PART

I

Getting Started: U.S. Immigration Eligibility and Procedures

CHAPTER

1

Where to Begin on Your Path Toward Immigration

A.Roadmap to U.S. Immigration

B.The Typical Application Process

C.Immigration Eligibility Self-Quiz

If you’ve already tried to research how to immigrate to the United States, you might have come away more confused than enlightened. We’ve heard immigrants ask frustrated questions like, Are they trying to punish me for doing things legally? or Do they want to let me in or keep me out?

The trouble is, the U.S. immigration system is a little like a mythical creature with two heads. One head might smile and grant people the right to live or work in the United States, temporarily or permanently. The U.S. tends to be the most welcoming toward people who:

will pump money into the U.S. economy (such as tourists, students, and investors), or

can fill gaps in the U.S. workforce (mostly skilled workers).

This creature’s other head wears a frown. It is afraid that the U.S. will be overrun by huge numbers of immigrants, and depending on the political climate can reflect racist and nativist sentiments. It tends to try especially hard to keep out anyone who:

doesn’t fit the narrow eligibility categories set forth in U.S. immigration law

has a criminal record

is a threat to U.S. ideology or national security

has spent a long time in the U.S. illegally or committed other immigration violations

is attempting fraud in order to immigrate, or

will not earn enough money to stay off government assistance.

Not surprisingly, these two heads don’t always work together very well.

You could find that, even when you know you have a right to visit, live, or work in the U.S. and you’re trying your best to fill out the applications and complete your case properly, you feel as if you’re being treated like a criminal. The frowning head doesn’t care. Sadly, it views you as just another number and as no great loss if your application fails—or is, literally, lost in the files of thousands of other applications.

CAUTION

Have you heard people say that a U.S. citizen could simply invite a friend from overseas to live here? Those days are gone. Now, every immigrant has to find a legal category to fit within, deal with demanding application forms and procedures, and pass security and other checks.

CAUTION

Almost everyone should consult an experienced immigration attorney before submitting an application. Unless your case presents no complications whatsoever, it’s best to have an attorney confirm that you haven’t overlooked anything. However, by preparing yourself with the information in this book, you can save money and make sure you’re using a good attorney for the right services.

EXAMPLE: An American woman was engaged to a man from Mexico and figured, since she herself had been to law school, that she didn’t need an attorney’s help. She read that a foreign-born person who was in the U.S. on a tourist visa could get married and then apply for a green card within the United States. Unfortunately, what she didn’t realize was that this possibility works only for people who decide to get married after entering the United States. Applying for a tourist visa with the idea of coming to the U.S. to get married and get a green card amounts to visa fraud and can ruin a person’s chances of immigrating. Are you already confused? The U.S. immigration system doesn’t always make a lot of sense. This is why an attorney’s help is often needed—to get you through legal hoops that you’d never imagined existed.

A.Roadmap to U.S. Immigration

Because this book covers a lot of territory, it helps to have a road map—particularly so you’ll know which subjects or chapters you can skip entirely.

Take a look at the imaginary map below, then read the following subsections to further orient yourself.

As you can see, the first stop along the way is the Inadmissibility Gate. This gate represents a legal problem that can stop you on your path to a visa or green card before you’ve even started. If, for example, you have committed certain crimes, been infected with certain contagious diseases, appear likely to need welfare or government assistance, have violated U.S. immigration laws, or match another description on the U.S. government’s list of concerns, you are considered inadmissible. That means you won’t be allowed any type of U.S. visa or green card, except under special circumstances or with legal forgiveness called a waiver. This gate gets closed on a lot of people who lived in the U.S. illegally for more than six months. Even if you think you haven’t done anything wrong, please read Chapter 3 for more on the problem of inadmissibility.

If you get past the Inadmissibility Gate, the next stop along your theoretical journey is the Eligibility Bridge. This is where you must answer the question, What type of visa or green card are you eligible for? Answering this will involve some research on your part. You might already know the answer—for example, if you’ve just married a U.S. citizen, it’s pretty obvious that you want to apply for a green card on this basis and should read the appropriate chapter of this book (Chapter 7). Or, if your main goal is to attend college in the U.S., then you probably know that you need a student visa, and can proceed straight to the chapter covering that topic (Chapter 22).

Roadmap to U.S. Immigration

If you don’t already know you’re eligible for a certain type of visa or green card, however, start by reading Section B, below, which reviews the possibilities for spending time in the U.S. and directs you to the appropriate chapters for follow-up.

You’ll see that this book covers more than just permanent green cards—we know that not everyone will either want, or be eligible to receive, the right to live in the U.S. their whole life. There are many useful ways to stay in the U.S. temporarily, for example on a student or employment-based visa. And even if you don’t fit into one of the usual categories, there might be an emergency or other special category that helps you.

