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Q: Immigration Law ( Answered 5 out of 5 stars,   4 Comments )
Question  
Subject: Immigration Law
Category: Relationships and Society > Law
Asked by: bowler-ga
List Price: $7.50
Posted: 17 Mar 2004 16:43 PST
Expires: 16 Apr 2004 17:43 PDT
Question ID: 317768
Anyone versed in Immigration Law?

1) I have a friend (no this is not about me) who was born in the U.S.
and lived there for 30 years.  He obtained a work permit for Mexico
and got married to a local in Mexico.

2) He obtained all the correct paperwork and eventually they both
moved legally back to the U.S. after quite a wait.

3) They then decided for family reasons to go back to Mexico to live
at which time they became pregnant (the wife is not a U.S. citizen).

My question is, if the child is born in Mexico will that child be a
U.S. citizen or will the child at least be able to be brought into the
U.S. legally.?  My friend wishes some day to come back into the U.S.

I've located the following information and think that letter (e) may
apply but I'm not sure:

http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21/slb-8440?f=templates&fn=document-frame.htm#slb-act301

Clarification of Question by bowler-ga on 17 Mar 2004 18:13 PST
I meant to say (d) is the provision that I think applies to this
situation.  (see above).
Answer  
Subject: Re: Immigration Law
Answered By: serenata-ga on 17 Mar 2004 20:05 PST
Rated:5 out of 5 stars
 
Hi Bowler ~

The usual disclaimer - I am not an attorney, I am not licensed to
practice law, and this isn't legal advice - but from experience
working in immigration law in the past and as a volunteer at present,
(d) is the provision which applies.

So long as one parent is a citizen, the children of that parent are
also considered citizens and gaining the proper papers for entry to
the US should not be a problem. So long as the US citizen parent has
the proof of his own citizenship and the proper birth records of his
offspring, that child is considered a citizen.

While not germaine to your question, some countries consider any child
born within their boundaries a citizen of that country. When/if this
is the case, the child can usually choose his preference for
citizenship when he attains legal age.

Search strategies
====================

In this case, I used your own citation - which is the Regulation I
would have cited - and personal practical experience to answer this
question - or more precisely, confirm the answer you already had in
your possession.

Hope this helps,

Serenata
Google Answers Researcher

Request for Answer Clarification by bowler-ga on 19 Mar 2004 08:16 PST
Serenata,

Thank you for your confirmation.  I'm always unsure when I read laws
how they are to be interpreted.  I have one question though, that
friend thinks that the child may have "dual citizenship", meaning they
are simultaneously a citizen of both countries.  I know there are some
countries that this is possible.  Do you know if this is the case in
Mexico?  If this warrants another GA question then please advise.

Bowler-ga

Clarification of Answer by serenata-ga on 19 Mar 2004 09:15 PST
The "technicality" is that the US doesn't recognize 'dual citizenship' ...

For all intents and purposes, the US deems the child a citizen of the
US and no other country.

Mexico likewise considers the child a Mexican citizen - so for all
intents and purposes, at the moment the child does have "dual
citizenship". At some time, it will be necessary for the child to
choose (usually when he attains legal age) whether he is a citizen of
the US or Mexico - and you can't be a citizen of two countries -
technically, anyway.

My nephews were born on Japanese soil while their father served in the
military in Japan. For that reason, that they were born in a Japanese
hospital, and not a hospital on a US military base or on US soil, the
Japanese government considered them Japanese citizens.

When they were 18, they had to declare their US Citizenship. Neither
could run for president if he wanted to, because they were considered
to be Japanese citizens by circumstance of birth - even though both
parents were white, Anglo-Saxon, born-in-the USA US Citizens.

Sometimes our laws get a bit screwy, what?

Regards,

Serenata
bowler-ga rated this answer:5 out of 5 stars and gave an additional tip of: $1.00
Thank you Serenata.  You have expalined this quite puzzling situation
perfectly.  I had the answer in front of me but I was unsure of how to
interpret it.  This is an overlooked aspect of this service.

Bowler-ga

Comments  
Subject: Re: Immigration Law
From: serenata-ga on 25 Mar 2004 15:15 PST
 
Hello Bowler ~

Thank you for taking the time to rate my answer - and for the answer.

Thank you, too, for the tip. That was a nice thing for you to do.

Warm regards,

Serenata
Subject: Re: Immigration Law
From: borderbob-ga on 06 Apr 2004 04:40 PDT
 
The Immigration and Nationality Act (INA) provides the most legalistic
definitions.  The main question to ask is if the child was born in or
out of wedlock to a US Citizen father.

