US Citizens Born Abroad
Both an adult and a child born outside the US must prove that they possess a legitimate claim to U.S. citizenship in order to get a first US passport. The longer the wait to apply for a first passport, the more difficult it can be to gather the needed evidence to make a case for US citizenship. The evidence becomes significantly more difficult to gather with time, especially after the US citizen parent and other witnesses to the activities of their life pass away. In general, the child (or adult child of a US citizen born abroad) must prove that the transmitting US parent spent five or more years in the United States before his birth. The specific requirements vary. For example, the physical presence requirements for the child of a married couple differ from those of a child born to an unmarried, single parent. If you think that you may qualify for a US passport as a person born abroad to a US citizen and would be interested in claiming those rights, contact a U.S. immigration lawyer.
Adult Applications for Citizenship/Reversing Renunciation
For those whose U.S. Citizen parent has passed away, producing evidence of physical presence in the U.S. can be challenging. Let’s take Jamal (name changed to protect his privacy), Jamal was applying to gain U.S. citizenship through his mother after both of his parents had passed away sadly. To prove his mother had lived in the U.S. for longer than five years before he was born, Jamal used the “A file” (immigration and citizenship papers) of his mother, signed before she passed away. Chavin Immigration Law Office obtained the A file using the Freedom of Information Act. The A file showed that Jamal’s mother had been living in the U.S. for eight years. However, upon meeting with the U.S. Embassy American Citizen Services to review his application, the consular officer was not fully convinced of the legitimacy of the certifications made by his late mother on the A file. The officer requested further evidence. Jamal was able to produce a sworn statement from another relative to confirm his mother’s presence in the U.S. Fortunately, this new evidence was accepted by the U.S. Embassy, and Jamal received his U.S. passport in the mail six months later.
For those whose parent(s) renounced U.S. Citizenship before 1980, they may be able to obtain U.S. citizenship through this parent. In the 1980 supreme court case Vance v. Terrazas, U.S. citizenship law changed from saying that pledging allegiance to a foreign country counted is a voluntary form of expatriation, to say that U.S. citizenship can only be relinquished when the citizen acts with the intent to expatriate[1]. Several years ago, Chavin Immigration Law Office dealt with a case like this where Mary (name changed), was attempting to gain U.S. citizenship through her mother who had renounced her citizenship before 1980. Mary’s mother had renounced her citizenship when gaining another country’s passport to go and live with her husband, a foreign diplomat. Because Vance v. Terrazas changed the law under which Mary’s mother’s citizenship was revoked, Mary successfully applied to have her mother’s renunciation reversed. Once this was done, Mary was able to obtain U.S. citizenship through her mother.
The law has recently changed for those whose parents were not married at the time of their birth. The children of both unwed citizen mothers and unwed citizen fathers must show that their US citizen parent had five years of physical presence in the United States, two of which after fourteen in order to qualify for transmitted US citizenship[2].
In November of 2016, Luis Ramon Morales-Santana and his lawyer presented a case to the US Supreme Court in which Morales-Santana argued that the physical presence requirements for an unwed citizen father violated the Equal Protection Clause of the US Constitution’s Fifth Amendment because they differed from that of an unwed citizen mother. Morales-Santana’s father left the U.S. territory twenty days before his 19th birthday, just missing the requirement of ten years in U.S. territory, five after age fourteen. This requirement differed substantially from that of unwed mothers which required only one year of physical presence in U.S. territories for children to qualify for transmitted citizenship. In June 2017, the US Supreme Court decided Sessions v. Morales-Santana. They found the law discriminatory and ordered that it be changed[3]. The new rule states that all children born to unmarried parents must show the same amount of physical presence in the US. One year will no longer be enough to transmit US citizenship.
[1] Vance v. Terrazas, Justia US Supreme Court, https://supreme.justia.com/cases/federal/us/444/252/case.html (last visited June 27, 2018).
[2] Acquisition of U.S. Citizenship by a Child Born Abroad, U.S. Department of State, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Acquisition-US-Citizenship-Child-Born-Abroad.html (last visited June 27, 2018).
[3] Sessions v. Morales-Santana, Oyez, https://www.oyez.org/cases/2016/15-1191 (last visited June 27, 2018).