Not many people will travel down the Citizen Parents or Grandparents Alternate Access Road. It’s for the lucky few who, after doing a little research, realize that they are already U.S. citizens because their parents or grandparents had U.S. citizenship. Okay, we admit that this is rare. Most people would not be picking up a book on immigration if they were already U.S. citizens. Nevertheless, a few people are surprised to find that, because their parents were either born in the U.S. or became U.S. citizens later (possibly because their own parents were U.S. citizens and passed it to them automatically), they are already U.S. citizens themselves—in which case they can put this book back down and go get a U.S. passport. See Chapter 2 for a full discussion of who can claim U.S. citizenship through parents.

The next stop along your journey is the Application Process Bog. We added this because, even after you realize that you match the eligibility requirements for a U.S. visa or green card, you can’t just march into a U.S. immigration office and claim your rights on the spot. The application process involves intensive document collection, form preparation, and generally molding your life around monitoring the handling of your case until you’ve gotten what you want. Even if you do your part correctly, most visas and green cards take a much longer time to obtain than you would ever imagine—anywhere from a few months to several years.

Some people never make it through the bog, simply because they fail to adequately prepare their applications or to respond to government follow-up requests on time. Others get bogged down through no fault of their own because the U.S. government loses track of their application. Dealing with bureaucracy and delays is such a large concern that we’ve devoted a whole chapter of this book to it: Chapter 4.

What You’ll Need to Know

We try not to use confusing legal language in this book. However, there are a few words that will be helpful to know, especially if you look at other books or websites. For further definitions, see the Glossary at the back of this book.

Citizen (U.S.). A person who owes allegiance to the U.S. government, is entitled to its protection, and enjoys the highest level of rights due to members of U.S. society. A person can become a U.S. citizen through birth in the United States or its territories; through parents who are citizens; or through naturalization (after applying for citizenship and passing the citizenship exam). Citizens cannot have their status taken away except for certain extraordinary reasons.

Immigrant. Though the general public usually calls any foreign-born newcomer to the United States an immigrant, the U.S. government prefers to think of immigrants as only including those people who have attained permanent residence or a green card.

Nonimmigrant. Everyone who comes to the United States legally but with only a short-term intent to stay is considered a nonimmigrant. For instance, students and tourists are nonimmigrants.

Green card. This slang term refers to the identification card (printed in green) carried by lawful permanent residents of the United States.

Lawful permanent resident. A green card holder. This is a person who has been approved to live in the United States for an unlimited amount of time. However, the status can be taken away for certain reasons, such as having committed a crime or made one’s home outside the United States. Usually after five years, a permanent resident can apply for U.S. citizenship. That number drops to three years if the immigrant has been married to and living with a U.S. citizen all that time.

Visa. A right to come to the border and apply for entry into the United States. An immigrant visa allows someone to enter the U.S. permanently; a nonimmigrant visa allows one to enter for a short-term, temporary stay. Physically, the visa usually appears as a stamp in the applicant’s passport, given by a U.S. consulate overseas. Having a visa doesn’t guarantee you’ll actually be able to enter the U.S., because U.S. immigration officials at the border must give you the final permission to do so. But assuming you pass this inspection, your visa is your ticket in.

If you forget these words, or encounter other words that you don’t understand, check the list at the back of this book.

And you should also read Chapter 6, on how to find and work with a high-quality immigration attorney. Attorneys are familiar with the difficulties of the application process, and the good ones will have access to inside phone numbers or email addresses to use when there’s a problem. You only have one chance at getting this right, so it’s often worth paying to hire an attorney.

If you make it this far, then the door to U.S. immigration should be opened to you—with one final caveat. This edition was prepared during the height of the COVID-19 or coronavirus pandemic. Bans had been placed upon entry by people from certain countries, U.S. government offices were closed, and obtaining any sort of U.S. visa became nearly impossible. Hopefully by the time you are reading this, the situation will have resolved. Nevertheless, added delays are likely to last far into the future, as the government works to catch up.

B.The Typical Application Process

Now let’s assume that you are not inadmissible and that you have what it takes to be eligible for either a permanent green card or a temporary U.S. visa. Although we’ll give you more detail about the application processes later in this book, here’s a preview of your main steps:

deciding whether you’ll need legal help to complete your application

if you’re applying for a permanent green card, or in some cases a temporary work visa, waiting while your U.S. family member or employer fills out what’s called a visa petition, proving either that you are the person’s family member or have been offered a job; and then waiting even longer for the U.S. immigration authorities to approve the petition

if, in the category under which you’re applying, only limited numbers of visas or green cards are given out every year, waiting until the people in line ahead of you have received their visas or green cards, otherwise known as waiting for a current priority date (which can take years)

filling out your own set of application forms, collecting documents, and submitting them to either a U.S. consulate in your home country or to the U.S. immigration authorities if you’re already in the United States

tracking your application to make sure it doesn’t get lost in the system

attending an interview at a consulate outside of the U.S. or a U.S. immigration office, at which your application is reviewed and you answer questions

receiving either a visa for entry into the U.S. or a green card or another right to stay in the U.S. (unless you are denied, in which case, you might want to reapply), and finally

entering the U.S. (if you’re not already here), protecting your status, and working toward the next step, if any. (If you received a green card, you might want to work toward U.S. citizenship, the highest and most secure status you can receive.)

