Automatic Citizenship

By: Jean S. Tinsay, Esq.

Almost everyone who is in the United States chasing their American dream aspires to become a naturalized U.S. citizen. With citizenship comes certain benefits, one of which is that you no longer need to fear that you may be subject to deportation. Thus, as soon as one is eligible and meet all the requirements, it is advisable to file a naturalization application. There is, however, a class of foreign-born children who automatically become U.S. citizens without the need for filing a naturalization application.

The Child Citizenship Act of 2000 which went into effect on February 27, 2001 provides for automatic citizenship for certain foreign-born children of U.S. citizens. To be eligible, a child must meet the following requirements:
1. The child must have at least one United States citizen parent (by birth or naturalization);
2. The child is under 18 years old;
3. The child has been admitted to the United States as a lawful permanent resident or has adjusted status;
4. The child is currently residing permanently in the United States in the legal and physical custody of the U.S. citizen parent.

The law also applies to adopted children provided they meet the above-requirements. As to the legal custody requirement, the USCIS presumes that the U.S. citizen parent has "legal custody" in cases where the child is a legitimate or legitimated child. For those children who meet the requirements, citizenship is acquired automatically by operation of law on the day of admission to the United States as an immigrant or on the day the last condition for acquiring citizenship is satisfied. There is no need to apply for naturalization. However, if the child wants evidence of his U.S. citizenship he can either apply for a U.S. passport with the Department of State or for a Certificate of Citizenship with the USCIS.

To illustrate, let us take the case of 25 year old Mateo who was born in the Philippines in 1985. At the time of his birth, his parents were not married. Subsequent to his birth, Mateo's father who was a beneficiary of a family-based petition filed by Mateo's grandparent immigrated to the United States. A few years later, his father returned to the Philippines, married his mother and immediately filed an immigrant petition for Mateo and the mother. In 1994 Mateo's father became a naturalized U.S. citizen. When, Mateo was 11 years old he came to the United States as a lawful permanent resident with his mother. During the Labor Day weekend, Mateo had one drink too many at his cousin's house. While driving erratically on his way home, he noticed a police car following him. In his fear of getting caught drinking and driving he tried to elude the police before he was finally apprehended. Mateo now faces criminal charges of DUI and evading the police. Mateo is worried that he may be deported due to the criminal charges filed against him.

Fortunately, for Mateo he is already a U.S. citizen and thus cannot be deported from the United States. Mateo automatically became a U.S. citizen when the Child Citizenship Act of 2000 took effect in February 27, 2001. At that time, he met all the requirements for automatic citizenship, he was admitted to the United States as a permanent resident, he had one U.S. citizen parent, he resided in the United States in the physical and legal custody of his parents and he was under the age of 18 when the law took effect.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) - a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max's Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;