Derivative citizenship thru a US GrandMother: Any help for a Canadian APPRECIATED :)

P

pointbob

New Member
I'm hoping to get some guidance on the possibility of my gaining US citizenship. I'm reaching out this forum since I've read some good information here. I'll try to recap and be direct:

I am a Canadian citizen living in Vancouver Canada: born May 23 1950.

Parents: Mother (b. Jan 4 1931 in Vancouver BC CANADIAN) and Father (b. Dec 21 1927 in Montreal Quebec CANADIAN ) married July 26 1949.

Grandparents Father's side: Grandfather (b. July 10 1895 Morrisburg Ontario CANADIAN) and GRANDMOTHER (b. Aug 23 1894 in Madrid New York AMERICAN CITIZEN) married in Montreal July 15, 1919

Grandparents Mother's side: (all Canadian)

I'm currently in the process of gathering birth certificates and marriage licences/newspaper clippings as well as other legal documentation establishing the above facts.

My working theory is that my father would have been considered an American citizen even though he did not apply for it. As such I'd like to attempt getting at least an American passport thru a local embassy to start the process.

My theory also needs to be backed up by relevant US immigration statutes which could support my claim - which is also why I'm reaching out to this forum for information.

Any help greatly appreciated. Thank you.

Eileen
 
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First, your father did not gain US citizenship at birth, because for people born prior to 1934, acquisition of US citizenship from birth abroad could only come from a US citizen father, not a US citizen mother. However, the Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103-416), section 101, rectified that inequality and made him a US citizen, and also retroactively applied that provision so that immigration and nationality laws would be applied (with respect to anyone including you) as if he were a citizen from birth.

Then there is the question about you. Due to the retroactive application of your father's citizenship, for purposes of immigration laws, it would be like you had been born abroad to a US citizen father. Under the Nationality Act of 1940 (in effect until 1952), in order for you to get US citizenship at birth, born abroad in wedlock to a US citizen parent and an alien parent, your US citizen parent had to have been physically present in the US (any time in his life before your birth), for a total of 10 years, including 5 years after he turned 16. Did your father meet this? I am guessing probably not since he was born and lived in Canada and didn't have US citizenship at the time.
 
newacct said:
First, your father did not gain US citizenship at birth, because for people born prior to 1934, acquisition of US citizenship from birth abroad could only come from a US citizen father, not a US citizen mother. However, the Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103-416), section 101, rectified that inequality and made him a US citizen, and also retroactively applied that provision so that immigration and nationality laws would be applied (with respect to anyone including you) as if he were a citizen from birth.

Then there is the question about you. Due to the retroactive application of your father's citizenship, for purposes of immigration laws, it would be like you had been born abroad to a US citizen father. Under the Nationality Act of 1940 (in effect until 1952), in order for you to get US citizenship at birth, born abroad in wedlock to a US citizen parent and an alien parent, your US citizen parent had to have been physically present in the US (any time in his life before your birth), for a total of 10 years, including 5 years after he turned 16. Did your father meet this? I am guessing probably not since he was born and lived in Canada and didn't have US citizenship at the time.
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Thank you so much for your time to reply! And excuse my delay in replying.

My father spent a lot of time in the usa due to the nature of his work; industrial parts sales. Unfortunately he has passed away so he personally cannot confirm the actual total length of time (10 years). But according to my mother he spent up to 4-5 months at a time in the usa travelling over a span of 20 years. I imagine this possibly is the crux of my successful application for citizenship. Would an affadavit from my mother suffice as evidence to him being physically at times in the us?
 
Note that the 10 years must be before you were born. Affidavit is probably not enough. Best if if you can find school records (and that only covers the non-vacation periods), but I assume he didn't go to school in the US? Passports with entry stamps may help. Work records may help if he worked in the US. What exactly did he do during those 4-5 month trips? Receipts, appointments, etc. also help but they only prove particular points in time.
 
newacct said:
Note that the 10 years must be before you were born. Affidavit is probably not enough. Best if if you can find school records (and that only covers the non-vacation periods), but I assume he didn't go to school in the US? Passports with entry stamps may help. Work records may help if he worked in the US. What exactly did he do during those 4-5 month trips? Receipts, appointments, etc. also help but they only prove particular points in time.
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Thanks Again. Any chance to clarify something I came across researching the US immigration statutes. Could this 1994 amendment below now allow for my citizenship?

