HELP: Citizen with INA 309

ManyM

ManyM

New Member
Hello, my father was a US Citizen and he gave me the GC when I was 12 years old (1986).
I was living with him at the time. I still have my GC valid today.
Under INA 309 (valid in 1986), would I have the legal right to claim the Citizenship today?
Unfortunatelly he passed away in 2018.
Any help or experience with this issue will be apreciarem.
Thank you.
 
INA 309 is about citizenship at birth for children born abroad. If you got a GC, then that means you didn't get citizenship at birth, so I don't think that section is relevant to you.

Prior to 2001, the provisions for citizenship for GC holder kids required that both parents naturalized (or the parents divorced and the parent having custody naturalized) after you got your GC and while you were under 18, or one of the parents was a citizen at your birth and the other parent naturalized after you got your GC and while you were under 18.
 
I think INA section 309 and 320 apply.
A child of a US citizen under 18 years of age living in the US can have GC and acquire citizenship by law.
 
"Prior to 2001 both parents naturalized (or ) after you got your GC and while you were under 18, or one of the parents was a citizen at your birth and the other parent naturalized after you got your GC and while you were under 18."

Exactly, as you stated,
"...prior to 2001, the provisions for citizenship for GC and while under 18, holder kids required that (in my case) the parents where divorced and the parent having custody naturalized..."
This is my situation. My father could have filled out the forms and pay for my GC but i could have the privilege to be a US citizen at this point.
 
Was your father a US citizen at the time of your birth? If not, I don't think 309 applies.

Were you born in 1986 or were you 12 years old in 1986? If the latter, I don't think 320A applies.
 
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Ok, what was the law in 1985 regarding children of US citizens (living in the US) born abroad the US that got GC ?
 
@ManyM You mentioned that your father was divorced when he naturalized before petitioning for your GC when you were 12. You entered the US at the age of 12 and were in the legal custody of your father during the time and he paid for your expenses. If this information is correct I think based on the former INA 321, you may be a US citizen the moment you entered the US and were admitted as a permanent resident. It should not matter that your father didn’t fill out any paperwork for your citizenship since the acquisition of citizenship is a matter of law. If the above is true, you may be able to apply for a passport with the evidence of your GC, birth certificate, copy of fathers passport/Nat cert. and some school records or whatever with his name on it to show that you were in his custody. You can do this in the US consulate in your country as well.

See below.
http://myattorneyusa.com/deriving-citizenship-through-parents-after-birth

Under the former INA § 321, a child may acquire citizenship if his or her parents meet any of the following conditions:
  • Both parents naturalize;
  • One surviving parent naturalizes if the other parent is deceased;
  • One parent naturalizes who has legal custody of the child if there is a legal separation of the parents; or
  • The child's mother naturalizes if the child was born out of wedlock and paternity has not been established by legitimization.
Furthermore, the child must have been under the age of 18 when the parent(s) naturalized. The child must also be residing in the United States while admitted as an LPR when the parent is naturalized or thereafter begins to reside permanently in the United States.12 The statute was amended in 1978 to apply the same to adopted children pursuant to the definition of adopted child found in INA § 101(b).
 
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Re post above. IF Fin is correct, and I’m not making any judgement on that, please note that school records etc only show physical custody. A legal document (court order showing custody, divorce agreement, etc) is needed to show legal custody. Either sole or joint custody is considered acceptable for legal custody.
 
Ok, my mom was legalĺy divorced from my father at this point and I was living with my father.
My mom was living with my sisters in other country.
 
@SusieQQQ is right about the physical/legal custody difference but since the father was able to petition the minor, bring him to the US and have him stay with him, would not have been possible without a legal custody, right? I’m honestly not familiar with family laws and I know they differ from state to state.
From the same website above:
Where parents are separated, Courts will consider a USC parent to have legal custody where he or she has a joint custody [8 C.F.R. § 320.1]. If the USC parent resides in a state where the law recognizes joint custody without a formal agreement or court degree, an informal agreement between the parents may demonstrate that the USC parent has legal custody.7 In the absence of a joint custody agreement, the Department of Homeland Security (DHS) will consider a variety of factors to ascertain if the USC parent has legal custody.
 
Fin said:
@SusieQQQ is right about the physical/legal custody difference but since the father was able to petition the minor, bring him to the US and have him stay with him, would not have been possible without a legal custody, right? .
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No, that’s commonly assumed but not the case. Over on the other forum I am a regular on, there are a number of people who have discovered that the notarized permission etc that was acceptable for the consulate to grant an immigrant visa to their minor child has not been acceptable to USCIS/DOS for N600/passport applications, and they have had to get court documents from their home countries to prove it. The requirements to prove citizenship are more onerous than those to get an immigrant visa. (Saw this in my own case too albeit for different reasons - my child got an immigrant visa as my derivative, but the same documents were not acceptable for naturalization purposes.)
All this assuming OP is able to still get any sort of documentation from 1985 anyway, I know for many people that would be tough. So the first hurdle is deciding if OP does qualify for citizenship, and the second is being able to prove it.
 
ManyM said:
Ok, my mom was legalĺy divorced from my father at this point and I was living with my father.
My mom was living with my sisters in other country.
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Was your father a citizen at your birth or did he naturalize before you got your green card?

(Do you have a copy of the divorce order showing your father had sole or joint custody of you? If not can you get a copy?)
 
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From the discussion above, it seems like a divorce decree with any custody information would greatly help the case. If @ManyM has a copy or can get it from the court, it would help.

On a side note, @ManyM if you had any children born outside the USA in the past 35 years and if you are able to get your US citizenship issue resolved, your children may have derived citizenship at birth as well. This is because IF DoS decides that you are a citizen, that would mean that you were a citizen since 1986 and since you have probably lived in the US for 5 years, your children could be US citizens at birth.
 
ManyM said:
I got to get a immigration lawyer a.s.a.p.
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Great decision. Like I explained to you over private message, a very likely claim of US citizenship can resolve all your issues you have about the ESTA related misrepresentation/loss of residency etc. it will help your kids (if any) as well. Just make sure that if you get your US citizenship, apply for their passport ASAP so that they don’t have issues like you 35 years later Good luck !
 
Yes I got a 12 Year old son and my daughter is 25.
It would be a honor and a dream come true at this point.
Thank you all and stay safe from COVID.
 
ManyM said:
Yes I got a 12 Year old son and my daughter is 25.
It would be a honor and a dream come true at this point.
Thank you all and stay safe from COVID.
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If you are accepted as a US citizen by Department if state, both of them will become US citizens as long as you spent 5 years in the US after you got your green card. Since you have a GC for 35 years, I assume you have. Make sure you discuss their case with the lawyer as well. I think he can help you out together a complete package to submit to DoS for all 3 of your passport applications. Money shall be well spent. Chao
 
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