If the child was born in wedlock to a USC father than the following
applies INA 301 (g):

http://uscis.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-21/slb-8440?f=templates&fn=document-frame.htm#slb-act301


INA: ACT 301 - NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH 
 
Sec. 301. [8 U.S.C. 1401] The following shall be nationals and
citizens of the United States at birth:
 
(a) a person born in the United States, and subject to the jurisdiction thereof; 
 
(b) a person born in the United States to a member of an Indian,
Eskimo, Aleutian, or other aboriginal tribe: Provided, That the
granting of citizenship under this subsection shall not in any manner
impair or otherwise affect the right of such person to tribal or other
property;
 
(c) a person born outside of the United States and its outlying
possessions of parents both of whom are citizens of the United States
and one of whom has had a residence in the United States or one of its
outlying possessions, prior to the birth of such person;
 
(d) a person born outside of the United States and its outlying
possessions of parents one of whom is a citizen of the United States
who has been physically present in the United States or one of its
outlying possessions for a continuous period of one year prior to the
birth of such person, and the other of whom is a national, but not a
citizen of the United States;
 
(e) a person born in an outlying possession of the United States of
parents one of whom is a citizen of the United States who has been
physically present in the United States or one of its outlying
possessions for a continuous period of one year at any time prior to
the birth of such person;
 
(f) a person of unknown parentage found in the United States while
under the age of five years, until shown, prior to his attaining the
age of twenty-one years, not to have been born in the United States;
 
(g) a person born outside the geographical limits of the United States
and its outlying possessions of parents one of whom is an alien, and
the other a citizen of the United States who, prior to the birth of
such person, was physically present in the United States or its
outlying possessions for a period or periods totaling not less than
five years, at least two of which were after attaining the age of
fourteen years: Provided, That any periods of honorable service in the
Armed Forces of the United States, or periods of employment with the
United States Government or with an international organization as that
term is defined in section 1 of the International Organizations
Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent,
or any periods during which such citizen parent is physically present
abroad as the dependent unmarried son or daughter and a member of the
household of a person (A) honorably serving with the Armed Forces of
the United States, or (B) employed by the United States Government or
an international organization as defined in section 1 of the
International Organizations Immunities Act, may be included in order
to satisfy the physical-presence requirement of this paragraph. This
proviso shall be applicable to persons born on or after December 24,
1952, to the same extent as if it had become effective in its present
form on that date.





If the child was born out of wedlock to a USC Father than the
following section INA 309 (aka: Title 8 U.S.C. 1409) applies:

INA: ACT 309 - CHILDREN BORN OUT OF WEDLOCK 
 
Sec. 309. [8 U.S.C. 1409] 
 
(a) The provisions of paragraphs (c), (d), (e), and (g) of section
301, and of paragraph (2) of section 308, shall apply as of the date
of birth to a person born out of wedlock if-
 
(1) a blood relationship between the person and the father is
established by clear and convincing evidence,
 
(2) the father had the nationality of the United States at the time of
the person's birth,
 
(3) the father (unless deceased) has agreed in writing to provide
financial support for the person until the person reaches the age of
18 years, and
 
(4) while the person is under the age of 18 years- 
 
(A) the person is legitimated under the law of the person's residence or domicile, 
 
(B) the father acknowledges paternity of the person in writing under oath, or 
 
(C) the paternity of the person is established by adjudication of a
competent court.
 
(b) Except as otherwise provided in section 405, the provisions of
section 301(g) shall apply to a child born out of wedlock on or after
January 13, 1941, and before December 24, 1952, as of the date of
birth, if the paternity of such child is established at any time while
such child is under the age of twenty-one years by legitimation.
 
(c) Notwithstanding the provision of subsection (a) of this section, a
person born, after December 23, 1952, outside the United States and
out of wedlock shall be held to have acquired at birth the nationality
status of his mother, if the mother had the nationality of the United
States at the time of such person's birth, and if the mother had
previously been physically present in the United States or one of its
outlying possessions for a continuous period of one year.
Subject: Re: Immigration Law
From: borderbob-ga on 06 Apr 2004 04:47 PDT
 
301 (g) is the section that applies to a legitimate child born of a USC father:

a person born outside the geographical limits of the United States and
its outlying possessions of parents one of whom is an alien, and the
other a citizen of the United States who, prior to the birth of such
person, was physically present in the United States or its outlying
possessions for a period or periods totaling not less than five years,
at least two of which were after attaining the age of fourteen years.

The father has to be a USC and have lived inside the US prior to the
birth of his child for 5 years, at least two of which were after the
father was fourteen.

If in some rare case the father lived here until age 15 and then lived
in another country the rest of his life, the kid wouldn't qualify for
"jus sanguinis" (citizenship by blood of parents), but even at that
point he could petition for his child to be a USC as an Immigrant
IR-1.
Subject: Re: Immigration Law
From: serenata-ga on 10 Apr 2004 15:57 PDT
 
I believe he mentioned the applicable circumstances ... so the answer
is correct. But thank you for the information.

Serenata

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