One issue that will make a big difference in how your application proceeds is whether you are currently living inside or outside the United States. The U.S. has government offices to handle U.S. immigration applications both outside the U.S. (at U.S. consulates) and within (at USCIS district offices and service centers). However, not all of these offices handle all types of immigration applications. See Which Government Office Will Be Handling Your Immigration Application, below.

What’s more, many of the people who would prefer to file their immigration applications in the United States—because they have been living here for many years, perhaps illegally—will find that they are not allowed to do so. We will discuss this at length in Chapter 3.

The short explanation is that, if you either entered the United States illegally (not with a visa or another entry document or right), overstayed a visa, or you have worked here illegally, you cannot (with a few exceptions), use the services of a USCIS immigration office. Instead, you will likely need to leave the U.S. and go to a U.S. consulate to make your visa or green card request. That creates a huge problem for people who have lived unlawfully in the United States for more than six months after January 1, 1997. See Chapter 3 for details.

C.Immigration Eligibility Self-Quiz

Since we don’t know who you are, we’re going make a broad assumption: You’re looking for any possible way to spend time in the United States, preferably permanently.

The following quiz will help you find out what type of visa or green card you might be eligible for and which chapter of this book to read for more information.

Which Government Office Will Be Handling Your Immigration Application

Getting your green card or nonimmigrant visa may require dealing with more than one U.S. government agency, and maybe more than one office within that agency. The possibilities include the following:

The U.S. Department of State (DOS, at https://travel.state.gov), through U.S. embassies and consulates located around the world, and its Kentucky Consular Center, which handles the diversity visa lottery and coordinates USCIS petition approval with the embassies and consulates. If you’re coming from outside of the U.S., you’ll be dealing primarily with a U.S. consulate—and if you’re currently in the U.S., you, too, might have to travel to a consulate to complete your application. Not all U.S. consulates provide visa-processing services. To find more information about the U.S. consulate nearest to your home, either check listings for your country’s capital city, or go to www.usembassy.gov. Note that you cannot normally apply for an immigrant visa (permanent residence) in a U.S. embassy or consulate outside your home country, unless the U.S. has no diplomatic relationship with the government of your homeland. You might be able to apply for nonimmigrant visas (such as a tourist visa) in a third country, so long as you have never overstayed your permitted time in the U.S., even by one day.

The National Visa Center (NVC), a private company under contract to the DOS for the purpose of handling case files during certain intermediate parts of the green card application process. After USCIS approves a visa petition by a U.S.-based family member or company, the NVC is given the file and handles the case until it’s time to forward the file to the appropriate U.S. consulate or USCIS district office.

U.S. Citizenship and Immigration Services (USCIS, formerly called INS, at www.uscis.gov), an agency of the Department of Homeland Security (DHS). Even if you’re living outside the United States, you might have to deal with USCIS, particularly if you’re applying for a green card rather than a temporary visa. Most green card applications begin by a U.S.based family member or company filing a visa petition with USCIS. USCIS has various types of offices that handle immigration applications, including service centers and lockboxes (large processing facilities that serve a wide region, which you cannot visit in person), district offices (which interact with the public primarily by holding interviews), suboffices (like district offices, but smaller and with more limited services), Application Support Centers (where you go to have fingerprints taken), and asylum offices (where interviews on applications for asylum are held).

Customs and Border Protection (CBP at www.cbp.gov), also under DHS, responsible for patrolling the U.S. borders. This includes meeting you at an airport or other U.S. entry point when you arrive with your visa and doing a last check to make sure that your visa paperwork is in order and that you didn’t obtain it through fraud or by providing false information.

The U.S. Department of Labor (DOL at www.dol.gov), through its Employment and Training Administration. If your visa or green card application is based on a job with a U.S. employer, certain parts of the paperwork might have to be filed with and ruled on by the DOL. The DOL’s role is to make sure that hiring immigrant workers doesn’t make it harder for U.S. workers to get a job and that you’re being paid a fair wage (one that doesn’t act to bring down the wages of U.S. workers).

Although you needn’t learn a lot about these various agencies, it’s important to keep track of which one has your application as it makes its way through the pipeline. This is especially true if you ever change your address, because you might need to advise the office that actually has control of your application.

Now that you have some idea whether there’s a visa or green card that you qualify for, please go on to read either Chapter 2 (if you have parents or grandparents who were U.S. citizens) or Chapter 3, concerning inadmissibility. Then proceed straight to the chapter concerning the visa or green card you’re interested in.

If, after reading the detailed eligibility requirements, you confirm that you qualify, don’t forget to read Chapter 4, which contains crucial advice on handling the paperwork and dealing with bureaucrats, and Chapter 6 on when and how to find a good lawyer.

CHAPTER

2

Are You Already a U.S. Citizen?

