Imagine this scenario: you came to the USA as a child with your family, and everyone had a green card. In your adolescence, your parents argue and divorce. Your mother gets custody of you and decides to return to Brazil with you. Before going back, your mother becomes an American citizen. You return to Brazil and find everything very different but adapt to the new lifestyle. Thirty years pass, and you never try to return to the USA, not even for a visit. One fine day, you decide to hire a law firm specializing in immigration to help you with a tourist visa, but you receive the best news of your life: you don’t need a tourist visa because you are an American citizen! And even better: your daughters, born in Brazil, are American citizens from birth because your citizenship was transmitted to them! This is a real case from our office, which brought us great satisfaction and emotion.
This story demonstrates how complex citizenship and naturalization laws are. In particular, when it comes to acquired or transmitted citizenship, the law applied varies according to each person’s year of birth.
Transmitted citizenship is when your parents (or one of your parents) are American citizens before you are born. The requirements to know if you can be an American citizen, in this case, depend on factors such as your year of birth; whether your parents were married when you were born; whether your American mother or father lived in the United States for a certain period and what age they were when they lived here, etc. In other words, there is a complex analysis of factors that must be taken into account in each case.
The same thing happens in the case of citizenship automatically acquired by operation of law. The most typical case is when the family is in the United States with a green card, and one of the parents becomes a citizen. In this case, the child under 18 years old automatically becomes a citizen by operation of law. This happens because, according to the most recent laws (i.e., for children born on or after February 27, 2001), when these three factors occur, regardless of the order, the child becomes an American citizen: 1) at least one of the parents is an American citizen, by birth or naturalization; 2) the child lives with the American mother or father, who has legal custody of the child; 3) the child is in the USA with permanent residence. So, for example, if an American parent gains custody of a child born abroad and applies for a green card for this child, the child processes the entire residence process through the consulate and enters the United States with an immigrant visa upon passing through immigration with this visa, the child automatically becomes an American citizen! In the case of acquired citizenship, the laws also vary greatly depending on the child’s year of birth.
To know for sure if a person is an American citizen, an analysis by an immigration lawyer of the unique factors of each case is necessary. Note that the American government, including the consulate or even ICE, places the burden of proof on the applicant. Therefore, every year, people are detained by ICE or deported, even being American citizens, for not knowing about their citizenship. Neither the consulate nor a government agency will be proactive and inform you about possible citizenship. It is up to each person to find out if they have American citizenship.
