US CITIZENSHIP
A U.S. citizen whose child is born abroad may convey U.S. citizenship to the child. In some cases, derivative citizenship may be transmitted from a grandparent to a parent to a child.
The laws regulating acquisition of U.S. citizenship at birth are among the most complex of the immigration laws. Use the following 4-step analysis to determine if you "acquired" U.S. citizenship at birth or if you "derived" citizenship through your parents while you were a minor:
STEP # 1 - Determine the Applicable Law
Since changes in the laws governing acquisition of citizenship were seldom retroactive, the applicable law is usually the one passed immediately prior to the child's date of birth. For example, if the child was born in 1949, the 1940 law would apply.
STEP # 2 - Determine Whether One or Both of the Child's Parents were Citizens of the U.S. at the Time of the Child's Birth
If both of the child's parents were U.S. citizens at the time of his birth, chances are good that the child acquired U.S. citizenship at birth. However, if only one parent was a U.S. citizen, the analysis must be completed in its entirety.
STEP # 3 - If the Child had Only One Citizen Parent, Determine Whether the Parent had Sufficient Residence or Physical Presence in the U.S. Prior to the Child's Birth to Convey U.S. Citizenship on the Child
Prior to the 1934 Act, only citizen fathers who had resided in the U.S. prior to the child's birth could convey citizenship. The 1934 Act provided that a citizen father or mother could convey citizenship to a child born abroad if he or she had resided in the U.S. prior to the birth of the child.
STEP # 4 - Determine Whether the Child Lost His U.S. Citizenship through Failure to Meet the Retention Requirements of the Law
The 1940 Act added a retention requirement to the law of acquisition. This meant that a child born abroad who acquired U.S. citizenship at birth was required to reside, or be physically present, in the United States for a certain number of years before attaining a specified age. Otherwise, the child would lose his U.S. citizenship. The retention requirement only applied where the child had only one citizen parent. The 1978 Act eliminated the retention requirement. However, the Act did not restore the citizenship rights of persons who had already lost their citizenship by a failure to meet the retention requirement.
(The retention requirement was eliminated prospectively by the 1978 law, and retroactively by the 1994 law.) Now, under the terms of a new law, a few thousand lucky persons will be able to obtain U.S. citizenship immediately.
On October 25, 1994, President Clinton signed into law the Immigration and Nationality Technical Corrections Act of 1994 (INTCA, Public Law No. 103-416). The law which was passed with little fanfare contains the most significant changes to the laws concerning the acquisition of citizenship in sixty years.
The immigration law has always allowed certain children born abroad to acquire citizenship at birth if one or both of the parents were U.S. citizens at the time of the child's birth. The laws governing the acquisition of citizenship at birth have been modified on numerous occasions.
Before May 24, 1934, only citizen fathers of child born abroad could transmit citizenship to their offspring. After that date, the law was amended to allow citizen mothers and fathers to transmit U.S. citizenship to their children. A child born abroad on May 23, 1934 whose mother was a U.S. citizen and whose father was an alien, did not become a U.S. citizen at birth like his counterpart who was lucky enough to be born a day later.
Also, between 1934 and 1978, the law imposed a "retention" requirement upon children born abroad who had one parent who was a U.S. citizen and one parent who was an alien. If a child failed to meet this retention requirement, he automatically lost his U.S. citizenship.
A person born abroad before May 24, 1934 of a citizen mother and an alien father sued the State Department stating that the pre-1934 law denying him citizenship deprived him of the equal protection of the law.
In 1978, after the Court's decision, Congress amended the law to eliminate the retention requirement, but only for persons who had not already lost their citizenship due to their failure to meet the retention requirement.
Section 101 of INTCA provides that children born abroad prior to May 24, 1934 of citizen mothers (who had resided in the U.S. prior to the child's birth) and alien fathers are citizens of the U.S. Furthermore, the law treats them as citizens as of the date of their birth. Whether they ever apply for U.S. passports or Certificates of Citizenships is immaterial.
Thousands of persons born abroad and their spouses and children are expected to benefit from these amendments.
During your interview, a USCIS officer will test your ability to read, write, and speak English and your knowledge of civics. Your ability to speak English is determined during your interview on your naturalization application. You will be given two opportunities to take the English and civics tests and to answer all questions relating to your naturalization application in English. If you fail any of the tests at your initial interview, you will be retested on the portion of the test that you failed (English or civics) between 60 and 90 days from the date of your initial interview.
See the “Study Materials for the Naturalization Test” link to the right.
For information on exceptions or modifications to the English and civics requirements for naturalization, see the “Exceptions & Accommodations” link under “Citizenship by Naturalization” to the left.
Further information about the immigration process for Citizenship Acquisition can be discussed with professional insight and openness - with FREE initial Consultation by contacting Attorney Tracy to schedule an appointment.
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