Under US immigration law, a child born out of wedlock to an American parent outside the US, can derive “instant” US citizenship from his US citizen mother or father, provided certain conditions are met.
The 2nd Circuit Court of Appeals recently ruled that an out-of-wedlock child’s Constitutional equal protection rights to derive US citizenship at birth are violated when the law has much tougher requirements for children of US citizen fathers than the requirements for children of US citizen mothers.
If the child’s mother is a US citizen at the time of the child’s birth, the mother must have lived in the US (or one of its outlying possessions, such as the Philippines before 1946) for at least one year at some point before the child’s birth.
However, if the child’s father is a US citizen at the time of the child’s birth, the father must have lived in the US (or one of its outlying possessions) prior to the child’s birth, for a total period of 10 years, with at least five of those years occurring after the father’s 14th birthday.
In other words, US citizen unwed mothers only had to live in the US for one year at any point in their life before their child’s birth, whereas US citizen fathers had to live in the US for at least 10 years, and at least up to the father’s 19th birthday.
Therefore, no 18-year-old US citizen father could ever pass US citizenship to his out -of-wedlock child.
In that appellate case, the person’s father lived in Puerto Rico ( a US possession) up until 20 days before the father’s 19th birthday, at which time the father moved to the Dominican Republic, where the person was born. Therefore, the father was 20 days short of living in a US possession for at least five years after this 14th birthday.The child of the US citizen father was put in US removal proceedings, but claimed he derived US citizenship at birth through his father, by applying the one-year physical presence requirement applicable to unwed US citizen mothers. The more stringent requirements applicable to unwed citizen fathers violated the constitutional guarantee of equal protection, in that it treated out of wedlock children of US citizen fathers different from out of wedlock children of US citizen mothers. The Court of Appeals agreed, and held the person derived US citizenship at birth through his father, by applying the same standard that applies to unwed mothers (being physically present in the US for only one year).
Many children born out of wedlock to US citizen fathers in the Philippines have had their claim to US citizenship rejected because the father may not have lived in the US or US possession for the time period in effect at the time they were born.
However, if the US citizen father meets the one year rule, this case would help those children in their quest for US citizenship. If the length of time their father lived in the US (prior to their birth) was the only issue.
The length of stay requirement has been changed several times over the years. As a result, the 10 year rule may not apply to someone born on a different date.
If the situation set forth in the Second Circuit Court of Appeals case applies to you, you may want to seek the advice of an attorney, who can evaluate your situation.
However, there are several other requirements that must also be fulfilled for a person to qualify for US citizenship, even if their US citizen father had lived in the US for the required period prior to their birth.
These requirements include where the child is living, the father acknowledging/legitimating the child, having signed or agreed to provide for the child’s care and support, etc.
At least this case provides new hope to out-of-wedlock children, whose fathers are US citizens.
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Author’s email: wolff2000@earthlink.net
