adopted in the United States, if such legitimation or adoption takes place before the child reaches the age of 16 years (except to the extent that the child is described in subparagraph (E)(ii) or (F)(ii) of subsection (b)( 1 », and the child is in the legal custody of the legitimating or adopting parent or parents at the time of such legitimation or adoption.

Ejftctive September 26, 2003 a child born out cfwedlock who has not been legitimated may derive citizenship automatically under INA § 320 through the naturalization of the child's mother.

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CHART 3

Children born abroad to alien parents, whose parents thereafter become naturalized U.S. citizens.can automatically derive U.S. citizenship under certain circumstances. Because derivative citizenship is acquired automatically, no application is necessary. Although. some requirements have changed over time, two requirements have remained constant: (1) adjustment of status to lawful permanent resident/admission of the child to the U.S. for lawful permanent residence, and (2) naturalization of the child's parent(s). These two conditions must be satisfied prior to the child attaining a specified age that is referred to as the "statutory age." The date upon which the last of the above conditions are satisfied [i.e., date of the last qualifying act] determines the operative historical period on Chart 3 and applicable law. Below is an overview of each of the historical periods covered by Chart 3. including examples from each period.

Period 1: Prior to May 24. 1934

Description: An alien child residing in the U.S. automatically acquired citizenship if the following conditions were fulfilled before May 24, 1934:

1. Either parent had naturalized before the child turned 21;

2. The child became a lawful permanent resident before the age of21.

Example: Juan was born in Guatemala in 1920, and was admitted for lawful permanent residence together with his Guatemalan parents in 1925. On May 1, 1933, Juan 's father naturalized.

Juan automatically became a derivative USC on Mav 1. 1933. upon the naturalization of his father.

Period 2: On or after May 24. 1934 and prior to January 13. 1941

Description: An alien child residing in the U.S. automatically acquired citizenship if the following conditions were fulfilled on or after May 24, 1934 and before January 13,1941:

1. Either parent had naturalized before the child turned 21;

WORKBOOKj Nationality Law

Generally, when computing time to determine a person's age, the courts have regarded a day as an indivisible unit or period of time or, as it might otherwise be expressed, they have taken no cognizance of fractions of days-of the hour, minute, and second of the person's birth. Moreover, in embracing this view, the courts have usually ruled that majority is attained the first moment of the day preceding the 21st anniversary date of the person's birth.

[See, u.s. v. Wright, 197 F. 297 (1912); Gibson, Coal and Coke Co. v. Alleu ' 280 F. 28 (1922); Taylorv. Ae1na L. Ins. Co., 49 F. Supp. 990 (1943); also for constructive discussion of this subject, and an extensive citation of other authorities, see 5 AL.R. 2d 1143-1154.

However. in determining whether a person was under 21, 18, or 16 years of age, as required for derivation under the applicable statute, the Service takes a. view more favorable to the applicant and the most liberal one possible: namely, that such ages are attained at 12:01 AM. on the 21st, 18th, or 16th anniversary of the applicant's birth, as applicable.

[See, Application of Sandra Smith, A- 10803637 (1967); andINTH,E MATTER OF 1,---- M---- AND C---y---C-~-- 41. &N.Dec. 617 (1952).]

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57

2. The child became a lawful permanent resident before the age of 21.

During this historical period, assuming all required acts are occurring prior to the statutory age of 21, a child with a single naturalizing Parent Required derivative citizenship after five years had elapsed from the date he became a lawful permanent resident. The child's five-year waitingperiod could extend beyond his 21 st birthday without consequence. The child's five-year waiting period could extend beyond the repeal of the law on January 13, 1941 without consequence. If the second parent did in fact later naturalize during that five-year waiting period, the mandatory waiting period was immediately terminated andcitizeaship acquired effective the date of the second plu'erit's natnralization,

During this historical period, assuming all required acts are occurring prior to the statutory age of 21, a child with two naturalizing parents acquired derivative citizenship automatically upon the date of the last act.

In addition to the term "both parents" meaning the obvious, that is both mother and father in a subsisting marriage, the term also has an expanded definition under the law. The term ''both parents" also includes a sole parent in one of the following situations:

a. The surviving parent should one die; or,

b. The parent having legal custody When there has been a divorce; Of,

c. The parent having legal custody where, after 1/13/1941, there has been a legal separation; or,

d. A naturalizing alien parent when the ether-parent was already a .' USC by birth or derivation; or

e. The mother of a child born out of wedlock, as-long as the child has not been legitimated [except, when the last act falls wit Din the 3m. historical period - then refer to the remarks section of the 3rdhistorical period on Chart 3 for guidance].

Example 1: Karl was born in Germany in 1915. His father was admittedfor lawful permanent residence in 1935 and in January 1940 his father naturalized. On July 4, 1940, Karl was admitted for lawful permanent residence but his German' mother stayed behind in Germany.

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~', Karl became a USC effective on July 4. 1945. five years from the date of his admission for lawful permanent residence because he had one. but only one. naturalized parent before turning 21.

Example 2: Inge was born in Sweden in 1930, and was admitted for lawful permanent residence in 1932. Both of Inge 's parents naturalized on May 4, 1935.

Inge became a USC effective May 4, 1935. the date upon which both of her parents naturalized.

Period 3: On or after January 13, 1941 and prior to December 24,1952

Description: An alien child residing in the U.S. automatically acquired citizenship if the following conditions were fulfilled on or after January 13, 1941 and before December 24, 1952:

1. The child became a lawful permanent resident before the age of 18;

2. Both parents naturalized before the child turned 18.

j The term "both parents" also includes a parent in one of the

following situations:

a. The surviving parent should one die; or,

b. The parent having legal custody when there has been a divorce; or,

c. The parent having legal custody where, after 111311941, there has been a legal separation; or,

d. A naturalizing alien parent when the other parent was already a USC by birth Of derivation.

