What is Citizenship Through Acquisition and Who is Qualified?
Barring few exceptions, there are three distinct manners in which one can become a US Citizen. If the U.S. is your birthplace, including certain outlying U.S. territories such as Puerto Rico and the Virgin Islands, you are considered a natural U.S. Citizen. If you were born in a foreign country or territory, you could become a U.S. Citizen by undergoing the immigration and U.S. naturalization process. However, if you were born overseas you could "acquire" or gain U.S. Citizenship at the instance of your birth by virtue of your parentage to U.S. Citizen parent(s) or grandparent(s). Gaining or acquiring your citizenship in this manner means that you are a naturally born citizen of the United States as a matter of law.
Unbeknownst to them, certain individuals born overseas or in a different country may have gained or acquired their citizenship automatically at birth. The laws regulating citizenship by acquisition have been revised at least 7 times since 1934. These revisions created several criteria and parental requirements that must be satisfied which will vary depending on the period in time the child on whose behalf citizenship by acquisition is sought was born. These criteria include whether the parent(s) or grandparent(s) were citizens of the U.S., the date the child was born, the length in time, and age that such parent(s) or grandparent(s) resided in the U.S. and whether such child was born out of wedlock.
The following table illustrates the various scenarios which might occur and the disposition of the child's citizenship at the time of its birth aboard.
Married Parents who are both U.S. Citizens
If a child is born abroad to two U.S. Citizen parents who were married at the time of the child's birth, the child acquires U.S. citizenship at birth but only if one of the parents had a residence in the U.S. prior to the child's birth.
Married Parents, one is Citizen and the other is a Foreign National
If, at the time of the child's birth, both parents were married but one parent was a U.S. Citizen and the other is not, then the child may acquire citizenship at its birth provided that the U.S. Citizen parent resided in the U.S. for a specific period of time provided by law as following:
Parents are unmarried, but father is U.S. Citizen, Mother is a Foreign National
I. Child is less than eighteen (18) years of age on November 14, 1986 (New Section 309(a)):
If, at the time of the Child's birth, the parents were not married but the father was a U.S. Citizen, and:
1. The father establishes a blood relationship between himself and the child unequivocally;
2. Prior to the child's birth, the father had resided in the U.S. for at least five (5) years, two (2) of which were after reaching the age of fourteen (14); and
3. Unless the father is deceased, the father had agreed in writing to provide sustenance to the child.
4. If the child was less than fourteen (14) years of age, the legitimacy of the father-child relationship had been established by Court, in accordance with the laws of the jurisdiction where the child resides or if the father had admitted his paternity under oath and in writing.
II. Child is more than fifteen (15) years of age on November 14, 1986 ("Old" Section 309(a))
If, at the time of the child's birth, the parents were not married but the father was a U.S. Citizen, and if the child was at least eighteen (18) on November 14, 1986 or the legitimacy of his relationship to his U.S. Citizen father was established prior to that date, the child may acquire Citizenship by acquisition provided that the father had resided in the U.S. for at least ten (10) years, five (5) of which were after the age of fourteen (14) and provided that the legitimacy of the relationship had been established prior to the child reaching the age of twenty one (21).
III. Child is more than fifteen (15) years and less than eighteen (18) years of age on November 14, 1986 (Either "Old" or "New" Section 309(a))
If, at the time of the child's birth, the parents were not married but the father was a U.S. Citizen, and if the child was between fifteen (15) or eighteen (18) years of age on November 14, 1986, then the child can acquire citizenship by acquisition through either old or new provisions of section 309(a) explained above.
Parents are unmarried, Mother is U.S. Citizen, father is Foreign National
A child born to a U.S. Citizen mother outside the U.S. or its territories may acquire citizenship by acquisition if, at the time of the child's birth, the mother was a U.S. Citizen and she had resided in the U.S. for at least one year prior to the child's birth.
The Child Status Protection Act
It must be noted that the Child Citizenship Act of 2000 (CCA) has made acquiring citizenship a bit less complicated for children who are lawful permanent residents. Under the CCA, as of February 27, 2001, a child born abroad can acquire citizenship if the following conditions are met: The child is under 18, has at least one U.S. citizen parent either by birth or naturalization, is currently residing as a lawful permanent resident in the U.S., and is in the legal and physical custody of the U.S. citizen parent. Unfortunately, stepchildren and children born out of wedlock, who were not legitimated before their 16th birthday, cannot derive citizenship through their parents.
The present law states that a non-lawful resident child currently living outside the U.S, who was born abroad to one U.S. citizen parent and one alien parent on or after November 14, 1986, still has the ability to obtain citizenship. However, in order for the child to acquire citizenship in such instances, the U.S. citizen parent must apply for naturalization on behalf of their child. In order to complete processing and allow the child to take the oath of allegiance, the child must at least temporarily be physically and legally present in the U.S. The child must also be under the age of 18, and if the child was adopted, the adoption must have taken place before the child reached the age of 16. Additionally, the U.S. citizen parent must have met the presence/residence requirement.
For citizenship by acquisition, it is important to remember that different requirements exist for the U.S. citizen parent, depending on when the child was born. Also be aware that someone who is born abroad carries a presumption that they are an alien. Sufficient evidence is needed to rebut that presumption in order to be granted citizenship. Having the guidance and assistance of skilled immigration attorneys, such as those available at The Law Firm of Shihab & Associates Co., LPA, is crucial to navigate through the complex and ever-changing law of citizenship by acquisition.
How to Contact Us:
If you have questions about an immigration matter, and/or you need help in the process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA, at the office nearest you to speak with an attorney. We handle various matters including family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, Green Cards and Permanent Residence, and many more.