[tufa4311]

I have been doing some in-depth research, and consulting with a number of attorneys, regarding my potential claim to Derivative Citizenship.

I believe I have broken the issue down to its "bare bones" and am now in the process of conclusively determining if I meet the qualifications for Derivative Citizenship through the naturalization of one parent (my father). For example, from my research I feel confident that I meet the qualifications set out in Chart C (attached) based on the "date of the last act" (dates 10/05/78 - 02/26-01).

Breaking down Chart C, Date of last act 10/05/78 - 02/26-01:

a) only one parent (father) naturalized and my parents became legally separated during this time frame. One tricky part was the "naturalizing parent must have custody"--as I'm sure you are aware there is a gray area regarding the definition of custody i.e. the difference between "legal custody", "joint custody"; "physical custody". My parents separation agreement does not specifically use the word "custody" at any point, but rather it notes that "...the husband shall have regular and liberal residential times with the children.." and continues to break down the amount of time my father has with my sister and I during the week and weekends as well as noting that the specific times "shall be arranged in advance between the husband and wife..." etc. From my research I believe one U.S. circuit court upheld "joint custody" to equal "physical legal custody" while another specifically ruled that "joint custody" did not meet the "physical legal custody" requirement. I personally feel, based on my research, that my parents had "legal custody" and this satisfies the "physical legal custody" requirement.

In addition, I was lead to and found Passport Bulletin 96-18 (attached) that specifies the interpretation of "Legal Custody" noting: "In cases where the divorce or separation decree does not specify who has custody, the child can be documented as a citizen under Section 321(a)(3) provided all other condition are met. Section 321 does not require "sole" or "exclusive legal custody". If the parents have a joint custody decree, then both parents have legal custody. Thus the naturalization of either parent would be sufficient..."

Based on my interpretation of this U.S Dept. of State Passport Bulletin I believe the facts of my situation satisfy the requirements for custody.

c) my father was naturalized before my 18th birthday

d) I was lawfully admitted for permanent residence before my 18th birthday (I received my Green Card at 12 yrs old) (no, I don't believe I still am a LPR based on the fact that I have my Green Card as I have lived in Canada for the last 15 yrs approx, got married, divorced, bought a house, and thus "effectively" abandoned my LPR)

e) I was unmarried while I was under 18 and am unmarried now (although I have married and divorced since)

f) I am not adopted

As you can see I left out: b) in the case of a child who was illegitimate at birth , the child must NOT be legitimated. Next to the custody issue this has been a hurdle. My parents were NOT married when I was born, they married 3 years later. Although ever since I was 3, until they divorced, I lived with both my parents as a family and have had a blood test proving paternity. While it states in requirement B that the child must NOT be legitimated I believe legitimation is defined by the laws of my fathers "domicile" at the time of my birth. My research in this area is inclusive but I have found evidence that legitimation can be retroactive based on the father's domicile laws once the parents marry and there is no doubt of the child's paternity.

I am a Canadian citizen by birth and am currently in the U.S. as a visitor and am in-status. I was let in with an I-94 for only 2 weeks and have stayed beyond 2 weeks BUT applied for an I-539 application for extension BEFORE my I-94 expired thus will remain in-status until the I-539 extension decision. As well, I am here visiting my girlfriend (who was my high school sweetheart) and plan to marry her and stay in the U.S.

My current interest is this: based on my claim to derivative citizenship I would like to apply for a U.S. Passport while still in the U.S. as a visitor and while I am still in-status due to my I-539 application being in process. I am in the process of acquiring the required documentation for the passport application (i.e. my birth certificate, my fathers original certificate of naturalization, my parents divorce decree, etc) and have questions on how the passport application process may go. I obviously am not the "standard" U.S. passport applicant. I do not have a certificate of naturalization, I have never had a U.S passport, I have a green card that is for all intents and purposes "abandoned", and I am in the U.S. on a non-immigrant visa where my I-94 expired but I applied for an I-539 extension before the I-94 expiration took place.

How will this passport application go? (I know all about how to apply for a passport and what documents I need but have no idea about how this would work in the "real world")

Do I truly have a claim to U.S. derivative citizenship?

[ScottGem]

After reviewing your research I do believe you have a good chance of qualifying. However, you have a complex set of circumstances here so there are no guarantees. Why not just apply and see what the ruling is?

If your request is denied, then I would consult an Immigration Law attorney to help you.

