You may be a citizen and not know it!

You are probably wondering how it is possible for a person to be a US citizen and not know it. Someone who is a naturalized citizen would probably remember the process she had to go through to get her certificate of citizenship, after waiting for five (or three if a spouse of a citizen) years from becoming a permanent resident, filing an application and paying the fee, being interviewed by an Immigration officer, and taking the Oath of Allegiance.Many individuals born abroad acquire US citizenship without knowing it. Citizenship may be conferred on a child born abroad and without need of filing for naturalization in either two ways. One is through derivative citizenship or automatic acquisition, which is citizenship derived by a child after birth through the naturalization of a parent. The other is through citizenship by descent or transmission at birth, which is the case for children born to citizen parent(s).

Different rules were at play at different periods of time within the last 60 years. The criteria for determining whether a parent’s citizenship is automatically acquired by or transmitted to the child generally depend on the law in effect at the time of the child’s birth. Other factors are also determinative of the child’s citizenship, depending on whether one or both parents are citizen at the time of the child’s birth, whether the child was born out of wedlock, the age of the child when one or both parents naturalized, among other considerations.

The rules pertaining to automatic transmission are highly complicated. However, residence or physical presence in the US or a US possession of the transmitting parent is generally required for varying periods depending on the law in effect on the date of birth of the child. For derivative citizenship, the most recent law is the Child Citizenship Act of 2001, which took effect on February 27, 2001. In general, derivative citizenship prior to February 27, 2001 required that both parents had to be

US citizens, either by both parents naturalizing at the same time or by one parent naturalizing with the other already being a US citizen. The parent(s) must have naturalized before the child’s 18th birthday and the child must be a lawful permanent resident. Adopted children may also derive citizenship from their adoptive parents, subject to a different set of requirements. With the enactment of the Child Citizenship Act, a child born outside the US will automatically acquire the citizenship of his biological or adoptive parent(s) as soon as ALLof the following, no matter in what order, happen: (1) the child is under 18 years old; (2) the child is or becomes a lawful permanent resident; (3) a parent of the child is naturalized after February 27, 2001; and (4) the child lives with and is in the legal custody of the parent who became the US citizen.

It is particularly important to know if a person is a citizen if he is facing removal proceedings for criminal related grounds. A citizen cannot be removed for any conviction, and cannot be prosecuted for any offense that has alienage as an element. If a person in removal proceedings can show proof that he is a US citizen, he may move that the removal proceedings be terminated.

There are two ways to prove that a person is a US citizen. One is to apply for a Certificate of Citizenship, which application is filed with the proper USCIS district office using Form N-600. The other way is to apply for a US passport. In both cases, the person has to submit supporting documents, including his birth certificate (or adoption documents, as the case may be), proof of parent’s citizenship, his green card, and proof that he lived with the citizen parent.

This area of the citizenship law is very complicated. Consult a lawyer if you think you are qualified or if you want an analysis of your qualification for a certificate of citizenship.

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Atty. Joel R. Bander is the partner of Bander Law Firm, LLP. With over 15 years of litigation and immigration experience, Mr. Bander is a leading litigator and accomplished trial strategist. He has successfully handled numerous cases before Federal, State, Civil, and Criminal Judges and has participated in hundreds of arbitrations and trials.

Bander Law Firm, LLP Downtown office address: 1055 W. 7th Street, Suite 1950, Los Angeles, CA, 90017. Tel: (213) 873–4333 Fax: (213) 873–4334. San Gabriel Office address: 1045 E. Valley Blvd., #A215, San Gabriel, CA 91776. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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( Published October 1, 2009 in Asian Journal Las Vegas p. B3 )

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