During this historical period, the naturalization of the mother of a child born out of wedlock did not make it possible for her child to derive U.S. citizenship. [See, Matter ofPikkarainen, 10 1. & N. Dec. 401 (BIA 1963) and Espindola v. Barber, 152 F. Supp. 829 (N.D. Calif, 1957) With the passage of the INA of 1952 the Congress took two steps with regard to illegitimate children. Starting 12/24/1952 an out of wedlock child, who was not legitimated, was eligible to derive from it naturalizing mother. Secondly, any child born in the 3m historical period

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[1113/1941 to 12123/1952] automatically derived on 12/2411952 if on that date they were still alawful permanent resident, under the age of 16, and if the mother was still a USC.

Example: Mario was born in Italy in 1940. Together with his parents he was admittedfor lawful permanent residence in 1941. His mother died in 1948. Hts father naturalized on April 1, 1950.

Mario became a USC effoctive April 1 , 1950 with the naturalization of his surviving parent.

Period 4: On or after December 24 .. 1952 and 'Qrior to October 5,1978

Description: An unmarried alien chlld residing in the U.S. automatically acquired citizenship ifthefoll()wing conditions were fulfilled on or after December 24, 1952, and before October 5, 1978:

1. The child became a lawful permanent resident before the age of 18;

2. Both parents naturalized while the child was under 18.

The term "both parents" includes the following:

a. The surviving parent should one die; or,

b. The parent having legal custody when there has been a divorce; or,

c. The parent having legal custody where, after 1113/1941, there has been a legal separation; or,

d. A naturalizing alien parent when the other parent was already a USC by birth or derivation; or

e. The mother of a child bom out of wedlock, as long as the child has not been legitimated [except, when the last act falls within the 3rd historical period -' then refer to the remarks section of the 3rd historical period on Chart 3 for guidance].

The term unmarried is defined in INA § 101(a)(39), with reference to any individual as of any time, as "an individual who at such time is not married, whether or not previously married,"

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UPQn passage of the 1952 Act, and until 1978, the statutory ag(! was 16. In 1978 a curative Amendment was.passed [S!J!l, H.R. Rep. No. 1301, 95th Cong., 2d Sess] At that time a person was not eligible to file a petititmfor naturalization in his

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Example: Marc was born in the Ivory Coast in 1955. Together with his parents he was admitted for lawful permanent residence

in 1960. His mother divorced his father in 1965 and custody of Marc was awarded to his father. His father naturalized on January 30,1970.

Marc is a USC effective January 30,1970. the date when his father naturalized Because legal custody of Marc was awarded to his tather after his parents' divorce, Marc was able to derive citizenship through his father's subsequent naturalization.

Period 5: On or after October 5,1978 and prior to 2/27/2001

Description: An unmarried alien child residing in the U.S. automatically acquired citizenship if the following conditions were fulfilled on or after October 5, 1978 and prior to 2/27/2001:

1. The child became a lawful permanent resident before the age of 18;

2. Both parents naturalized while the child was under 18.

Beginning with this historical period, adopted children became entitled to the same benefits as biological children, provided that the child was adopted while under the age of 16. Additionally, at the time that the adoptive parent(s) naturalized, an adopted child had to be residing in the u.s. as a lawful permanent resident and be in the legal and physical custody of the USC parent(s).

The term ''both parents" includes the following:

a. The surviving parent should one die; Of,

b. The parent having legal custody when there has been a: divorce; or,

c. The parent having legal custody where, after 1113/1941, there has been a legal separation; or,

d. A naturalizing alien parent when the other parent was already a USC by birth or derivation; or

e. The mother of a child born out of wedlock, as long as the child has not been legitimated [except, when the last act falls within the 3M historical period - then refer to the remarks section of the 3rd historical period on Chart 3 for guidance].

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own behalf until reaching the age of 18. Thus, there was a 2-year period during which a child was not able to derive U.S. citizenship by reason of his parents' naturalization, but was not able to file his own petition for naturalization either. The only procedure available during that period was for the parent or parents to file aformal petition for the child's naturalization as provided in INA § 322. Congress found such a procedure cumbersome and unnecessary and jelt that young people between the ages of 16 and 18 should be allowed to derive citizenship automatically. TM age was raised to 18 and the amendment was . made retroactive to 12/24/1952. ~ Matter ofFuentea, 21 L &. N. Dec. 893 (BfA 1997) andlnReJesusEnrique Rodriguez-Tejedar, 23 L &. N. Dec. 153 (BfA 2aOI)

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Example: Rosa was born in Mexico in 1961. She was adopted in Mexico by Mexican parents in 1971. In 1972, the whole family was admitted to the United States for lawfol permanent residence. In 1977, Rosa 's mother naturalized. On November 1, 1978,

Rosa IS father naturalized.

Rosa acquired derivative U.S. citizenship on November L 1978. As ofthat date she was a 17-year-old lawful permanent resident. living· witli her adoptive parents, both of whom had naturalized. All acts occurred before the statUtory age 008.

Period 6: On or after 2/27/2001

Description: An unmarried alien child residing in the U.S. automatically acquires citizenship if the following conditions are

fulfilled on or after 2127/2001:" .

1. The child became a lawful permanent resident before the age of 18;

2. The child is residing in the legal and physical custody of at least one USC parent by naturalization or birth before its 18th birthday.