"(Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. No. 103-416, 108 Stat. 4305) Prior to INTCA, a considerable number of children born to one alien parent and one U.S. citizen parent lost their citizenship as a result of their failure to satisfy the various retention requirements which were in effect from May 24, 1934 to October 10, 1978. INA §324(d)(1) now provides that a person who was a U.S. citizen at birth who lost citizenship for failing to meet certain physical presence retention requirements in effect before October 10, 1978 will, upon taking the oath of allegiance, once again be considered be a U.S. citizen and have the status of a U.S. citizen by birth. Persons born prior to May 24, 1934 to a U.S. citizen mother and an alien father and persons born on or after May 24, 1934 but before October 10, 1978 to a U.S. citizen parent and one alien parent, who lost U.S. citizenship for failure to comply with the retention requirements may now regain citizenship in light of these amendments. "
 
Retention requirements do not apply to you even if you were a US citizen at birth, because the provision which gave citizenship to your father (and which applied the law retroactively as if he were a citizen all along) also specified that retention requirements do not apply to people claiming citizenship by descent from your father. So you could not have lost citizenship in that way; and there is nothing to "regain".

Immigration and Nationality Technical Corrections Act of 1994, section 101(b):
(b) WAIVER OF RETENTION REQUIREMENTS.— Any provision of law (including section 301(b) of the Immigration and Nationality Act (as in effect before October 10, 1978), and the provisos of section 201(g) of the Nationality Act of 1940) that provided for a person's loss of citizenship or nationality if the person failed to come to, or reside or be physically present in, the United States shall not apply in the case of a person claiming United States citizenship on such persons descent from an individual described in section 301(h) of the Immigration and Nationality Act (as added by subsection (a)).
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newacct said:
So you could not have lost citizenship in that way; and there is nothing to "regain".

Immigration and Nationality Technical Corrections Act of 1994, section 101(b):
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Haha so if I have never lost citizenship that means I do not need to regain it. Circular argument I know but it sounds as if that I'm a US citizen then.

Also - since my father may have failed to technically reside 10 years in the US in order to retain his citizenship - can I bypass my father entirely and truly use the "grandparent" clause relying on my US maternal grandmother (born pre-1934) as the basis for my citizenship.
 
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pointbob said:
Haha so if I have never lost citizenship that means I do not need to regain it. Circular argument I know but it sounds as if that I'm a US citizen then.

Also - since my father may have failed to technically reside 10 years in the US in order to retain his citizenship - can I bypass my father entirely and truly use the "grandparent" clause relying on my US maternal grandmother (born pre-1934) as the basis for my citizenship.
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Your father was born before 1934; he was never subject to any retention requirements.
 
newacct said:
Retention requirements do not apply to you even if you were a US citizen at birth, because the provision which gave citizenship to your father (and which applied the law retroactively as if he were a citizen all along) also specified that retention requirements do not apply to people claiming citizenship by descent from your father. So you could not have lost citizenship in that way; and there is nothing to "regain".

Immigration and Nationality Technical Corrections Act of 1994, section 101(b):
Click to expand...

Basically I am "getting it" about the problem with me acquiring citizenship by descent thru my father since the applicable 1940 Act demands he lived 10 years in the US prior to my birth. Even though he became a US citizen - his ability to "transfer" that citizenship to his kids was conditional to his 10 year residency.

But the problem I'm having is that my dad was not even aware he could have been a US citizen until the 1994 INTAC corrected the gender inequality of the 1940 act (his mother ~ my grandmother was a US born citizen who lived in the US until she was 24). So even if he wanted to be a US citizen he was prevented from claiming that birthright until he was almost 70. Further he died a year later not even being aware of this 1994 correction.

I'm sure if the 1940 Act did not have the stipulation that citizenship could only be transferred from his father he would have spent more time with mom's family in New York state; thereby satisfying the residence reqs. of section 201 (g) 1940. My grandmother had a large family in the US and her sister (my great Aunt) also married a Canadian. Dad did want to be an American and his multiple trips to the US as a non-immigrant/traveler showed his unawareness of any possibility he ever could be a citizen.

In fact I've been to the US many times and felt a real American connection but was completely in the dark about any citizenship possibilities until I recently started researching my genealogy.

Could the doctrine of dou ble const ructive reten tion apply to me via my US born grandmother who lived in the US until her 20s?
 
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