Citizenship Conundrums

It may surprise readers to learn that one of the trickiest legal issues for the immigration attorney is determining when a person is a U.S. citizen. Some cases are easy: A person born inside the United States is a citizen of the United States. For many others, though, confusion reigns.

Consider this surprisingly common scenario: A child is born in Germany in 1975 to a U.S. citizen father and a German mother. The parents are not married. Soon after the birth of the child, the U.S. citizen parent returns to the United States and the child loses contact with her father. Was this child a U.S. citizen at birth? One important fact in determining the citizenship of the child is how long the father lived in the United States prior to the birth of the child. If the issue of citizenship arises after two or three decades, how does the child prove her citizenship? 

Or: A person immigrates to the United States as a lawful permanent resident with her parents in 1980. The mother becomes a naturalized U.S. citizen in 1986, but the father does not become a citizen until 1989. Several seemingly minor factors affect whether the child is a citizen: The age of the child when the dad naturalizes; whether the parents are married; and, if the parents are not married, which parent has legal custody of the child.

To make it worse, Congress tinkers with the law every few years, so a person’s citizenship also depends on changes in the law over time. Thus, a person born in 1975 might not be a citizen while someone born in the exact same circumstances in 2002 may be a U.S. citizen.

So, if are having trouble figuring out your status, you are not alone. Careful and patient examination of the law is required to determine the correct answer to the critical question of citizenship.

Postscript: A common error I hear is the use of the term “citizen” when someone means “resident.” I most frequently hear this error coming from the lips of native-born U.S. citizens saying something to the effect of: “I want to help my friend become a citizen.”

A person who is allowed to immigrate to the United States and who intends to permanently live in the U.S. may be granted “lawful permanent resident” status. This person remains a citizen of her home country who is allowed to live and work in the United States. After living in the U.S. for a certain length of time, that person can apply to be a U.S. citizen through a process called “naturalization.” A person cannot normally apply directly for citizenship without first being a lawful permanent resident for a number of years. (As with many facets of the law, there are some limited exceptions to this rule, in particular: permanent resident children under the age of 18 whose parents become citizens; and certain active duty military members).