A.Acquisition of Citizenship Through Birth to U.S. Citizen Parents

1.Birth Prior to May 24, 1934

2.Birth Between May 25, 1934, and January 12, 1941

3.Birth Between January 13, 1941, and December 23, 1952

4.Birth Between December 24, 1952, and November 13, 1986

5.Birth Between November 14, 1986, and the Present

6.Exception to Requirements for Retaining Citizenship

B.Automatic Derivation of U.S. Citizenship Through Naturalized Parents

1.Parents Naturalized Before May 24, 1934

2.Parents Naturalized Between May 24, 1934, and January 12, 1941

3.Parents Naturalized Between January 13, 1941, and December 23, 1952

4.Parents Naturalized Between December 24, 1952, and October 4, 1978

5.Parents Naturalized Between October 5, 1978, and February 26, 2001

6.Parent Born in U.S. or Naturalized Between February 27, 2001, and the Present

C.Obtaining Proof of U.S. Citizenship

1.U.S. Passports

2.Certificates of Citizenship

3.Certificates of Consular Registration of Birth

D.Dual Citizenship

Most people who are U.S. citizens already know it, either because they were born in the U.S. or because they successfully applied to become naturalized citizens. However, U.S. citizenship can be obtained in two additional, less well-known ways, namely:

birth outside the U.S. to U.S. citizen parents (acquisition), or

citizenship or naturalization of parents after the child has obtained a green card in the U.S. (derivation).

Many people born or living outside the U.S. are already U.S. citizens but don’t know it. The key to acquisition of citizenship is having U.S. citizens in your direct line of ancestry. Even if you were born elsewhere and your U.S. ancestors have perhaps not lived in the U.S. for a long time, U.S. citizenship might have still been passed down the line.

Derivation of citizenship helps people who live in the U.S., but who didn’t realize that minor children with green cards can acquire citizenship automatically, without having to apply for naturalization.

TIP

You can’t lose your citizenship just by living outside of the U.S. for too long. People who were born in the U.S. but have lived most of their lives in other countries sometimes believe that their long absence from the U.S. and voting or military activities elsewhere have stripped them of U.S. citizenship. That’s not the case—people born with U.S. citizenship will retain it for life unless they perform some act to intentionally lose it, such as filing an oath of renunciation.

RESOURCE

This book does not describe how people with green cards can apply to become naturalized citizens. For complete information on your eligibility and the process, see Becoming a U.S. Citizen: A Guide to the Law, Exam & Interview, by Ilona Bray (Nolo).

A.Acquisition of Citizenship Through Birth to U.S. Citizen Parents

In many circumstances, even though a child is born outside the U.S., if at least one parent was a U.S. citizen at the time of the birth, the child automatically acquires U.S. citizenship. When this child marries and has children, those children may also acquire U.S. citizenship at birth.

The laws governing whether or not a child born outside U.S. boundaries acquires U.S. citizenship from parents have changed several times over the decades. The law that was in effect on the date of the child’s birth determines whether the child acquired U.S. citizenship from a parent or grandparent. If anyone in your direct line of ancestry might be a U.S. citizen, it is worth your time to read what the U.S. laws were on the date of your birth and theirs.

What If You Were Born Out of Wedlock to a U.S. Citizen Father?

In many cases, your right to U.S. citizenship could depend on your relationship to a U.S. citizen father. However, if your parents weren’t married at the time you were born, the laws of the time might refer to you as illegitimate, meaning in legal terms that you have no recognized father.

As you’ll see in the sections below, your right to claim citizenship could depend on your providing evidence that your father took the actions necessary to satisfy the legitimation law of your birth country. Legitimation laws require fathers to legally acknowledge their children.

Many hoped change was on the horizon when, in June of 2017, the U.S. Supreme Court declared in a case called Sessions v. Morales-Santana that such gender-based distinctions (in Section 309(c) of the I.N.A.) violate the U.S. Constitution. The case concerned the laws in effect in 1962, the year Mr. Morales-Santana was born in the Dominican Republic. To acquire U.S citizenship through his unmarried father, he needed to show that the father had lived in the U.S. for at least ten years, with five of those years occurring after he turned 14, and the father must have either been listed on the birth certificate or taken other steps to acknowledge paternity, such as legitimating him prior to his 21st birthday and before he married.

Meanwhile, to acquire U.S. citizenship through an unmarried mother in and around 1962, the law required only that the mother had U.S. nationality when the child was born, and have previously been physically present in the U.S. or one of its outlying possessions for a continuous period of only one year. Justice Ruth Bader Ginsburg, who wrote the opinion, called this law’s variation in treatment of mothers versus fathers stunningly anachronistic, and found that it fails to achieve its supposed purposes of ensuring that children born overseas have a strong connection to the U.S. in order to be allowed U.S. citizenship.

Unfortunately for Mr. Morales-Santana (facing deportation from the U.S. for a criminal conviction), the Supreme Court did not feel it had the power to extend the shorter period of required physical presence to children of unwed citizen fathers. Such a move, it said, was up to the U.S. Congress. As of late 2020, Congress has not followed up. Perhaps it will, at some point, act to create a uniform prescription for acquisition of citizenship that’s not based on gender. Until then, however, the Court said that the longer residency requirement should continue to apply to everyone seeking to acquire U.S. citizenship under this (and of course, any other) section of U.S. law.

