Month: March 2014

The United States follows the ‘jus soli’ principle in citizenship. A person born in the United States is automatically a U.S. citizen. However, there are instances where one is able to derive US citizenship through the parents. Once a person is granted U.S. citizenship status by the issuance of a Consular Report of Birth Abroad (CRBA) or a U.S. passport, all the rights and privileges of being a U.S. citizen attaches. But what happens if it is subsequently discovered by the State Department that the U. S. citizenship should not have been granted in the first place? Will the citizenship be revoked?

Henry was born in 1980. His father, is a naturalized U.S. citizen and his mother was a resident and citizen of the Philippines. Henry’s mother gave birth to him in the Philippines where his US citizen dad was temporarily assigned to work. Six years  after Henry’s birth, an application for a consular report of birth abroad (CRBA) was filed with the U.S. Embassy in Manila. The CRBA application was approved and Henry was also issued a U.S. passport.

When Henry was 10 years old, his grandparents brought him to the United States. He attended middle and high school in New York. He also graduated college in the US started working for a financial firm. In one of his visits in Manila, he was introduced to Sofia who later became his spouse. Sofia comes from a prominent family and has no interest in moving to the United States. Henry and Sofia were blessed with a son who was born in 2012. Since Henry is a U.S. citizen, he applied for a consular report of birth abroad for his son. In reviewing his child’s CRBA application, the examiners also reviewed the U.S. citizenship status of Henry as well. It was then discovered that Henry was erroneously granted U.S. citizenship. Thereafter, Henry’s own CRBA was cancelled and his U.S. passport was revoked.

The State Department discovered that Henry’s father never had the requisite 10 years physical presence in the United States before the birth of Henry. Henry’s dad only accumulated 7 years of physical presence in the United States and this fact was revealed in the CRBA application for Henry. There was no fraud or misrepresentation on the part of Henry’s dad. The State Department admitted that it was their error that resulted in the improper issuance of the CRBA and U.S. passport to Henry.

Transmitting Citizenship

Generally, a child born outside the United States where one or both parents are U.S. citizens may acquire U.S. citizenship at birth as long as certain eligibility requirements are met. One of the important factors to prove is the residence of the U.S. citizen parent prior to the birth of the child. The U.S. citizen parent must reside or be physically present in the United States for certain minimum time periods prior to the birth of the child in order to “transmit” citizenship. These transmission time periods are enacted by law and determining eligibility is based on the law that is in effect at the time of the child’s birth.

For those who were born before November 14, 1986, the U.S. physical presence requirement is at least 10 years. While those who were born after November 14, 1986, physical presence requirement for the parents is for a total of only five years.

The State Department officials examining the CRBA of Henry at that time applied the wrong law in approving Henry’s U.S. citizenship.  Acquisition of birth abroad is governed by the law at the time of the birth of the child claiming U.S. citizenship. In the case of Henry, his US citizen parent needed to have the requisite 10 years of physical presence in order that US citizenship be transmitted to him at the time of his birth in 1980. Since the law at the time of birth (and not the law at the time of application) prevails, the CRBA of Henry can rightfully be revoked as being erroneously issued. Henry’s US citizen father did not have the requisite 10 years physical presence requirement in order to transmit citizenship to his child.  

Lawsuit to Return Citizenship Documents

Now that Henry lost his U.S. citizenship, what can he do to gain it back? Henry was prejudiced by undue delay in discovering the error. If he was not initially granted the CRBA and the U.S. passport, Henry could have had the option of being naturalized as a derivative citizen before he turned 18 years old. Or, his U.S. citizen father could also have petitioned him before he turned 21 years old. All these options, which he could have taken advantaged of, are now gone. It remains a question on how the U.S. government could make it up to him through other lawful means. A private bill may also be passed into law making him a U.S. citizen. This maybe what it takes to correct the error.

The facts of Henry’s case above  is similar to the actual case of Hizam v. Kerry No-12-3810 decided on March 12, 2014 by the United States Court of Appeals, Second Circuit. In that case, Hizam, a national of Yemen, was revoked his U.S. citizenship in a similar manner as that of Henry. He filed a lawsuit before the federal courts asking that he be declared a U.S. citizen. There is no question that the wrong law was applied by the US State Department in approving Hizam’s citizenship. Since this is an error committed by the State Department, the U.S. government manifested that it will continue to support other lawful means to provide relief to Hizam, including a private bill in Congress.

