Salto

Question:

I met a woman who was born in NYC 31 years ago and has lived in Guatemala for the
past 20 years. About 10 years ago she lived and worked in San Jose Calif. and
returned to Guatemala.

She has a daughter that was born in guatemala 8 years ago out ot wedlock.

Is the daughter a US Citizen since her mother is, either way, how can the mother
bring her daughter to the US where the mother lives. How can the mother get US papers
for the daughter.

No spams please, my wide knows this woman from church !!!

Rich Wales

"salto" wrote:

> I met a woman who was born in NYC 31 years ago and has lived in Guatemala for
> the past 20 years. About 10 years ago she lived and worked in San Jose Calif.
> and returned to Guatemala. She has a daughter that was born in Guatemala 8
> years ago out of wedlock. Is the daughter a US citizen since her mother is
> . . . ?

Short answer: Yes.

Longer answer:

According to section 309(c) of the Immigration and Nationality Act [8 USC 1409(c)], a
non-US-born child born out of wedlock to an American mother is a US citizen by birth,
as long as the mother had previously spent at least one continuous full year in the
US (or an outlying possession of the US -- i.e., American Samoa or Swains Island in
the South Pacific).

Note that it's far easier for a non-US-born illegitimate child of an American mother
to be recognized as a US citizen than if the child's American parent is his/her
father. In that case, the father's paternity needs to be formally recognized before
the child grows up, and the father must agree (in writing) to support the child until
he/she is an adult. [INA 309(a); 8 USC 1409(a).] This law has been challenged on the
grounds that it discriminated on the basis of sex, but it was upheld by the US
Supreme Court in 2001 (Nguyen v. INS).

Rich Wales [email protected] http://www.richw.org/dualcit/ *DISCLAIMER: I am not a
lawyer, professional immigration consultant, or consular officer. My comments are for
discussion purposes only and are not intended to be relied upon as legal or
professional advice.

Chris Moorehead

In article <[email protected] u>,
[email protected] says...
    > "salto" wrote:
    >
    > > I met a woman who was born in NYC 31 years ago and has lived in Guatemala for
    > > the past 20 years. About 10 years ago she lived and worked in San Jose Calif.
    > > and returned to Guatemala. She has a daughter that was born in Guatemala 8
    > > years ago out of wedlock. Is the daughter a US citizen since her mother is
    > > . . . ?
    >
    > Short answer: Yes.
    >
    > Longer answer:
    >
    > According to section 309(c) of the Immigration and Nationality Act [8 USC 1409(c)],
    > a non-US-born child born out of wedlock to an American mother is a US citizen by
    > birth, as long as the mother had previously spent at least one continuous full year
    > in the US (or an outlying possession of the US -- i.e., American Samoa or Swains
    > Island in the South Pacific).

Rich, does this mean that it's easier for an out-of-wedlock child to obtain US
citizenship than one born in wedlock to a couple of which only one is a US citizen?
In the latter case, the "physical presence" requirement for the USC parent is 5
years, with 2 of those years after age 14.

I believe you, but it seems odd.

Chris

--
CHRISTOPHER J. MOOREHEAD Durham, NC [email protected]

Rich Wales

Chris Moorehead wrote:

> Rich, does this mean that it's easier for an out-of-wedlock child to obtain US
> citizenship than one born in wedlock to a couple of which only one is a US
> citizen?

Yes, that's exactly what it means.

As I understand INA 309(c) [8 USC 1409(c)], the American mother of a child born out
of wedlock, outside the US, does =not= need to meet the ordinary US physical presence
requirements in order for her child to have US citizenship by birth.

> I believe you, but it seems odd.

You're right, it is odd.

Rich Wales [email protected] http://www.richw.org/dualcit/ *DISCLAIMER: I am not a
lawyer, professional immigration consultant, or consular officer. My comments are for
discussion purposes only and are not intended to be relied upon as legal or
professional advice.

Anonymous

And hear I thought that my daughter would need to return to the USA for 5 years,
based on her year of birth 1983. She moved with me to Canada when she was 13.

Also my son moved here when he was 7, born in 1988 only need to return for 2 years.

Both of my children feel it is in the best interest of thier children to have dual
citizenship both here in Canada and the US of A.

Am I worng?

Thank You

LadyBug

On 16 Jul 2002 16:17:14 -0000, [email protected] (Rich Wales) wrote:

    >Chris Moorehead wrote:
    >
    > > Rich, does this mean that it's easier for an out-of-wedlock child to obtain US
    > > citizenship than one born in wedlock to a couple of which only one is a US
    > > citizen?
    >
    >Yes, that's exactly what it means.
    >
    >As I understand INA 309(c) [8 USC 1409(c)], the American mother of a child born out
    >of wedlock, outside the US, does =not= need to meet the ordinary US physical
    >presence requirements in order for her child to have US citizenship by birth.
    >
    > > I believe you, but it seems odd.
    >
    >You're right, it is odd.
    >
    >Rich Wales [email protected] http://www.richw.org/dualcit/ *DISCLAIMER: I am not a
    >lawyer, professional immigration consultant, or consular officer. My comments are
    >for discussion purposes only and are not intended to be relied upon as legal or
    >professional advice.