Most laws controlling the passage of U.S. citizenship from parent to child require that the parent, the child, or both have a period of living in the United States (residence). Sometimes the residence is required to be for a specified length of time (like five years) and sometimes it is not. When the law doesn’t say exactly how long the residence period must be, you can assume that even a brief time, such as a month, might be enough. The key element is often not the amount of time but whether or not U.S. Citizenship and Immigration Services (USCIS) or the State Department believes it was a residence—in other words, that the person truly made a home here—and not a visit. If the period of stay has the character of a residence, the length of time doesn’t matter.

1.Birth Prior to May 24, 1934

If you were born before 1934, the law provided that only your U.S. citizen father (not mother) could pass citizenship on to you. The rules were very simple. In order to pass on U.S. citizenship, the father must have resided in the U.S. at some time before the child’s birth. The law didn’t require any particular length of time or dates when the residence took place. Technically, a day or a week would be enough if it could be regarded as a residence and not just a visit. Once a child obtained U.S. citizenship at birth through a U.S. citizen father, there were no conditions to retaining it. These rules also applied to so-called illegitimate children (children born to unmarried parents), provided the U.S. citizen father had at some time legally legitimated the child (acknowledged paternal responsibility). U.S. citizenship was then acquired at the time of legitimation, without regard to the child’s age.

This law has been challenged several times as discriminatory, with some courts holding that citizenship could also be passed by the mother to the children.

Congress finally addressed this issue in 1994 and amended the law, retroactively, to provide that either parent could pass U.S. citizenship to children.

If someone was born before May 24, 1934, and either of that person’s parents was a U.S. citizen, citizenship might have been passed on to the child. And if either of your parents was born before May 24, 1934, they might have acquired U.S. citizenship from either of their parents, which they then passed on to you under laws in existence at a later date. A check of the family tree could well be worth your while.

2.Birth Between May 25, 1934, and January 12, 1941

If you were born between May 25, 1934, and January 12, 1941, you acquired U.S. citizenship at birth if both your parents were U.S. citizens and at least one had resided in the U.S. prior to your birth. The law at this time placed no additional conditions on retaining U.S. citizenship acquired in this way.

You could also get U.S. citizenship if only one of your parents was a U.S. citizen, as long as that parent had a prior U.S. residence. If your U.S. citizenship came from only one parent, you too would have been required to reside in the U.S. for at least two years between the ages of 14 and 28 in order to keep the citizenship you got at birth. Alternatively, you could retain citizenship if your noncitizen parent naturalized before you turned 18 and you began living in the U.S. permanently before age 18. Otherwise, your citizenship would be lost. If the one U.S. citizen parent was your father and your birth was illegitimate (took place while your parents weren’t married), the same rules applied provided your father legally legitimated you (acknowledged paternal responsibility). Citizenship was passed on to you at the time of legitimation without regard to your age, so long as you had met the retention requirements.

3.Birth Between January 13, 1941, and December 23, 1952

If you were born between January 13, 1941, and December 23, 1952, and both your parents were U.S. citizens and at least one had a prior residence in the U.S., you automatically acquired U.S. citizenship at birth, with no conditions to keeping it.

If only one parent was a U.S. citizen, that parent must have resided in the U.S. for at least ten years prior to your birth, and at least five of those years must have been after that parent reached the age of 16.

With a parent thus qualified, you then acquired U.S. citizenship at birth, but with conditions for retaining it. To keep your citizenship, you must have resided in the U.S. for at least two years between the ages of 14 and 28. Alternately, you could retain citizenship if your noncitizen parent naturalized before you turned 18 and you began living in the U.S. permanently before age 18. As a result of a U.S. Supreme Court decision, if you were born after October 9, 1952, your parent still had to fulfill the residence requirement in order to confer citizenship on you, but your own residence requirements for retaining U.S. citizenship were abolished—you need not have lived in the U.S. at all.

If your one U.S. citizen parent was your father and your birth took place while your parents weren’t married, the same rules applied provided you were legally legitimated (your father acknowledged paternal responsibility) prior to your 21st birthday and you were unmarried at the time of legitimation.

4.Birth Between December 24, 1952, and November 13, 1986

If at the time of your birth, both your parents were U.S. citizens and at least one had a prior residence in the U.S., you automatically acquired U.S. citizenship, with no other conditions for keeping it.

If only one parent was a U.S. citizen when you were born, that parent must have resided in the U.S. for at least ten years, and at least five of those years must have been after your parent reached the age of 14.

If your one U.S. citizen parent is your father and your birth took place while your parents weren’t married, the same rules apply provided you were legally legitimated (your father acknowledged paternal responsibility) prior to your 21st birthday and you were unmarried at the time of legitimation.

5.Birth Between November 14, 1986, and the Present

If at the time of your birth, both your parents were U.S. citizens and at least one had a prior residence in the U.S., you automatically acquired U.S. citizenship, with no conditions for keeping it.