P.S. Your other post was removed because a) it was in response to a 2 year old thread and b) it insulted other members in violation of your rules.

[tufa4311]

Hi ScottGem, thanks for your reply. I am basically at the point where all I can do is apply for the passport and see what happens, so I guess I'll be doing that.

Regarding the removal of my "other" post: not sure why it would be insulting. I do not feel it was derogatory in nature, although it may have been a bit rough. The person asking the question was looking for a sincere and thought out response. A response that he may have used to determine if he was allowed to stay in this country. Not a small issue by any means. If Ask Me is a place where one can come for real answers then anyone who responds should provide a thought-out and researched response. Otherwise, what is the point of this site? Regaridng your first reason, that it was a 2 year old post: this type of immigration route can take a long time, I have been at it for over a year so there is a real chance that this person could also still be at it. I would have hoped that you simply would have deleted what you personally felt was "insulting", as you termed it, but left the response that could have helped your "members". As well, even if this particular member may not have needed it, others looking for answers could have seen the post and my research would have helped them. If you are truly interested in helping people I would ask that you balance my "punishment" against the help my response could give other members.

[tufa4311]

In case ScottGem does not feel that the help I provided out balanced my punishment, here are the requirements for Derivative Citizenship. It is a URL link to a pdf file that is clean: http://www.corporateprobono.org/arch...source1343.pdf

For those untrusting on URL links: simply Google "chart c derivative citizenship" and it will be your fist hit.

[tufa4311]

ScottGem, I see that you are a computer expert. I was more interested in an Immigration expert answering my question. What is the chance of that?

[ScottGem]

First, we have a policy here of NOT reviving older threads. So your second attempt was also removed. This was not a "punishment". It is simply a moderator cleaning up the site. Second your initial post WAS derogatory towards the previous posters.

Finally, we do have an Immigration Expert who frequents this site. But this is a volunteer site and people log in to check for questions when they have time. Even though I am listed as Computer Expert, I do have a broad range of knowledge in several disciplines.

[tufa4311]

Hello all, if an Immigration Expert or someone with personal experience or knowledge in the specific immigration issue reads this post I would appreciate any feedback.

[lawanwadee]

You must file N-600 first. Without Certificate of Naturalization, you won't be able to obtain US passport.

[tufa4311]

Hi lawanwadee,

Actually, that is not correct. I am making a claim to U.S. derivative citizenship via my father (as I would have gained citizenship through my father before I turned 18). Thus, I will be having HIS Cirtificate of Natualization, my old Green card, my birth certificate which proves he is my father, parents divorce decree, etc. Any comments?

[ScottGem]

I'm going to comment, because after reading the instructions for the N-600, I believe lawanwadee is exactly correct. You need a certificate of citizenship to obtain a passport. It doesn't matter how you believe you are entitled to citizenship, you have to prove it get the passport. Since you apparently do not have any other documentation necessary to obtain a passport (US issued birth certificate, naturalization papers, etc.) then you have to obtain that certificate first.

The documentation you describe should, when filed with the N-600, get you the certificate and then you can use that apply for the passport.

[tufa4311]

Hi ScottGem, thanks for the reply. Please review this official USCIS document currently on the USCIS website: http://www.uscis.gov/files/article/A4eng.pdf

As you can see, on the last page, under the heading question "How do I apply to have my citizenship recognized" it notes 2 options. As it says in the first options: "You can apply for a U.S Passport. A passport is evidence of citizenship". The second option is filing for the N-600, and even the USCIS says here "you may find applying for a passport to be more convenient becuase it also serves as a travel document and could be a faster process"

Comments?

[tufa4311]

Hi again guys, still dealing with the previous post issue. In the USCIS website doc: http://www.uscis.gov/files/article/A4eng.pdf
It also says: "If ONE of your parents naturalized after Feb. 27, 2001 and you were a permanent resident...." etc. This is why I do not need a certificate of naturalization to apply for a passport, but I do need my father's certificate because he is the parent that natuarilzed, and he is who I am claiming citizenship through. Don't get me wrong, one definitely needs a certificate to apply for a U.S Passport, but if that person is claiming citizenship via the parent then the parents certificate is the one that is needed.

[ScottGem]

Yes. A passport is proof of US citizenship for use in traveling outside the US. But before you can get a passport you have to prove citizenship. I believe the section you refer to is for proving citizenship for travel purposes and assumes you have the documentation to get a passport. Since you don't, you have to go through the N-600.