Adopted children are included in the definition of child as long as the child is adopted before age 16 (18 for the natural sibling of an adopted child who was adopted by the same parents before age 16) and all the other requirements for adoption are met. Stepchildren are not included in the absence of adoption. The changes in the law are the result of the Child Citizenship Act of2000 effective on February 27, 2001. The Child Citizenship Act of 2000 accorded derivative citizenship status to all lawful permanent resident alien children under the age of 18, who on or after February 27,2001, resided in the legal and physical custody of at least one USC parent. The term legal custody means responsibility for and authority over a child. Absent evidence to the .contrary and for purposes of the Child Citizenship Act, the Department of Homeland Security will presume that a USC parent has legal custody and authority over a child under the following circumstances:

1. A biological child living with his or her natural parents, who are married.

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Fall- 2007

Child Citizenship Act 0/2000, Pub. L. No. lO6-39S.§)01/114Stat.1682 (2000) amending § 320 ojthe INA. A child who meets these requirements is automatically a USC, and no forther action needs to be taken. However, m~ will. want evidence o/their citizenship. This can be accomplished by either applying/or a u.s. passport/rom the State Department, or Iiy applying/or a Certificate 0/ Citizenship /rom the UsCI8. 8 C.P.R. Part 320 explains in detail how to obtain evidence of citizenship for children who have automatically acquired citizenship under INA § 320, as amended by the Child Citizenship Act of2000.

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2. A biological child living with one parent when the other parent is deceased.

3. A biological child born out of wedlock who has been legitimated and currently resides with the natural parent.

In the case of an adopted child, legal custody depends on the existence of a final adoption order from the courts. In cases where the natural parents are divorced, legal custody will depend on the tenus of the divorce decree.

Example: Luis was 15 on February 27,2001. He was living in the United States as an alien lawfully admitted for permanent residence and resided in the legal and physical custody of his mother, a former Mexican national who had naturalized in the year 2000. Luis also lived with his father, a lawful permanent resident alien.

Under former law and until February 26. 2001. Luis was an alien because only his mother had naturalized. However. under the Child Citizenship Act 0(2000. Luis became a USC as of February 27. 2001 because he was a lawfUL permanent resident who had not yet attained the age 0(18. and was living in the u.s. in the legal and phYSical custody olat least one USC parent.

If a child satisfies all the requirements of § 320, he or she automatically acquires U.S. citizenship by operation oflaw either on the day of adjustment of status, on the day of admission to the United States, or on the day that the last condition for acquiring citizenship is satisfied. If a full and final adoption is completed abroad, and the child meets the requirements applicable to adopted children under the immigration law for example, in an orphan case, both parents saw the child before or during the foreign

WORKBOOK: Nationality Law

In a September 26, 2003 Memorandum for Regional Directors, District Directors. 0ff1cers-in.Charge. and Service Center Directors tIuJ Acting Associate Director for USCIS mandated the interpretation of INA §10IMW to follow in adjudicating applications for citizenship under INA §§ 320 and 322. This memorandum superceded sections of Po /icy Memoranda 75 and 75A concerning children who are eligible for benefits under the Child Citizenship Act. For all cases pending on that date, as well as in cases filed on or after that date. a child bom out of wedlock who has not been legitimated may nevertheless derive citir.enship automatically under INA § 320 through the naturalization of the child's mother or obtain citizenship unaerINA § 322 wed upon tIuJ child's USC mother.

A USCIS memorandum entitled Acquisition of Citizenship by Children of U.S. Military and Government Employees Stationed Abroad under Section 320 oftb.e Immigration and Nationality Act (INA), dated May 6, 2004, updates the interpretation of Section 320 of the Immigration and Nationality Act (INA). Children of U.S. Military or U.S. Government employees temporarily stationed abroad will be considered to be "residing in the United States" for purposes of acquisition of citizenship under section 320 of the INA.

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adoption proceeding -- the child automatically becomes a citizen on the day he or she is admitted to the United States as an immigrant. If the orphan was adopted abroad, but at least one parent did not see the child before or during the foreign adoption proceeding, the child-will become a citizen on the day the citizen pare'nt(s) completes: any procedure the State of residence may require to obtain recognition of the foreign adoption. If the orphan's adoption is completed in the U.S., the child becomes a citizen when the citizen parent(s) obtain(s) a final adoption decree from the proper State court.

The IR -3 immediate relative immigrant visa accounts for approximately seventy percent of children adopted by U.S. Citizens, and is issued for cases where adoptions ate made final overseas. Adoptedchildren admitted in the IR.-3 category on or after January 1, 2004, will automatically receive a Certificate of Citizenship within 45 days of admission into the U.S.

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Chart 4

On or after 2/27/01, both the child and the living citizen parent must regularly reside outside the u.s.

On or after 1112/02, the child must regularly reside outside the U.s. The citizen applicant rna reside in or outside the U.S.

The child must be living in the legal and physical custody of use parent. .

Both the child and the citizen parent must a ear at an interview.

The child must be living in the legal and physical custody of a person who does not obiect to the a lication.

Both the child and the use applicant must a ear at the interview.

Child

Citizen Parent

Citizen A Iicant

Adopted Child

Natural Child

One citizen parent can file the application. Parent's requirements are identical for natural or adopted child.

If the citizen parent has died during the preceding 5 years, a USC grandparent or USC legal guardian ma file a: lication. ,

N-600IN-600K N-643/N- At time of

~fiI~ed=- -+:6:=-:O:-=-O:..::/N..:::../~60:..:0-=.:K:;-;fil~ed7---i adjudication, must

Must meet Must meet definition have been physically

definition of child of adopted child in present in the United

in INA lOl(c)(l),' INA 101(b)(1), i.e., States for periods

i.e., the child must must either have an totaling 5 years, at

be legitimate or approved 1-600 or be least 2 of these years

legitimated before eligible to have an 1- must be after the

their 16th birthday. 130 (which does not parent's 14th birthday. have to be filed) approved under INA 101 (b )(1 )(E).

