You May Be A U.S. Citizen Without Knowing It

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Most people think that a person who is born outside of the United States can only become a U.S. citizen through naturalization or by deriving citizenship through a parent’s naturalization. For many people, naturalization is a process fraught with years of waiting and much expense.

However, a person born outside the U.S. can become a citizen through the acquisition of citizenship from one or both parents who are citizens. Sometimes, the parents themselves do not even know that they were U.S. citizens.

In order to transmit citizenship to a child, the citizen parent generally must have resided in the United States for a certain period before the child’s birth. The law in effect on the date of the child’s birth will apply and dictate what requirements must be met.

In a recent case, the court held that an American father could not transmit his citizenship to his son because the law in effect at the time of his son’s birth in 1931 required his father to have resided in the U.S. The Nationality Act of 1940 liberalized the residency requirement by allowing a citizen parent to have resided in the U.S. or one of its outlying possessions such as the Philippines, but the law could be not be applied retroactively.

Depending on the applicable statute, residence in a possession of the U.S. could be considered residence in the United States.  Because of this, knowing the ways by which citizenship could be acquired is especially useful for Filipinos because the Philippines was an “outlying possession” of the United States from 1898 to 1946.

If a person is born to parents who are both U.S. citizens, the child’s acquisition of citizenship depends on whether at least one parent resided in the United States prior to the child’s birth. If the child was born on or after January 13, 1941, residence in a U.S. possession is counted as U.S. residence. The child is not subject to the citizenship retention requirement, meaning that he/she need not reside in the U.S. for certain time periods in order to become a U.S. citizen.

If only one parent is a U.S. citizen, the child could be a citizen depending on the date of birth, whether the parent has prior U.S. residence, and whether the child meets the retention requirements.

A child   may be a citizen if born abroad before May 24, 1934 to a U.S. citizen father or mother with prior U.S. residence. The child has no citizenship retention requirement.

If the child was born on or after May 24, 1934 but before January 13, 1941, the child’s parent must have resided in the U.S. and the child must generally have 2 years of continuous physical presence in the U.S. between the ages of 14 and 28.

If born on or after January 13, 1941 but before December 24, 1952, the citizen parent must have at least 10 years of prior U.S. residence, 5 years of which were after age 16. The child must also have two years of continuous physical presence in the U.S. between the ages of 14 and 28.

If the child was born on or after December 24, 1952 but before November 14, 1986, the citizen parent must have been physically present in the U.S. for at least 10 years before the child was born, 5 years of which were after age 14.

The prior residence requirement for the citizen parent is only 5 years, 2 of which after age 14, if the child was born on or after November 14, 1986.

In some cases, people did not realize that they are U.S. citizens until they were placed in removal proceedings and they had the good sense of not conceding alienage. If you believe that there is U.S. citizen among your direct-line ancestors, it pays to carefully examine your background because you may have a claim for U.S. citizenship after all.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281).