If only one parent was a U.S. citizen at the time of your birth, that parent must have resided in the U.S. for at least five years and at least two of those years must have been after your parent reached the age of 14. Even with only one U.S. citizen parent, there are still no conditions to retaining your citizenship. If your one U.S. citizen parent is your father and your birth took place when the parents weren’t married, the same rules apply provided you were legally legitimated (your father acknowledged paternal responsibility) prior to your 18th birthday. Additionally, your father must have established paternity prior to your 18th birthday, either by acknowledgment or by court order, and must have stated, in writing, that he would support you financially until your 18th birthday.

6.Exception to Requirements for Retaining Citizenship

It is not unusual for a child born and raised outside the U.S. to have acquired U.S. citizenship at birth from parents (or grandparents, then through parents) without knowing it. The child, ignorant of the laws and circumstances affecting birthright, then proceeds to lose U.S. citizenship by failing to fulfill U.S. residency requirements.

Congress sought to address this by adding a law for people who once held U.S. citizenship but lost it by failing to fulfill the residency requirements that were in effect before 1978. Such persons can regain their citizenship by simply taking the oath of allegiance to the United States. It is not necessary that the person apply for naturalization. Contact a U.S. consulate or USCIS office for more information. The relevant statute is 8 U.S.C. Section 1435(d)(1), I.N.A. Section 324(d)(1).

B.Automatic Derivation of U.S. Citizenship Through Naturalized Parents

When one or both parents are or become naturalized U.S. citizens (by applying for citizenship and passing an exam), the children may, under certain circumstances, become U.S. citizens automatically. The law calls this derivation of citizenship. Becoming a U.S. citizen in this way has a special benefit because the child does not have to participate in a naturalization ceremony and can thereby avoid taking an oath renouncing allegiance to any country but the United States.

There are a number of people whose parents have been naturalized who do not realize they are U.S. citizens because they never went through a naturalization ceremony themselves. The laws on automatic naturalization of children have varied over the years. Once again, whether you achieved U.S. citizenship in this manner is determined by the laws as they were when your parents’ naturalization took place.

1.Parents Naturalized Before May 24, 1934

If either parent naturalized prior to your 21st birthday and you held a green card at the time, you automatically derived U.S. citizenship. This applied to you if you were either an illegitimate child of your U.S. citizen father (your parents weren’t married when you were born) and had been legally legitimated (your father acknowledged paternal responsibility); or you were an illegitimate child of your U.S. citizen mother, whether legitimated or not. Adopted children and stepchildren did not qualify.

2.Parents Naturalized Between May 24, 1934, and January 12, 1941

If both parents became naturalized prior to your 21st birthday and you held a green card at the time, you automatically derived U.S. citizenship. This applied to you if you were an illegitimate child of your father (born when your parents weren’t married) and had been legally legitimated. It also applied if you were an illegitimate child of your mother, whether legitimated or not. Adopted children did not qualify.

If only one parent became naturalized prior to your 21st birthday, you acquired U.S. citizenship automatically if you had held a green card for at least five years. The five years could have taken place before or after your parent was naturalized (as long as the years started before you turned 21), so if you hadn’t held a green card for that long when the naturalization occurred, you automatically became a U.S. citizen whenever you finally accumulated the five-year total.

3.Parents Naturalized Between January 13, 1941, and December 23, 1952

You derived U.S. citizenship if you held a green card and both parents were naturalized prior to your 18th birthday (or if, when one parent naturalized, the other parent was dead, or your parents were legally separated and the parent with legal custody of you naturalized). At this time, the law did not permit either so-called illegitimate (born to unmarried parents) or adopted children to derive citizenship in this manner.

4.Parents Naturalized Between December 24, 1952, and October 4, 1978

You derived U.S. citizenship if you were unmarried and both parents were naturalized prior to your 16th birthday. You must also have received a green card before your 18th birthday.

If only one parent naturalized, you could derive citizenship only if the other parent was dead, or if your parents were legally separated and the naturalized parent had custody of you. This applied to you if you were an illegitimate child of your U.S. citizen father (born while your parents weren’t married) and had been legally legitimated (your father accepted paternal responsibility) or an illegitimate child of your mother, whether legitimated or not. Adopted children and stepchildren did not qualify.

Naturalization for Certain Children Living Outside the United States

Children under 18 who live outside of the U.S. in the legal and physical custody of a U.S. citizen parent can also gain citizenship through that parent. The parent must have lived in the U.S. for at least five years, at least two of which were after the age of 14, or have a U.S. citizen parent (the child’s U.S. citizen grandparent) who meets this same residency requirement. In addition, children in this situation must, in most cases, enter the U.S. on a nonimmigrant visa (a tourist visa, for example) and submit an application to USCIS for a certificate of citizenship (the child’s citizenship is not automatic in this situation).

If, however, you have at least one parent who is a member of the U.S. armed forces or the government, you might automatically derive U.S. citizenship from abroad. You must be under 18 and a lawful permanent resident, and in the legal and physical custody of a U.S. citizen parent who is stationed and residing outside of the United States as a member of the U.S. armed forces or an employee of the U.S. government, or who is that person’s spouse.