Benefits under this law are not

available for A citizen parent of the

stepchildren or for citizen parent must

illegitimate have met these

children. physical presence

Ir=~~~~~--~--~--~~--~

The adjudication and the taking of the oath, requirements.

unless waived because the child is unable to understand its meaning by r~QfLQL:-" mental incapacity or young age 'he?-

~J?lete<l]>ef~y~t!ie child) 18. ~~~

Must be in legal status at time of the interview and ad iudication.

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OR

Note - Only a citizen parent can file the application.

At time of death, the USC parent must have been physically present in the U.S. for periods totaling 5 years, at least 2 of these years must be after the parent's 14th birthday.

OR

A citizen parent of the citizen parent who was alive at the time of the citizen parent's death must have met these physical presence requirements prior to the death of the citizen parent.

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CHART 4

Description: Chart 4 is a visual representation of § 322 of the INA, as amended by the Child Citizenship Act of 2000. Section 322 of the INA allows a USC parent (whether by birth or naturalization) to apply for and obtain a certificate of citizenship for an alien child in his or her legal and physical custody, but only if the child regularly resides outside of the U.S. An interview and written application are required. Such. children must be under 18, unmarried and present in the U.S. pursuant to a lawful admission at the time of the interview and adjudication of the application. Once the application is approved and the child takes an oath of allegiance -unless such. oath is waived due to the age of the child-« the child becomes a USC and receives a certificate of citizenship. The whole process must be completed before the 18th birthday of the child.

There is a residency requirement for the USC parent of such a child: the USC parent must have been physically present in the United States or Outlying Possessions for at least 5 years, 2 of which were after the age of 14. If the USC parent cannot satisfy this residency requirement, then he or she must have a USC parent (Le., the child's grandparent) who can meet this residency requirement ..

If the USC parent has died during the 5 years preceding the filing of an application under INA § 322, a USC grandparent or U.S. citizen legal guardian may file an application e ' However, the residency requirement must have been satisfied at the time of the USC parent's death, whether by the deceased USC parent or by his or her USC parent (i.e., the child's grandparent).

A certificate of citizenship can be obtained for adopted children under INA § 322 provided that the child was adopted before the age of 16 (18 for the natural sibling of an adopted child who was adopted by the same parents before age 16) and all the other requirements for adoption are met. Stepchildren are not covered by INA § 322, unless they have been legally adopted. A child born out of wedlock is considered a "child" of the USC natural father for citizenship purposes under INA § 322, but only if legitimation occurred before the child's 16th birthday. Effective

WORKBOOK; Nationality Law

8 C.P.R. § 322 implements INA § 322 and explains in detail how to apply and obtain a certificate of citizenship under section 322 ofthe INA.

INA § 322 was amended by P.L. 107-273, §11030B, 116Stat. 1824 (Nov. 2, 2002) to allow for application/or naturalization in the event 0/ the citizen parent's death.

A USeIS memorandum entitled

Effect of Grandparent's Death on Naturalization under INA Section 322, dated April!7, 2003, updates the interpretation of Section 322 of the Immigration and Nationality Act (INA). Effective that date, and assuming an alien child meets all other requirements of Section 322, an alien child remains eligible after the death of the citizen parent's own citizen parent, so long as the citizen parent's own citizen parent met the physical presence requirement in Section 322(a)(2)(B) at the time of death.

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September 26,2003 a child born out of wedlock who has not been legitimated may acquire citizenship under INA § 322 through the child's USC mother.

Example 1: Ramon had been a lawfu! permanent resident of the United States for ten years when he married his high school sweetheart Maria in 1999, during a vacation to Mexico. Ramon returned to the United States but his wife Maria remained in Mexico. In March 2000, the couple had a child named Jesus, who was born in Mexico. In April 2000, Ramon became a naturalized USc. Ramon later became an executive at a multinational company and was sent to Colombia in the summer of 200 1 to establish new plants. Ramon moved his family from Mexico to Colombia. Ramon, however, wanted his child'to become a usc. Jesus, however, was not a USC because he waS born 'in Mexico when his father Ramon was not a USc, but still a lawfol . permanent resident. Furthermore, Jesus was never admitted to the United States for permanent residence because he lived in Mexico with his alien mother. In addition, Ramon did not intend for his family to go back to the United States permanently for the next five years, as he would be establishing new plants in Colombia. Consequently, Jesus could not immigrate to the U.S. as a lawful permanent resident because he did not intend to riside in the United States. Therefore, Ramon sent an application for a Certificate of Citizenship under INA § 322 to a stateside tJSCIS office, indicating a proposed interview date. USCIS replied and gave Ramon an appointment notice indicating an interview date. With this appointment notice, Ramon obtained a B2 visa for Jesus to accompany him by coming temporarily to the U.S. for an interview and the adjudication of the Certificate of Citizenship application.. In January 2(J03, Ramon and Jesus came, to the U.S. for one week, appeared at the USCfS office, and had an interview on the applicationfor citizenship. Upon approval, Jesus-was issued a Certificate of Citizenship (the oath was waived as Jesus was only 3). With this Certificate of Citizenship, Ramon obtained a U.S. passport for Jesus and they both went back to Colombia as United States citizens.

Example 2: Lydia is a USCwho has never resided in the U.S. Lydia has a USC mother who has resided in the U.S. for all of her life. Lydia works as an English teacher in the Ukraine. In March 2001, while in the Ukraine, Lydia adopted a 3 year-old Ukrainian child and continues to live in the Ukraine with her child. - Lydia

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does not intend to live in the United States for the next ten years; however, she wants her adopted child to acquire u.s. citizenship. In the summer 2003, Lydia files an application for a Certificate of Citizenship under INA § 322. Lydia comes to the United States for 2 weeks with her adopted child, who is admitted on a B2 visa. Upon completion of the interview and adjudication of the application (the oath is waived because the child is only 6), Lydia's adopted child receives a Certificate of Citizenship. Lydia and her adopted child return to the Ukraine as United States citizens.