Rich Wales

"LadyBug" wrote:

> And here I thought that my daughter would need to return to the USA for 5
> years, based on her year of birth (1983) . . . . Also my son moved here when he
> was 7, born in 1988, only need to return for 2 years.

I think you understand the law correctly now, but just to be 100% sure that you (and
others) understand the situation fully, keep in mind that the US physical presence
rules which apply to children born outside the US to an American parent apply to the
PARENT -- NOT the child.

That is, in order for the CHILD to have automatic US citizenship at birth in one of
these cases, the PARENT must have previously spent a certain minimum amount of time
in the US before the child was born. For children born on or after 14 November 1986,
that minimum time in the US is five years -- of which at least two years must have
taken place after the parent's 14th birthday.

A child born outside the US, who acquires US citizenship at birth in this fashion,
will keep US citizenship forever (unless he/she voluntarily and intentionally does
something later on to give it up). At one time, many years ago, there were laws that
said a non-US-born US citizen had to spend a certain minimum amount of time in the US
by age 28 in order to retain US citizenship, but those provisions were all repealed
long ago and no longer apply to anyone.

Sorry if you already knew the above and I misunderstood what you were trying to say
in your last posting.

Rich Wales [email protected] http://www.richw.org/dualcit/ *DISCLAIMER: I am not a
lawyer, professional immigration consultant, or consular officer. My comments are for
discussion purposes only and are not intended to be relied upon as legal or
professional advice.

James Donovan

Chris Moorehead <[email protected]> wrote in message
news:<[email protected]>. ..
    > In article <[email protected] u>,
    > [email protected] says...
    > > "salto" wrote:
    > >
    > > > I met a woman who was born in NYC 31 years ago and has lived in Guatemala
    > > > for the past 20 years. About 10 years ago she lived and worked in San Jose
    > > > Calif. and returned to Guatemala. She has a daughter that was born in
    > > > Guatemala 8 years ago out of wedlock. Is the daughter a US citizen since
    > > > her mother is
    > > > . . . ?
    > >
    > > Short answer: Yes.
    > >
    > > Longer answer:
    > >
    > > According to section 309(c) of the Immigration and Nationality Act [8 USC
    > > 1409(c)], a non-US-born child born out of wedlock to an American mother is a US
    > > citizen by birth, as long as the mother had previously spent at least one
    > > continuous full year in the US (or an outlying possession of the US -- i.e.,
    > > American Samoa or Swains Island in the South Pacific).
    >
    > Rich, does this mean that it's easier for an out-of-wedlock child to obtain US
    > citizenship than one born in wedlock to a couple of which only one is a US citizen?
    > In the latter case, the "physical presence" requirement for the USC parent is 5
    > years, with 2 of those years after age 14.
    >
    > I believe you, but it seems odd.
    >
    > Chris

I believe the Child Citizenship act has now changed this, where the child of one USC
parent in wedlock with another non USC parent is a citizen. The requirement though,
is for the child to first become a permanent resident.

Rich Wales

James Donovan wrote:

> I believe the Child Citizenship act has now changed this, where the child of
> one USC parent in wedlock with another non USC parent is a citizen. The
> requirement though, is for the child to first become a permanent resident.

We're talking about two different laws here.

Sections 301 et seq. of the Immigration and Nationality Act [8 USC 1401 et seq.]
describe situations in which a non-US-born child is considered to have acquired US
citizenship at birth.

The "Child Citizenship Act of 2000" describes ways in which a non-US-born child, who
did =not= get US citizenship automatically at birth (because the requirements in INA
301 et seq. were not satisfied), can become a US citizen later on, through what is
effectively an expedited naturalization. (Note, BTW, that any acquisition of
citizenship which did not happen automatically at birth, and which is not deemed to
be retroactive to birth, is by definition considered "naturalization"; see the
definition of "naturalization" in INA 101 [8 USC 1101].)

For example, as you mentioned, the Child Citizenship Act of 2000 says that a child
under 18 (natural or adopted) of a US citizen, who is living in the US with his/her
American parent, and who is not already a US citizen, will become a US citizen
immediately and automatically as soon as he/she becomes a lawful permanent resident.
Any children who were in this situation when the new law took effect on 27 February
2001 became instant US citizens, without their parents having to file any sort of
application.

But the child's US citizenship in such cases dates from the time the child became a
permanent resident (or 27 February 2001, if the child already had his/her "green
card" on that date). The child does =not= get US citizenship retroactively to his/her
date of birth. The difference may not matter much in practice (unless the child had
aspirations to run for President or VP some day), but, technically, there =is= a
difference.

The Child Citizenship Act of 2000 did not change INA 301 et seq., so it is still
possible for a non-US-born child of a US citizen or citizens to be considered a US
citizen at birth, if the child's American parent(s) should happen to meet the
requirements of these provisions of the law.

More comments about the Child Citizenship Act of 2000 can be found in my FAQ, at:
http://www.richw.org/dualcit/law.html#2000

Rich Wales [email protected] http://www.richw.org/dualcit/ *DISCLAIMER: I am not a
lawyer, professional immigration consultant, or consular officer. My comments are for
discussion purposes only and are not intended to be relied upon as legal or
professional advice.