If you plan to apply for recognition of your derived citizenship, get started as soon as possible—the entire process, including interview and approval of the certificate, must be completed before the child’s 18th birthday. This can be difficult, with many USCIS offices backed up for years with these applications. You can file the application from abroad if you need to.

5.Parents Naturalized Between October 5, 1978, and February 26, 2001

You derived U.S. citizenship if one of your parents was a U.S. citizen when you were born and never ceased to be a citizen and your other parent was naturalized prior to your 18th birthday, or the naturalization of both parents occurred before your 18th birthday. In either case, you needed to have been unmarried at the time, and have been lawfully admitted to the U.S. as a permanent resident (had a green card). This applies to all children, including those who are illegitimate (born while their parents weren’t married) and those who were adopted (so long as the adoption took place before you turned 18, and the naturalization(s) took place while you were living in the U.S. in the legal custody of your adoptive parent(s)). However, adopted children born prior to December 29, 1981, or after November 14, 1986, derived U.S. citizenship only if the adoption occurred prior to their 16th birthday.

6.Parent Born in U.S. or Naturalized Between February 27, 2001, and the Present

You derived U.S. citizenship if one of your parents was born in the U.S. or if one of your parents naturalized prior to your 18th birthday while you were living in the U.S., in the legal and physical custody of that parent. You must also have had a green card (permanent residence). This law applies to both natural and adopted children.

Notice that, for the first time in the history of this law, children may derive citizenship through a parent who was born in the U.S. rather than only through a parent who later naturalizes. This has the practical effect of turning many children into citizens the instant that they obtain a green card through one U.S. citizen parent. In recognition of this instant citizenship, USCIS does not require Affidavits of Support (Form I-864) to be submitted with such children’s green card applications.

C.Obtaining Proof of U.S. Citizenship

If you have acquired U.S. citizenship, at birth or derivatively after your birth as described in this chapter, you are automatically a U.S. citizen once the legal conditions have been satisfied. You don’t need to apply for any document to make yourself a citizen. Nevertheless, you’ll probably want a document proving your U.S. citizenship. It can be especially handy for situations such as getting a job. If your birth took place outside the territorial U.S., and you acquired U.S. citizenship at birth from your parents or derived it through your parents’ naturalization, the following types of documents will be recognized as proof of U.S. citizenship:

U.S. passports

certificates of citizenship, or

certificates of consular registration of birth.

1.U.S. Passports

If you were born abroad to U.S. citizen parents, you can apply for a U.S. passport in the same way as someone born in the United States. However, you will have the added requirement of establishing your citizenship claim. Passports are available from passport offices in the U.S. (run by the U.S. Department of State) and at U.S. consulates outside the U.S., but experience shows that you have a better chance at a U.S. consulate. Wherever you apply, you will be required to present proof of your parents’ U.S. citizenship and evidence that they, and you, complied with any applicable U.S. residency requirements. Review the sections on birth to a U.S. citizen for what you must prove under these circumstances. You will need to present documents such as birth or citizenship records of your parent or grandparent and work or tax records establishing U.S. residency for your parent or grandparent.

Sample U.S. Passport

2.Certificates of Citizenship

Certificates of citizenship are issued only inside the U.S. by USCIS offices. Anyone with a claim to U.S. citizenship can apply for a certificate of citizenship. In most cases it is more difficult and takes much longer to get a certificate of citizenship than a U.S. passport. However, in situations where your U.S. citizenship was obtained automatically through the naturalization of a parent, certificate of citizenship applications are the best choice. In fact, at the time a parent is naturalized, the children can, upon the parent’s request, be issued certificates of citizenship simultaneously with their naturalization certificates.

Certificates of citizenship not requested simultaneously with a parent’s naturalization can be applied for later, on Form N-600 (except that a slightly different form, numbered N-600K, must be used by children living outside of the U.S. who apply for citizenship through their parents, as described in Naturalization for Certain Children Living Outside the United States, above). Check the USCIS website for the current application fee, the forms, and detailed instructions for submission, and more. Filing online might be slightly cheaper than filing by mail.

We recommend that you also prepare a cover letter explaining the basis of your claim to U.S. citizenship and describing the documents you are offering as proof. These might, depending on your basis for applying, include your parents’ birth certificates, marriage certificate, and citizenship or naturalization certificates.

You should also present your own birth certificate, marriage certificates, and any divorce decrees to show legal changes in your name since birth. If you are not applying as the child of a naturalized citizen, your letter should also list whatever evidence you will be presenting to show that you have met any residency requirements as described in the section in this chapter on birth to a U.S. citizen.

You will most likely be called in for an interview on your application. In the busier USCIS offices, it can take up to a year to get a decision on an application for certificate of citizenship.