REVIEW QUESTIONS

In each of the following situations, determine if the child's status is a USC, U.S. national, or an alien, Explain your answers.

1. A child was born abroad in 1910 to alien parents. His father naturalized in 1928. The child and his alien mother were admitted to the U.S. for lawful permanent residence in 1930 and have continued to reside here.

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2. A child was born abroad in 1920 to alien parents. His father naturalized in 1933. The child and his mother were admitted to the U.S. for lawful permanent residence in 1935 and have continued to reside here.

3. A child was born abroad in 1930 to alien parents. The family was admitted to the u.s. for lawful permanent residence in 1935 and continued to reside here. The parents were legally separated in 1942 but not divorced. The mother was granted legal custody of the child. The mother naturalized in 1944.

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4. A child was born abroad in 1900 to alien parents. While living in the U.S. as a lawful permanent resident, she married, an alien on July 6"1918 .. She has lived in the U.S. continuously since her marriage. In 1919 her father naturalized as a USC.

5. A child was born abroad to alien parents in 1940. In 1945 the entire family was admitted to the U.S. Virgin Islands as lawful perinarlent residents. In 1953 the child's father naturalized as a USC.

6. At which significant date C9:u.I<i an adopted child derive U.S. citizenship through

adoptive parents? ?' :,., iW" ~

~~:,.?~;?

,., ,--.

-il ~

8. An alien child was born in Chlle to alien parents in 1988. The father of the child, Alejandro, was admitted to the U.S. as a lawful permanent resident [employment based immigrant] in 1994. He naturalized six years later. The child and his mother came to the U.S. They were admitted as lawful permanent residents on March 25, 2001 and have lived with Alejandro ever since. What is the child's citizenship today?

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" ,

"

/' -,

9. Phong Nguyen was born in a Cambodian refugee camp along the border with Vietnam in 1984. The family was admitted to the U.S. as refugees in 1986. Phong's mother filed for naturalization six years later and became a USC after taking the oath. of allegiance. Phong's father feared he would lose claim to his ancestral land ifhe became a USC and refused to file. What is Phong's citizenship status today? Why?

(Note: Pursuant to INA §209, those who enter the US. as refugees are to be inspected and examined a year after entry, and if found admissible, they are admitted to the US. as lawful permanent residents. Their LPR date is retroactive to the date they entered as a

refugee.) .

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NATURALIZATION

Admjnistrative Naturalization Overview

Naturalization is "the act of adopting a foreigner, and clothing him with the privileges ofanative citizen." [Boyd v. Thayer, 143 U.S. 103, 110 (1892)] The Supreme Court has stated "under our Constitution, a naturalized citizen stands on equal footing with the native citizen in all respects, save that of eligibility to the Presidency." [Luria v. United States, 231 us, 9 (1913)]

Today, naturalization occurs through an administrative process through which an alien acquires u.s. citizenship after complying with extensive procedural requirements. The main difference between acquisition of citizenship at birth and naturalization is that while citizenship at birth vests automatically, naturalization must - be obtained through some form of application or petition. The statutes that deal with naturalization require that a government authority, i.e., USCIS, determine if a person is eligible for and has complied with all of the requirements for naturalization before becoming a naturalized USC.

Prior to the Immigration and Nationality Act of 1990 (IMMACT), naturalization was generally granted upon the filing of a petition in court. Both state and federal courts had jurisdiction to naturalize persons by applying federal naturalization law as written by Congress. Persons seeking naturalization under these proceedings were granted citizenship through judicial naturalization and such persons were referred to as petitioners. Today, persons seeking naturalization are referred to as applicants and are granted citizenship through an administrative naturalization process.

Currently, the authority to naturalize persons is vested directly in the Secretary of the Department of Homeland Security and delegated to the USCIS; Before March 1,2003 it was vested in the Attorney General and delegated to the INS. All naturalization provisions are found in Chapter 2 of Title ill of the INA. Unless an applicant falls within one of the special naturalization categories, the applicant will have to comply with the general requirements

for naturalization discussed below and which can be reviewed in detail in 8 C.F.R. §§ 301-319.

WORKBOOK: Nationality Law

!MMAr;T tr:Cf11s!erred jr,trisdictionto j

",naturql~e aliens from, '.. . .

;JJ.r.anchtothe Executive >4ojfa) ~ftheimmigr~ti(mACtof1990,

Act of Nov. 29, 1990, Pub. L. 101-649, 104 Stat. 4978, effective October 1,1991.. Although the alien may still elect to have the oath administered by a court, in such a situation the court is merely administering the oath, and has no jurisdiction to grant or deny naturalization.

On May 30, 2007 the fee for filing for naturalization increased to $595.00.

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Certain groups of people are barred from naturalizing. Naturalization bars may be based upon such factors as political ideology, military activities and legal incompetence. Persons convicted of an aggravated felony are permanently barred from naturalization because they can never establish good moral character, which is one of the basic prerequisites for naturalization.

A type of automatic naturalization is collective naturalization in which certain categories of persons have been made U.S. citizens without any action on their part. Collective naturalization occurred most frequently when the United States . added new States or-territories and Congress enacted laws granting citizenship to the inhabitants. The 14th Amendment had the effect of giving citizenship retroactively to black persons who had been born in the United States. Various groups of American Indians, who originally were considered not to have been born subject to the jurisdiction of the United States and not to have acquired U.S. citizenship at birth, were granted citizenship by Congressional legislation, culminating in the Act of June 2, 1924 (43 Stat. 253), which conferred citizenship on all U.S. born Indians who were not already citizens.

Age: applicants must be at least 18 years old.

a. An applicant must have been lawfully admitted to the Ll.S, for permanent residence for 5 years.

b. Lawfully admitted for permanent residence means having been legally accorded the privilege of residing permanently in the U.S. as an immigrant in accordance with the immigration laws.