Since you seem to be unsatisfied with the answers you are getting, why don't you just stroll into an INS office and sit down with an agent?

[lawanwadee]

To obtain US passport, if you're born in US, you need to submit your birth certificate, if you're naturalized, you need to submit certificate of naturalization (which can be obtained by filing N-600).

Do not get confused... N-400 and N-600 are different.

[tufa4311]

Not unsatisfied Scott, this is a very complicated process and what I'm interested in is debate. Yes, the "law" is the law, but what really matters is not what the laws says, but rather its interpretation. I am trying to use all the avenues available. I've had many, many meetings with several immigration lawyers and even they differ on their interpretation. As well, I try site like this to get a "real world" view i.e. someone who has applied for a passport under the same circumstances as mine-I know there is another person out there! :)

Regarding your INS office: at this point I will not be messing with the INS (or ICE or whatever they are called now). I will be dealing with the State Department as they are the ones who deal with Passports. Just trying to do as much research as possible before I do my passport application in person at a region passport office.

[tufa4311]

Yes, N-600, definitely, just a type-o

[ScottGem]

I think you are making a fairly simple process more complicated. I agree with lawanadee. You need to go through the N-600 to get proof of citizenship, that you can use to get your passport.

[tufa4311]

Check out the qualifications for derivative citizenship... simple? I think not: http://www.corporateprobono.org/arch...source1343.pdf

Anyway, thanks for all your feedback!

[tufa4311]

Hi All,

This should be my last post on this issue. After a long wait, I applied in-person for my US Passport on Oct. 22 2009, I received a call today from Passport Services. My US Passport application has been approved and my passport is being fed-ex'd to me by tomorrow morning. A few points I have learned, and the State Department has confirmed for my by approving my passport application (please note, these facts are not related to the CCA, these only relate to a person that was over 18 years of age when the CCA passed (February 27, 2001):

-I was born in Canada, I do not have a US Certificate of Citizenship
-my father became a naturalized US citizen before I was 18
-my mother never became a naturalized US citizen, only got her green card
-I got my green card before I was 18
-my parents legally separated and divorced before I was 18 AND they got JOINT custody (my father did not get SOLE custody)

And that's it, I meet the requirements of derivative citizenship and the State Dept has approved my US Passport which also proves I am a US Citizen. Laws regarding naturalization are in the US State Departments Foreign Affairs Manual (FAM). The FAM is what is used by the State Dept. to confirm if one meets the requirements for a US Passport (and by extension of US Citizenship). The relevant facts for Former INA Section 321 are on page 21: http://www.state.gov/documents/organization/86759.pdf

Two important facts to reiterate:

1. if one is claiming naturalization through their parents this person does not need a certificate of citizenship to apply for a US Passport. As long as you meet the requirements for derivative citizenship you are a US citizen-the important part is to that you need proof of this, which is either a certificate of citizenship or a US Passport. The US Passport is much easier to apply for. Also, please note: The US State Department handles US Passport applications. The USCIS handles certificate of citizenship applications. Two complete different area of govt with slight different requirements.

2. If your parents remained married until you were 18 BOTH of them need to be US Citizens for you to derive it yourself. If your parents legally separated and/or divorced before you were 18 and only one of your parents became a USC before you were 18 then that USC parent must have been legally awarded at least JOINT custody of you-even though you will here this everywhere SOLE custody is not required.

Lastly, all these facts have been confirmed by the US State Department as they have approved my US Passport. BUT, remember, the USCIS (immigration) has slight different rules for deriving citizenship through ones parents and filing for a certificate of naturalization could end up getting you denied the certificate.

It does not make much sense but lets all remember we are dealing with the govt here. Different departments in the Govt have different rules and indeed sometimes are contradictory. My suggestion is that if you have any doubt about your derivative citizenship from you parent or parents file for the Us Passport first (but remember, you will need the certificate of citizenship of your USC parent)

If anyone has any questions let me know. I have learned a lot in this process and whatever anyone's interpretation of the law is on this site, or any other site, the US State Department is the one that matters and I now have my US Passport approved.

[ScottGem]

Great, glad to hear it. But what forms did you fill out to apply for derivative citizenship. I'm curious because that was the basis of your disagreement with our advice (by the way we did advise applying in person).