3.Certificates of Consular Registration of Birth

Certificates of consular registration of birth are issued by a U.S. consulate abroad. If your parents were U.S. citizens but were not physically in the U.S. when you were born, they might have registered your birth with a U.S. consulate to establish your right to U.S. citizenship and create an official birth record. If you’re a parent who has recently given birth to a child overseas, the State Department recommends that you apply for the consular report of birth abroad as soon as possible after your child’s birth. It is possible to apply, however, for children up to age 18. Your child, particularly if over age 13, can be required to appear with you when applying. There is a fee for the application.

Multiple copies can be issued at the time of registration but you might have to wait up to six months to obtain additional copies if you request them later. Therefore, parents should request at least several copies. In issuing the certificate, the consulate asks to see evidence that any residence requirements the law placed on your parents were fulfilled. The consular registration is conclusive proof of U.S. citizenship, but if your parents did not take the steps to get one when you were a child, there is no way of obtaining one now.

If your parents did not register your birth in time, you may either apply for a passport through a passport office in the U.S. or at a U.S. consulate abroad, or you may apply for a certificate of citizenship through the USCIS in the United States. You can typically get the passport much faster than the certificate of citizenship.

D.Dual Citizenship

If a child is born on U.S. soil and either or both parents are citizens of another country, it is quite possible that the child has dual citizenship. Whether or not dual citizenship is created depends on the laws of the parents’ country or countries. A child born in the U.S. is always a U.S. citizen in the eyes of the U.S. government, no matter what the laws of the parents’ homelands say. (The only exception to this rule is children born of foreign diplomats, who do not become U.S. citizens upon birth in this country.) However, if the foreign country recognizes the child as a citizen, the U.S. will recognize the non-U.S. citizenship as well.

Whenever a child is born to U.S. citizen parents but the birth takes place outside U.S. territory, again, the child may acquire dual citizenship. In this situation, the child will, depending on the laws of the country where the birth took place, usually have the nationality of that country, in addition to U.S. citizenship through the parents’ nationality. U.S. law recognizes dual citizenship under these circumstances, and if you have acquired dual citizenship this way, U.S. law lets you maintain dual status for life.

In addition, a person who becomes a U.S. citizen through naturalization can retain another country’s citizenship if the original country allows dual citizenship. Don’t go by what you’ve heard from friends on this one. Many countries around the world have recently changed their laws regarding dual citizenship, either to allow dual citizenship where they did not do so previously, or to restrict it where previously allowed.

If you’re contemplating applying for U.S. naturalization, check with the embassy of your home country to determine whether this might impact your legal status in your country of origin.

CHAPTER

3

Can You Enter or Stay in the U.S. at All?

A.Particularly Troublesome Grounds of Inadmissibility

1.Likely to Become a Public Charge (Receive Government Assistance)

2.Having Committed Crimes or Security Violations

3.Having Spent Too Much Time in the U.S.Unlawfully

4.Can You Get Around the Time Bars by Adjusting Status?

5.Repeat Violators: The Permanent Bar

6.Having Violated Immigration Laws or Used Fraud

B.Avoiding or Reversing an Inadmissibility Finding

1.Curing the Condition That Makes You Inadmissible

2.Proving That You’re Not Really Inadmissible

3.Proving That a Finding of Inadmissibility Is Factually Incorrect

4.Applying for a Waiver

Let’s say you’ve found a category of visa or green card that you think you’re eligible for—for example, a college has accepted you and you’re hoping to get a student visa, or your mother has become a U.S. citizen and you’re hoping to get a green card through her. The sad truth is that the U.S. immigration authorities still have the power to tell you no and deny your visa or green card if they decide you’re inadmissible.

But what is it to be inadmissible? It means that you have a condition, characteristic, or personal history that the U.S. government has decided is undesirable or would threaten the health and safety of people living in the United States. For example, if someone applying to immigrate is infected with tuberculosis, or once committed a violent crime, allowing that person into the United States might cause harm to U.S. citizens and residents.

The U.S. government keeps a list of what can make a person inadmissible. (See I.N.A. § 212, 8 U.S.C. § 1182.) The list includes affliction with various physical and mental disorders, commission of crimes, participation in terrorist or subversive activity, likelihood of needing welfare or other public assistance (becoming a public charge), and more. If you’re found to match one of the items on this list, then you won’t ordinarily be allowed to enter the United States. Or, if you’ve already entered, you won’t be allowed to receive a green card.

TIP

The government is stricter with green card applications than with applications for temporary visas. Although technically, your application for almost any temporary immigration benefit (such as a student visa) can be denied based on inadmissibility, in reality, inadmissibility is checked less closely when it comes to nonimmigrant applications, and certain grounds don’t apply to certain visas. Also, a waiver of a ground of inadmissibility is easier to get for a nonimmigrant visa—the law doesn’t attach the same tough waiver requirements as it does for a green card application. (See I.N.A. § 212(d)(3), 8 U.S.C. § 1182(d)(3).)

You might be wondering how the U.S. government finds out that you’re inadmissible. All green card and visa application forms ask questions designed to find out whether any grounds of inadmissibility apply in the case. Although some people obviously give false answers, those who are caught