An applicant is eligible to file if, immediately preceding the filing of the Application for Naturalization (N-400), he or she:

WORKBOOK: NationaUty Law

USCIS announced on 9/27/2007 the 100 questions and answers that comprise the civics component of the new naturalization test. The new test begins in October 2008.

The revised naturalization test will help strengthen assimilation efforts by emphasizing fundamental concepts of American democracy, basic U.S. history, and the rights and responsibilities of citizenship. It will also promote patriotism among prospective citizens. The new question and answers, the reading and writing vocabulary lists, a side-by-side comparison'of the current and new test, answers to frequently asked questions and other information about the new test is posted online at: http://www.uscis.gov/neWtest.

A USCIS memorandum entitled hnplementationofthe Re-branded N-550 CertificateofNaruralization on October 1, 2004, dated September 17, 2004, stated that the new edition Form N-550 Certificates of Naturalization, bearing L name of the Department of Homeland Security (DHS), would be issued to all persons being naturalized on or after October 1, 2004. All unused legacy INSIDOJ Form N-550 certificates had to be disposed of and accounted for. When presented a

, N~550 issued.onor after the applicable date, ... keeptbis in mind if you suspect possible fraud.

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72

.~'. Has resided continuously as a lawful permanent resident in
a.
the U.S. for at least 5 years prior to filing with no single
absence from the United States of more than one year;
b. Has been physically present in the U.S. 30 months out of
the previous five years. Absences of more than six months
but less than one year shall disrupt the applicant's
continuity of residence unless the applicant can establish
that he or she did not abandon his or her residence during
such period;
c. Has resided within a state or the USCIS district having
jurisdiction over the applicant's residence for at least
three months.
Good Moral Character
a. Generally, an applicant must show that he or she has been a
person of good moral character for the statutory period for
five years prior to filing for naturalization, and continues
to be a person of good moral character. This includes the
period between the examination and the oath of allegiance.
\
! b. The uscrs is not limited to the statutory period in
determining whether an applicant has established good
moral character.
c. An applicant is permanently barred from naturalization if
he or she has ever been convicted. of murder.
d. An applicant is also permanently barred. from naturalization
ifhe or she has been convicted. of an aggravated felony as
defined in section 101 (a)(43) of the Act on or after
November 29, 1990.
e. A person also cannot be found to be a person of good
moral character if during the five years preceding the
submission of the application he or she has engaged in
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An applicant must disclose all relevant. facts to the uscrs, including his or her entire criminal history, regardless of whether the criminal history disqualifies the applicant under the enumerated provisions.

® Attachment to the Constitution

a. An applicant for naturalization must establish that he or she has been and continues to be attached to the. principles of the Constitution of the United States and favorably disposed toward the good order and happiness of the

U.S.

b. Attachment implies a depth of conviction that would lead to active support of the Constitution.

c. Demonstrated by an acceptance of the democratic, representational process established by the Constitution, a willingness to obey the laws which may result from that process, and an understanding of the means for change which are prescribed by the Constitution.

'j) Language

Applicants for naturalization must be able to read, write, speak, and understand words in ordinary usage in the English language. Applicants exempt from this requirement are those who on the date of filing:

a. Have been residing in the U.S. subsequent to a

lawful admission for p~rmaJ;l;entresi~ence for periods totaling 15 years or more and are over 55 years of age;

b. Have been "residing in the U.s. subsequent to a

lawful admission for permanent residence for periods totaling 20 years or more and are over 50 years of age; or

c. Have a medically determinable physical or mental . impairment, where the impairment has lasted or will last 12 months, and it affects the applicant's ability to learn English.

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;-7," Knowledge of United States Government and History .11

a. An applicant for naturalization must demonstrate a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the U.S.

b. Applicants exempt from this requirement are those who, on " the date of filing, have a medically determinable physical

or mental impairment, where the impairment has lasted

or will last 12 months, and the impairment affects the applicant's ability to learn U,S. History and Government

c. Applicants who have been residing in the U.S. subsequent to a lawful admission for permanent residence for at least 20 years and are over the age of 6S will be afforded special consideration in satisfying this requirement

,;fs:·; Oath of Allegiance

\

I

To become a citizen, one must take the oath of allegiance. By doing so, an applicant swears to:

a. Support the Constitution and obey the laws of the U.S.;

b. Renounce any foreign allegiance and/or foreign title; and

c. Bear arms for the Armed Forces of the U.S. or perform services for the government of the U.S. when required. [in certain instances, where the applicant establishes that he or she is opposed to any type of service in armed forces based on religious teaching or belief, useIS will permit these applicants to take a modified oath.]

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\

)-

"

REVIEW QUESTIONS

Provide the appropriate response to each of the following questions.

1. The Immigration Act of 1990 made significant changes to the various provisions

of the INA One of those changes dealt with jurisdiction to naturalize. To whom did it shift jurisdiction to naturalize eligible applicants for naturalization?

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2. How old does an applicant for naturalization have to be in order to file an

application in his own behalf?

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3.

When are applicants for naturalization exempt from the literacy requirements? 55: J / s-

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4. An applicant for naturalization must show good moral character for how long

immediately preceding the filing of the application with the USerS?

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~ What are the general requirements for naturalization?

