Birth outside US to a US citizen father and a non-US citizen mother

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pachanga

Registered Users (C)
I read some of the threads regarding the child birth outside the US soil but am still confused. I just need to clarify if my child can acquire an US citizenship after he/she is born outside US.

Situation:
My wife and I live in Mexico due to my contract work and will not be able to go back to US permanently until the end of 2013. She is pregnant and will have a birth in December 2012 or January 2013.

Facts:
  • I am a US citizen and naturalized in 2009.
  • I acquired my permanent residency in 2002 and have lived in US until January 2012.
  • My wife is a Mexican citizen and a legal permanent resident.

Question:
In what forms can I prove the 5 year physical presence in US? I graduated from high school and college (both undergraduate and graduate degrees) in US. I have worked in US from 1999 to January 2012.


Here is a list of items I can present to meet the requirement:
  • High school diplomat (3 years)
  • College transcripts (4.5 years)
  • Grad school transcripts (3 years)
  • Federal tax transcripts for the past 4 years (2008 to 2011)

Should I prepare other documents in case?

Thank you in advance
 
Your college and high school transcripts are perfect. They prove you were in the country because you need to be physically present to attend class. These probably cover 5 years, including after your 14th birthday. It looks like you're all set.
 
pachanga said:
In what forms can I prove the 5 year physical presence in US? I graduated from high school and college (both undergraduate and graduate degrees) in US. I have worked in US from 1999 to January 2012.
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You can also file a FOIA request for all entry-exit records.

But for this purpose, do 5 years have to be spent while you are a US citizen or even thopse years on green card also count?



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If one parent is a U.S. citizen and the other parent is not, the child is a citizen if
the U.S. citizen parent has been "physically present"[7] in the U.S. before the child's birth for a total period of at least five years, and
at least two of those five years were after the U.S. citizen parent's fourteenth birthday.[8]
 
But for this purpose, do 5 years have to be spent while you are a US citizen or even thopse years on green card also count?
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Any physical presence counts. On green card or without it, legal or illegal

(1) The Immigration and Nationality Act does not define "physical presence," but the Department interprets it as actual bodily presence. Any time spent in the United States or its outlying possessions, even without maintaining a U.S. residence, may be counted toward the required physical presence.
(2) Naturalized citizens may count any time they spent in the United States or its outlying possessions both before and after being naturalized, regardless of their status. Even citizens who, prior to lawful entry and naturalization, had spent time in the United States illegally can include that time.
(3) Residents of Canada and Mexico who commute daily to school or work in the United States may count the time they spend in the United States each day toward the requirement. Conversely, absences, no matter how short, from the United States and its outlying possessions cannot be counted as U.S. physical presence even if a U.S. residence is maintained, unless the proviso of 301(g) applies (i.e., the absence is as a result of U.S. military service, employment with the U.S. Government or an international organization as provided therein).
(4) The Department cannot waive or reduce the required period of physical presence.
(5) For methods of computing a person's periods of physical presence in the United States, see 7 FAM 1133.3-4.
 
I visited a few different US embassy sites. Basically, the following list of the primary evidence should suffice a proof of the 5-year presence requirement.

Primary Evidence:
  • School Transcripts
  • Social Security Earnings Statements
  • Tax Forms with W-2
  • Passport with Entry and Exist Stamps (Expired and Unexpired)

Mexico
The period of physical presence need not be continuous. Presence must be proven with concrete evidence (school transcripts, tax forms with accompanying W-2, Social Security earnings statement, pay receipts, passport with entry and exit stamps, etc.).

Hungary
There are several ways to prove your physical presence. Official records from the United States, such as high school diplomas and transcripts, university and advanced degree diplomas and transcripts are very helpful. A simple letter from the school saying you were a student there is usually not enough. Employment records are helpful too. If you have copies of your W2 tax forms from your employer, salary slips, and tax returns, they will help to establish your presence. If your parents could claim you as a dependent on their U.S. tax returns, you can bring their papers.

We are open to creativity (but not fraud). In the past, we have seen newspaper articles, school yearbooks, family picture albums, vaccination and doctor records, and letters with U.S. postmarks used to show time in the United States.

Sudan
If it is not clear that the parent has more than enough physical presence in the United States, it is important to obtain the exact dates of the parent's entries and departure. Expired passports and re-entry permits showing entries into or departures from the United States and other countries, U.S. school and employment records, tax withholding statements (W-2s), pay slips, etc., may serve as primary evidence of physical presence. U.S. Income Tax Returns (Forms 1040) or Social Security Statements on their own are generally not useful. Bank or credit card statements showing regular transactions, and other such documents may be helpful secondary evidence in establishing periods of U.S. physical presence. In some cases, it is could even be important to know the number of hours a parent spent in the United States on a particular day. For example, a U.S.-citizen resident of Mexico or Canada who commuted to the United States each day to work would be credited not with a whole day in the United States but only with the number of hours actually spent in the United States.

Lebanon
What constitutes U.S. physical presence: U.S. citizens may count any time they have been physically present in the United States or its outlying possessions prior to the child’s birth. Naturalized U.S. Citizens may count time spent in the U.S. prior to their naturalization, regardless of their status.

The following are examples of documents, which may be considered by the Consular Officer as primary evidence of physical presence in the United States:

Official school transcripts (secondary or higher)
Medical records
W-2 forms and tax returns
Social Security Earnings Record (SSA 7005)
Passports showing previous U.S. travel

Note: All documents must be originals or certified copies. The adjudicating officer may request that additional documentation be provided before approving the case.
 
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Phycisal presence requirement is different for different years. Both for naturalization and for transferring citizenship o children. It is possible to fulfill any one of those two and not to be able to fulfill the other one regardless of which one you choose first.
 
König said:
Wouldn't naturalisation itself be a proof of a continuous US presence in most cases?
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Not necessarily. A spouse of a USC under 316(b) doesn't need to have or prove any. A regular spouse under 316(a) only needs 1/2 of 3 years of physical presence to naturalize. Certain other provisions have other requirements. Even the regular 5 year LPR only has to prove 2 1/2 years to naturalize under 316(a).
 
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