It is sad that it may need a Congressional act (private bill) to correct this error. That is not always an easy road to take. These days, nothing is really certain. What appears to be …. may, in fact, not be.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)

One of the more promising provisions of the proposed immigration reform is its attempt to improve U.S. family-sponsored petitions by eliminating current visa backlogs. Filipino nationals, who happen to be adult children of U.S. citizens, currently wait almost twenty years before they are called for their visa interviews.  There are also cases where the children being petitioned patiently wait for their visa’s priority date just to receive a denial from the consular officer. Why are some cases being denied for visas despite the lengthy wait? How can one prevent this from happening to their petitions?

Corazon was a green card holder when she petitioned her three adult children. At the time she filed the petition, her children were unmarried. Her youngest daughter, Claire, had a child from a relationship she had with her long time fiancé.  

Five years after she petitioned her children, Corazon filed for naturalization. As soon as she took her oath as a U.S. citizen, she notified the National Visa Center of her change in status but made it clear that she  would like the petitions to nevertheless be considered as petitions by green card holders under the second preference. She did this because under the current broken immigration system, petitions by green card holders for their Filipino national adult children are processed faster than petitions by U.S. citizens. Corazon did not want her children’s petitions to be delayed any further so she opted out of the automatic upgrade of the petitions.

As expected, the petitions filed by Corazon were processed after ten years from date of filing. Her two daughters were called for their visa interviews and received their green cards. The third daughter, Claire, however, was declined an interview despite the payment of her immigrant visa. The consular officer said that Claire’s petition was automatically revoked after it was discovered that she married the father of her child. Claire did not reveal this marriage to her mother because the solemnizing officer told her that this marriage was not going to be registered. It turned out that the marriage was duly registered with the civil registrar and is recorded with the National Statistics Office.

Corazon was dismayed by this turn of events. Would this have changed the position of the consular officer had she not opted out of the automatic upgrade and instead continued her petition of Claire as a U.S. Citizen? Could Claire’s visa petition be reconsidered for processing? What is the effect of marriage of an adult child on a visa petition by a U.S. citizen?

Updating Visa Petitions

Since it takes several years to process visa petitions of adult children, it is not unusual for circumstances of either the petitioner or the beneficiary, or both, to change as well. A petitioner’s immigration status may change from green card holder to U.S. citizen; a petitioner may even die in the meantime while an application is pending. Changes on beneficiary circumstances include changes in marital status, aging out, and commission of certain acts constituting offenses.

For every change mentioned, there is a corresponding consequence on the petition. For a beneficiary who turns 21 years old while the petition is pending, the visa category changes resulting in a longer wait time. The exception to this is if the Child Status Protection Act applies. In the event of the death of a petitioner, the petition dies with him/her unless the U.S Citizenship and Immigration Services grants humanitarian revalidation.

Change in marital status of the beneficiary is particularly critical if the petitioner filed as a green card holder without becoming naturalized. No matter how long the petition has been pending, such a change in status would result in the automatic termination of the petition. This is the sad fact because green card holders are only allowed, under the current laws, to petition “unmarried” children.

U.S. citizens, however, may petition children even if they are married. Here, petitions are not automatically terminated, their visa category changes to third preference, resulting in a 20 year wait instead of the typical 10, from the date of filing of the petitions before visas are actually processed.

When a petitioner becomes a naturalized U.S. citizen and notifies the National Visa Center about the change, the petition is usually placed in the appropriate visa category. The same is not true for changes in the marital status of the beneficiary. The National Visa Center is not usually notified of this fact. When the petition finally becomes ready for processing after several years of waiting, it is only at this point that the consular officer is made aware of the change, oftentimes with distressing results for both petitioner and beneficiary.

Let us examine what happened to Claire.  Although Corazon, her petitioner, eventually became a U.S. citizen, Claire’s marriage occurred first before the naturalization of her mother. Had she waited until her mother naturalized before getting married, her petition would not have been terminated.

It is difficult to accept, after years of waiting, hoping and praying, that an opportunity to immigrate was lost, due simply to a change in circumstance otherwise typically undergone by most ordinary folk. People meet, fall in love, get married, it is the cycle of life. For Philippine nationals who happen to have pending petitions by parents who have as yet to become naturalized, their situation is different. As if life and finding the person you want to marry is not complicated enough, one has to grapple with the choice of either giving up the dream of immigrating to the United States to better one’s future, or putting one’s life on hold, while the parent tries to become a naturalized citizen, before one can marry the person one loves. It is this untenable situation that advocates seek to address in their proposal to do away with the visa backlogs. Let us hope reason prevails and a broken immigration system is reformed to one that truly reflects this nation’s ideals.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)