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EXCEPTIONS TO THE GENERAL REQUIREMENTS FOR NATURALIZATION

Spouse of a USC Residing in the U.S. - INA § 319(a)

1. Lawfully Admitted for Permanent Residence;

2. Three (3) years residence in the U.S. immediately preceding the filing of the N -400, Application for Naturalization;

3. One and one-half (1~) years physical presence in the U.S.;

4. Three (3) months living in the state or uscrs district residence;

5. Three (3) years residence with USC spouse (as LPR) immediately preceding the filing of the N -400;

6. The applicant has been married to and living in a valid marital union with the same USC spouse for all three years;

7. The U.S. spouse has been a citizen for all three years and meets all physical presence and residence requirements; and

8. Must meet all other naturalization requirements.

SRouse of USC Stationed or Employed Abroad - INA § 319(b)

1. May file N -400 prior to LPR status;

2. Must be in the U.S. as LPR at the time of interview and examination for naturalization;

3. No specific period of residence or physical presence in the u.s. prior to naturalization is required;

4. USC spouse must be regularly stationed abroad with one of the following:

)- U.S. Government (includes u.s. Armed Forces); )- American research institute recognized by the Attorney General;

)- An American firm engaged in the development of foreign trade and commerce of the U.S.;

)- Certain public international organizations involving the U.S.; or

)- Recognized U.S. religious organizations.

5. Applicant must be in the U.S. at the time of naturalization.

6. Applicant must declare the intention of residing permanently in the U.s. immediately upon the termination of USC spouse's foreign employment.

7. Must meet all other general requirements.

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Naturalization through service in the U.S. Armed Forces during peacetime - INA § 328

1. Service must be in one of the following branches, either on

active duty or active reserve:

a. U.S.Anny

b. u.s. Navy

c. U.S. Marines

d. U.S. Air Force

e. U.S. Coast Guard

f. National Guard when activated for federal service

2. Applicant must be lawfully admitted for permanent residence at time of filing application;

3. No specific residence or physical presence requirement in the U.S., if:

a. Applicant has; three years or more of continuous

service; ANP

h. Applicant is still serving in the U.S. Armed Forces;

c. OR

d. Files within six months of an honorable discharge;

e. Applicant submits the N-400 Military Naturalization Packet (includes N-400/N-426/G- 325B) and files with any USCIS office.

4. Applicant must have served honorably or separated under honorable conditions and must provide a certified statement from the proper executive department attesting to same;

5. Applicant must establishgood moral character (GMC) if service was discontinuous or not honorable;

6. All other general requirements must be met.

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Note: Applicants who file for naturalization more than six months after separation of three years of service in the U. S. military will have to comply with the full residency and physical presence requirements after admission to lawfol permanent residence but may count any periods of honorable service as residence and physical presence in the U.S. during the previous five year period.

users has naturalized more than 33,75 members of the U.s. Armed Forces since the beginning of the War on Terror.

In October 2004, uscrs hosted the first overseas military naturalization ceremony since the Korean War, During this time and since, users has naturalized more than 4,150 Soldiers, Sailors, Airmen and Marines during ceremonies in Afghanistan, Djibouti, Germany, Greece, Iceland, Iraq, Italy, Japan.Kenya, Kosovo, Kuwaft, South Korea, Spain, the United Kingdom andin the Pacific

aboard the USS Kitty Hawk.

uscrs has granted posthumous citizenship to 102 members of the U.S. Armed Forces stemming from the War on Terror,

An individual who obtains U.S. citizenship through his or her military service and.separates from the lniIiiary under "dther than honorable conditions" before coDJ.Pleting five years of honorable serviee may have his or her citizenship revoked.

useIS Fact Sheet August 1,2007

ICE ACADEMY . .. .... ' .. '.'

Fall- 2007

78

i /

Naturalization through active-duty service in the Armed Forces during designated periods of military hostiHtfes - INA § 329

Must have served honorably while on active duty during a period which the President, by Executive Order, designated as a period of military hostility;

• 'The designated periods are:

WWI

April 6, 1917 To

November 11, 1918

WWII

September 1,1939 To

December 31, 1946

Korea

June 25, 1950 To

July I, 1955

Vietnam February 28, 1961 To

October 15, 1978

Operation Desert Shield !Desert Storm August2,1990

To

April 11, 1991

Executive Order 13269 War Against Terrorism September 11,2001 To

To be detennined

Any other period, which the President, by Executive Order, has designated as a period in which, the Armed Forces of the U.S. are or were engaged in military operations involving armed conflict with hostile foreign forces.

Note: the Grenada invasion (1983) is not valid for this purpose.

Service must be in one of the following branches:

U.S. Army U.S. Navy U.S. Marines U.S. Air Force

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u.s. Coast Guard

National Guard when activated for federal service

Service must have 'been under honorable conditions in active duty status:

Verified by relevant executive department Not honorable if the alien:

.;' was separated from the service on account of alienage;

.;' was a conscientious objector who performed no military, air, or naval duty whatsoever; or .;' refused to wear the uniform.

Permanent Resident Status

Lawfully admitted for permanent residence at any time after enlistment or induction, or

If at the time of enlistment, re-enlistment, extension of enlistment, or induction, the applicant was in:

the U.S.,

Midway Island (prior to 8/21/59) Panama Canal Zone,

American Samoa,

Swains Island, or

the ports, harbors, bays enclosed sea areas, or territorial waters of these land areas

the applicant was not required to have been lawfully admitted for permanent residence.

Note: for purposes of this section, the Philippine Islands are not and never have been included.

Must meet all other general requirements but is exempted

from: .

Age requirement,

Physical presence or residence requirement, and Pending or final removal order.

Applicant files using the N-400 Military Naturalization Packet (includes N-426/G-325B) and files with any USCIS office regardless of place of residence.

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r:

;

)

./

Revocation

Citizenship may be revoked if separated under other than honorable conditions

All other bases for revocation apply as well

REVIEW QUESTIONS TO ASSIST IN EXAM PREPARATION

Find and record appropriate responses for the following questions.

1. The conditions for the acquisition of citizenship at birth abroad are prescribed by:

a. The Constitution as originally enacted.

b. The 14th Amendment to the Constitution.

c. Statutes enacted by Congress.

d. Court decisions.

