Tough Q: Expert Advise needed 301 (g) Applicable for children of naturalized citizens

[aaifor]

This is a tough one -for experts.

I will likely acquire US citizenship (5 years after Employed based Green card) this year and may move back to India (native). My spouse has a pending Green card application and she will move back with me. Not worried about her green card application getting rejected due to us leaving the US - just laying out the facts.

Question
If we have a kid who is born in India after we have moved back does provision 301 (g) of acquisition of US citizenship to a child born abroad apply?

Here is 301 (g) link http://travel.state.gov/law/citizenship/citizenship_5199.html

A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen, is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen, is required for physical presence in the United States or one of its outlying possessions to transmit U.S. citizenship to the child.) The U.S. citizen parent must be genetically related to the child to transmit U.S. citizenship.



Other Questions

1. IS the period of 5 year physical residency in the United States mandated to be a citizen? (I would have lived in the US for over 11 years all after the age of 14 before I leave but maybe only 6- 8 months as a citizen. All stay was legal - either on H1-B visa or a Green Card)
2. Stating the above Q another way - My reading of 301 (g) indicates that 5 year presence in US is required but not necessarily all as a citizen. Any precedent of known case law related to this ?

Thank you!

 

[Jackolantern]

The 5 years of presence includes any status -- citizen, green card, and before the green card.

However, note that the embassy can be very nitpicking about the proof of those years, often ignoring or reducing some years, saying that you could have been outside the US for a large portion of the time. So for example, if you present your employment records and you were a software developer, they could say that you spent half the time in India, since that kind of job can be done nearly anywhere. Or if you present university transcripts to show that you were studying at a US university for 4 years, and you didn't study in the summer breaks, they might count only 8 or 9 months per year because you could have been overseas in the summers.

So you might have to present 8 or 10 years of proof to get them to acknowledge 5 years. Start gathering your evidence from now, and if possible try to get employment letters to state that you didn't work abroad for them (or if you actually worked abroad, have them state what were the approximate dates).

Once your spouse has moved back to India, remember to send a letter to USCIS to withdraw the I-130 and/or I-485. Otherwise it could be left hanging around in limbo for years and create trouble if/when she's applying for a tourist visa in the future. Note that if both the I-130 and I-485 were filed, the I-130 withdrawal letter should be signed by you and the I-485 withdrawal letter signed by her. Include copies of the I-130 approval or receipt notice and I-485 receipt notice. If she ever applies for a tourist visa, the I-485 withdrawal will improve her chances of approval.