Immigration Status

U.S. Permanent Resident A lawful permanent resident is a foreign national who has been granted the privilege of permanently living and working in the United States. A Lawful Permanent Resident is commonly known as a "Green Card Holder".

US citizenship vs. US nationality US law makes a distinction between "citizenship" and "nationality." All US citizens are also US nationals; however, some US nationals are not US citizens. The term "national of the United States" is defined in the INA as "a person who, though not a citizen of the United States, owes permanent allegiance to the United States". The INA says (more or less) that a person born in an "outlying possession" of the US -- or a foreign-born child of such a person -- is a US national, but not a US citizen. At the present time, the only "outlying possessions" of the US, as defined in 8 USC § 1101(a)(29), are American Samoa and Swains Island (in the South Pacific). Note that people born in the following places are defined in the INA to be US citizens: Puerto Rico; the US Virgin Islands; and Guam.

Citizenship by birth (INA § 301, 8 USC § 1401) The US law on citizenship by birth incorporates two traditional legal principles: • •

ius soli ("right of the soil"), under which citizenship results from being born in the US, and ius sanguinis ("right of the blood"), under which citizenship results from having an American parent or parents.

Each of these principles is subject to certain restrictions. For example, children born in the US to foreign diplomats are not US citizens. Also, children born abroad to parents who have US citizenship but have never lived in the US are not US citizens. Many dual-citizenship situations result from the interaction of two countries' implementations of ius soli and/or ius sanguinis in their respective citizenship laws. For example, a child might acquire the citizenship of the country in which he was born (via ius soli), and also the citizenship of his parents' country (via ius sanguinis), and as a result start life as a dual citizen. The INA defines the following classes of people as having US citizenship from the time of birth:

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anyone born in the US and subject to its jurisdiction (basically meaning anyone other than a child of foreign government representatives with diplomatic immunity); Indians and other aboriginal people born in the US; anyone born outside the US, if at least one parent is a US citizen and certain residency or physical presence requirements were fulfilled by the citizen parent or parents prior to the child's birth; anyone who is found in the US while under five years of age, whose parents cannot be identified, and who is not shown prior to his or her 21st birthday to have been born outside the US.

The only part of this section that is mandated by the 14th Amendment is the part giving citizenship to anyone born in the US and subject to its jurisdiction. The Supreme Court, in Rogers v. Bellei, held that the citizenship status of a person born outside the US to an American parent is not constitutionally protected. Note that children born in the US to tourists -- or even to illegal aliens -- are US citizens by birth. Some politicians have proposed changing the law to deny citizenship to US-born children unless at least one parent is a US citizen or permanent resident alien ("green card" holder). However, since such children are guaranteed citizenship by the 14th Amendment to the Constitution (see the Supreme Court's rulings in U.S. v. Wong Kim Ark and Afroyim v. Rusk), it is unlikely that this part of the INA could be successfully changed without another amendment to the Constitution. Even attempts to deny citizenship to such children by redefining them as not being subject to US jurisdiction (as proposed, for instance, by various bills in the current Congress) would probably have a rough time in the courts on account of the Wong Kim Ark precedent. Under certain conditions, children born outside the US may have US citizenship by birth. This depends on whether one or both parents have US citizenship, how long (if at all) the American parent(s) lived in the US prior to the child's birth, and whether the parents were married to each other or not. The rules have changed several times during the 20th century (mostly in a more liberal direction), so the exact date of one's birth can also be important when determining a claim to citizenship by descent. Under the current law, if both parents are US citizens and are married, then the child is a US citizen if either parent had a "residence" in the US at any time in his or her life prior to the child's birth. There is no specific minimum period of time in the law for how long a parent must have been in the US in order for his/her status to be accepted as having been "residence" in the US. If one parent is a US citizen, and the other is not, and the parents are married, then the current law says the child is a US citizen if the American parent was physically present in the US for one or more periods of time totaling at least five years, at some time or times in his or her life prior to (but not necessarily immediately prior to) the child's birth. Additionally, at least two years out the required five years of physical presence must have taken place after the parent's 14th birthday; thus, for example, a parent who was born and

grew up in the US, but who left before reaching age 16 and never returned, doesn't meet the requirement. Note that physical presence does not require residence in the US. Time spent on vacation in the US may be counted toward the five-year total. If a non-US-born child's parents are not married, the child's claim to US citizenship depends on whether the American parent is the mother or the father. Section 309 of the INA [8 USC § 1409] grants US citizenship at birth to an "illegitimate" child if his/her American mother had previously spent at least one continuous full year in the US. If the child's American parent is his/her father, however, the child has US citizenship at birth only if the father's paternity is formally established and the father agrees in writing to support the child financially. This sex-based disparity was upheld by the Supreme Court in 2001 (Nguyen v. INS). It is important to note that a foreign-born child whose parents have fulfilled the residency or physical presence requirements is a US citizen by birth. This citizenship is automatic; it is not dependent on the parents' registering the child with a US consulate (though such registration is strongly encouraged) or getting the child a US passport.