2. Which child was NOT bom subject to the jurisdiction of the U.S.?

a. Born to an alien mother who had just entered the U.S. without inspection for the sole purpose of having her child born in the U.S.

b. Born in Washington, D.C. to alien parents who were diplomatic officials, . accredited to the U.S. and listed on the State Department Blue List.

c. Born in New York to alien parents. His father was a professor at NYU.

d. Born on Guam in 1949 to Japanese parents. .

.

3. A child born abroad and out of wedlock to a USC mother prior to 5/24/34 could

acquire U.S. citizenship if certain conditions outlined in the 1940 Act were met.

Which of the following is correct? .

a. If the child was born in 1930 he acquired U.S. citizenship as long as his alien father had not legitimated him prior to 1/13/41.

b. If he was born in 1932, he was born a USC only if the mother had previously resided in the U.S. or outlying possessions for 10 years.

c. Ifhe was bom on or after December 24, 1933, he was born an alien, since he only had one USC parent.

d. He was never legitimated

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4. INA § 101 (a)(3)INA defines the term alien as:

5. The term ''National of the United States" as defined in INA §101(a)(22) means:

6. The outlying possessions of the United States as currently found in INA §lOl(a)(29) are:

7. The definition of "residence" has changed through the years as Congress enacted new laws in 1940 and 1952. The 1952 INA which went into effect 12/24152 now defines residence [found in INA §101(a)(33)] as:

8. The definition of the United States, in a geographical sense has changed over the years.

Under the current statute [found in INA §101(a)(38)] the term UnitedStates means:

9. Pursuant to Public Law,persons bom in the Commonwealth of the Northern Mariana Islands on or after what date after U.S. citizens?

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In each of the following situations, determine if the status of the child is a USC, U.S. National or an alien. Explain your answers.

10. Richard Allen was born on January 6, 1922 in Los Angeles, CA where he lived until age 6, when he went to Saudi Arabia with his parents. The family lived in Saudi Arabia where Richard's father worked for a private U.S. business firm for the next 10 years. At age 16, Richard returned to the U.S. and remained there until his 22nd birthday, when he was inducted into the U.S. Armed Forces and sent with his company to France.

In France, he married an English woman and they had a son, born on March 17, 1945. Richard was honorably discharged from the U.S. Army in 1946. His wife and child entered the u.s. that same year and the child remained here permanently. What is the child's citizenship status today?

11. Richard Bower was born and raised in Columbus, OR. At the age of 24 he left for Santiago, Chile to do research with a private firm. While there, Richard married a Chilean who gave birth to a daughter, Susana, on September 10, 1955. All three have , lived in Chile since that date. What is Susana's citizenship status today?

12. Edward Sims was born in wedlock in Sydney, Australia on January 15,1975 to two USC parents, both of whom had resided in the U.S. until they were 25 years old. What is Edward's citizenship today?

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13. A child was born in New Jersey on July 12, 1922; She lived in Philadelphia until August 10, 1939 when her parents moved to South Africa. She has never returned to the United States. In 1948, she married a native and citizen of South Africa. Consider her children today.

a. Her son was born in Capetown, South Africa on September 22, 1949, and studied at New York University from 1967 to 1973 when he returned permanently to

Capetown. '

b. Her daughter was born onApri17, 1959 and has never been to the U. S.

14. Ed was born in England to an Unwed alien mother on September 1, 1935. His father was a USC, born in the state of New York. After Ed's birth his father returned to his home in Tarrytown, NY. Over the next 24 years, Ed's father provided for him financially, but he was never legitimated.

In 1959, when Ed married a British subject, his father's surprise wedding present was a New York court order oflegitimation. Ed and his wife moved from London to New York in 1960, and resided at his father's home in Tarrytown. In 1971, after his father died, Ed 'and his wife moved to Canada. The following year, the couple had their first child. What is the citizenship status of Ed's child today?

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15. Eugene wasborn in wedlock in Bogota, Colombia on February 21, 1950 to two USC parents. His father was born in California and went to Colombia as a mining engineer in 1946 at the age of26. His mother was born in Colombia and had acquired U.S. citizenship at birth from her father. Eugene's mother has never been to the United States.

Eugene attended classes at Temple University from 1968 to 1970 and remained in the U.S. after graduation. In July 1975 Eugene returned to Colombia and married Monica, a native and citizen of Colombia,' The couple has continued to reside in Colombia and their first child was born last Tuesday. What is the citizenship status of Eugene's child?

16. Leatula was born in American Samoa in 1953 to a mother who was born in 1935 in Western Samoa to native Samoan parents and a father who was a native-born Tahitian. What was Leatula's citizenship status at birth?

17. Betsy was born in wedlock in England on January 4, 1945 to a USC father and a Welsh mother. Betsy's father was born in St. Louis, MO on January 3,1924 and had lived there all his life until sent abroad with his military unit in 1942. He served honorably and was shipped back to the U.S. in early 1946. Betsy and her mother accompanied him and were admitted for permanent residence under the War Brides Act. In 1948 Betsy's parents divorced and she and her mother returned to England where they have lived ever since ..

Edward was born in wedlock, in England on December 4, 1943 to a USC father and a Polish mother. At the time of his birth, Edward's father had a total of27 years residence in the U.S. Edward has onIybeen in the U.S. on one occasion, for two months in 1961, to visit his grandparents in Peoria, IL. Edward met and married Betsy [from paragraph above] in London in.1966. A daughter was born to them on October 15, 1968. This family oftbree is thinking of coming to the U.S. to live.

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Betsy still has her Permanent Resident Alien Identification Card that she never surrendered. What is her status today?

Edward has an old expired U.S. passport that was issued in 1960. What is his status today?

The daughter has a British passport and a completed nonimmigrant visa application. What is her status today?

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