Jackie

Hi to you all :)

I was born and spent my first 7 years of life in the US, I also visited
my father there afterwards. I have 2 sons born in Poland, the older one
was born out of wedlock, so he will get an US passport, as I am able to
proove that I spent 1 year in the States before his birth (I have
school records). But I have a problem with my younger son. He was born
after I married my husband (a Polish citizen), and I was informed in
the consulate that in order to get a US passport for him, I must prove
that I spent at least 5 years in the States, 2 of which are supposed to
be after my 14-th birthday. I have no way to prove this, although it is
true. But I found this info
http://uscis.gov/lpBin/lpext.dll/ins...htm#slb-act322

My deceased father was a naturalized US citizen. He spent many years in
the US after gaining citizenship. It's easy for me to prove this as my
mother gets a US pension after him. Is this regulation true and I will
be able to get a passport for my younger son? Maybe there is a
amendment for this regulation somewhere that I'm unable to find?

The consular officials won't help me much, they know almost nothing
about immigration law - amazing, but true. I was the one to provide the
information of my older son being able to get a US passport :(

Rich Wales

"Jackie" (born in the US but now living in Poland) asked about
the US citizenship status of her two Polish-born sons; the first
was born out of wedlock, while the second was born after Jackie's
marriage to a Polish citizen.

Since Jackie cannot prove that she spent at least five years in
the US (including at least two years after her 14th birthday)
prior to the birth of her second son, she appears unable to get
him recognized as a US citizen by birth. (Different, and more
liberal, rules apply to a child born abroad, out of wedlock, to
an American mother, which is why her first son had a much easier
time getting recognized as a US citizen.)

Jackie then asked if section 322 of the Immigration and Nation-
ality Act is for real. This section would allow her second son
to become a naturalized US citizen, based on her father's long
presence in the US.

Yes, Jackie, section 322 of the Immigration and Nationality Act
is genuine, and it's still in force. This provision came into
being in 1994. A further change (in effect since 2000) now lets
time spent in the US by the child's grandparent =after= the
child's birth count; originally, only time spent in the US by
the grandparent before the child was born could be counted.

There is a subtle difference between the requirement that Jackie
is unable to prove, and the Section 322 rule. If Jackie could
prove the required amount of presence in the US prior to her
second son's birth, then her second son would be considered to
have had US citizenship since the day he was born (just like her
first son). Under Section 322, her second son would be consid-
ered to have =become= a US citizen as of the date the application
is approved -- but this citizenship would =not= be retroactive
to her son's birth. This distinction probably doesn't matter
too much, but Jackie (and her son) should be aware of it.

Also, note that section 322 can help Jackie's second son only
if he is still under 18. And Jackie and her son would need
to travel to the US in order to finalize his being given US
citizenship (though this could be a short vacation trip --
they would =not= have to move permanently to the US).

Jackie may (or may not) wish to note that if she and her family
=were= to move permanently to the US (i.e., if Jackie were to
sponsor her husband and second son for "green cards"), then her
second son would automatically become a naturalized US citizen
right away, as soon as he arrived in the US (see section 320
of the Immigration and Nationality Act, which was added to the
law in 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.

Jackie

Thank you for this information :)

We are planning to move to the US permanently anyway, so I think
sponsoring my younger son for a GC will be the best option. I
considered starting a naturalization process in the Polish consulate,
as I thought this would take less time than applying and waiting for a
immigrant visa.

However, the consulate officials claim that waiting for an immigrant
visa in Poland takes only 2-3 months, with the advantage that as we
enter the States my son will already have US citizenship. No need for
waiting for naturalization. Same as you say Rich, so I guess they
aren't making this up ;)

Rete

Glad that the US Consulate in Poland will do the direct consular approach for you. It will save you a lot of time. You can get started on the process by looking for their website and d/l the I-130 form you will need and gathering the documentation you will need for the interview, i.e. official marriage certificate, birth certificates, passports, police clearance if applicable, etc. Can you afford to sponsor your husband and son? You will need to complete an affidavit of support (I-864) for them. Or perhaps someone in the US is financial able to do it for them.

When you get here, your son will be a US Citizen and can apply for a US Passport. However, he will need his physical green card by the age of 16 in order to get the 10 year green card. I found this out from my friend. She and her husband naturalized but her son did until recently. When he was approved for residency, she went for his US Passport and it was approved however, he only got it for 2 years (he is 14) and they were told for him to get the 10 year US Passport, the US Passport office wants his actual green card and/or the N-600.

Rete

Jackie

    > When you get here, your son will be a US Citizen and can apply for a US
    > Passport. However, he will need his physical green card by the age of
    > 16 in order to get the 10 year green card.

I hope you mean 10 year passport ;)

    > I found this out from my
    > friend. She and her husband naturalized but her son did until recently.
    > When he was approved for residency, she went for his US Passport and it
    > was approved however, he only got it for 2 years (he is 14) and they
    > were told for him to get the 10 year US Passport, the US Passport office
    > wants his actual green card and/or the N-600.

I"ll keep that in mind. My younger son is only 6 years old, he will
probably get more than one passport before he's 16.

One more thing - one lady officer in the consulate told me that it
often happens the consul doesn't ask for proof of the US parent's
presence in the States. It is enough to write down the dates. I'm a
little scared of doing this. If it is ever revealed (I don't know if
this is likely) that the consul never checked my presence in US, is it
possible my son's citizenship will be removed? It is not my duty to
know the consul's job, but it is my duty to worry about the damage this
can cause. I'm not sure about this... I wouldn't be lying, I HAVE been
in the US after my 14-th birthday, I just have no proof.

Jackie

Jackie

As usual, I lost a part of my answer ;)

    > Can you afford to
    > sponsor your husband and son? You will need to complete an affidavit of
    > support (I-864) for them. Or perhaps someone in the US is financial able
    > to do it for them.

Rete, my husband is already in the US. We couldn't afford to move the
entire family at once.
I have not been working in the States, as I spent a considerable amount
of time lately flying in and out of Poland, where I stayed in the
hospital with my son. I wrote about my situation on the marriage-based
group. I know my husband cannot sponsor as he is not a US citizen yet,
so I will have to find another joint sponsor (my brother is already a
joint sponsor for my husband) for our son. Luckily, I have many
relatives in the US who are willing to help.