Citizenship by naturalization (INA § 337, 8 USC § 1448) A description of the US naturalization oath is given in Section 337(a) of the INA [8 USC § 1448(a)]. Of particular relevance to the dual citizenship issue is that, as part of the oath, a new citizen must pledge "to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen." In practice, it is unclear what if any true legal significance this statement has any more. The US does not require a new citizen to take any formal steps to renounce his old citizenship before officials of the "old country"; and when the other country continues to claim a naturalized US citizen as one of its own, current US policy recognizes that such a person may have to use a passport from the other country in order to visit there, and such an action does not put the person's US citizenship in jeopardy. At one time, the US took the position that anyone who wished to renounce his prior citizenship in connection with US naturalization had an inherent, unquestionable right to do so. Well into the 19th century, many countries had no provisions at all for renouncing citizenship and did not even acknowledge that their citizens or subjects had any such right. This is, no doubt, why the renunciatory clause in the US naturalization oath is not linked to any additional requirement to give up one's old citizenship in accordance with another country's laws; as far as the US was concerned, the renunciatory statement in its own naturalization oath was sufficient, and all other countries had an obligation to respect it. In recent years, the State Department has apparently decided to take a more pragmatic and realistic stance on this issue.

Loss of citizenship (INA § 349, 8 USC § 1481) Section 349 of the INA [8 USC § 1481] specifies several conditions under which US citizenship may be lost. These include: • • • • •

becoming a naturalized citizen of another country, or declaring allegiance to another country, after reaching age 18; serving as an officer in a foreign country's military service, or serving in the armed forces of a country which is engaged in hostilities against the US; working for a foreign government (e.g., in political office or as a civil servant); formally renouncing one's US citizenship before duly authorized US officials; or committing treason against, or attempting or conspiring to overthrow the government of, the US.

The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship; however, the Supreme Court overturned this concept in the Afroyim and Terrazas cases, and Congress amended the law in 1986 to require that loss of citizenship would result only when a potentially "expatriating" (citizenship-losing) action was performed voluntarily and "with the intention of relinquishing United States nationality".

CITIZENSHIP REQUIREMENTS · You have been a lawful permanent resident for at least four years and nine months or you are a lawful permanent resident for at least two years and nine months AND have been married to a U.S. citizen for that time period AND continue to be married to that U.S. citizen. · You have "good moral character" - last five (three) years of taxes have been properly paid, males between 18-26 years old have registered for the Selective Service, no criminal record, paid child support, etc. · You must have been physically present in the U.S.A. for at least 30 months (2½ years) of the five years or 18 months (1½ years) of the three years you have resided in the U.S. and you have not left the U.S.A. for more than six months on any one trip within the last five years. · You must be able to speak, read, write and understand basic English unless you are at least fifty (50) years of age and have been a lawful permanent resident for at least twenty (20) years, or you are at least fifty-five (55) years of age and have been a lawful permanent resident for at least fifteen (15) years, or you have a permanent physical or developmental disability or mental impairment making it impossible for you to meet the

English language requirement. · You must be able to demonstrate knowledge and understanding of the fundamentals of U.S. history and principles of government unless you have a permanent physical or developmental disability or mental impairment making it impossible for you to meet the civics requirement; · You must be at least eighteen (18) years of age.

Asylum/ Refugee Status Asylum may be granted to people who are already in the United States and are unable or unwilling to return their home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. If you are granted asylum, you will be allowed to live and work in the United States. You also will be able to apply for permanent resident status one year after you are granted asylum. Asylum status and refugee status are closely related. They differ only in the place where a person asks for the status asylum is asked for in the United States; refugee status is asked for outside of the United States. However, all people who are granted asylum must meet the definition of a refugee. A refugee is defined as a person outside of his or her country of nationality who is unable or unwilling to return because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinions. Under U.S. law, a person who has committed acts of persecution, or has assisted in the commission of persecution in any way, on account of race, religion, nationality, membership in a particular social group, or political opinion, is not eligible for classification as a refugee.