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Can I appeal this horrible decision?

Posted on May 30, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Can I appeal this horrible decision?

Question: I lost at the immigration Court level. Can I appeal?

Answer: Yes, you can appeal. You can appeal it to the Board of Immigration Appeals in Virginia.

Question: When do I appeal and what happens if I don’t appeal on time?

Answer: You must appeal to the BIA within the 30 days after the decision by the Immigration Judge. That means that the Notice of Appeal must be physically at the Board of Immigration Appeals by the deadline. If it is 5 minutes late, it will be rejected and returned. Your appeal will be over and you will likely have a deportation order and be physically deported from the United States. Clearly, it would be in your interest to make sure the Notice of Appeal is timely filed.

Question: What happens if I just found out about doing the appeal and it is due tomorrow and I can’t even have time to send it to Virginia on time?

Answer: There is actually a company in Virginia that you can send the Notice of Appeal up until 10:00 a.m the day that it is due. They will then physically go to the Board of Immigration Appeals and file the Notice of Appeal. It is not cheap, but it saves the appeal at the last minute. It is well worth the price if you are in that unfortunate situation.

Question: Do I have to do the Opening Brief when I send in the Notice of Appeal?

Answer: No. You will get a notice from the BIA as to when it is due. You will have considerable time to have it properly prepared and to develop your arguments and to make your case. Once the Opening Brief is submitted, you will then receive the reply brief from the Government. They will argue as to why the appeal should be denied and why the Government made the correct decision. Afterwards, you will have about 14 days to submit the reasons you believe the reply brief is incorrect and what points need to be made. Afterwards, the BIA will make a decision on your case.

Question: Should I have an attorney help me?

Answer: It would most definitely be in your best interest. Appeals are won and lost on the legal points that are made. They are not won by simply rehashing the facts. If you want any real chance of winning, you should not only hire an attorney, but one that specialized in Immigration Laws, has years of experience doing appeals and knows the immigration laws backwards and forwards.

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The new Electronic Filing System at USCIS

Posted on May 23, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

The NEW Electronic Filing System

Question: I have heard that there is a new electronic filing system at USCIS. Is that true?

Answer: It is called USCIS ELIS.USCIS ELIS is a user-friendly system created to streamline the application process for immigration benefits. It allows immigration benefit seekers and their legal representatives to create an account and file benefit requests online. USCIS ELIS provides more accurate and secure customer service. It also allows USCIS to process cases in a more efficient, consistent and secure environment.

Question: Who will be able to use USCIS ELIS?

Answer: In the initial release, certain applicants can electronically file Form I-539, Application to Extend/Change Nonimmigrant Status. Over time, USCIS ELIS will include more benefit types and increased functions.

Question: Why open a USCIS ELIS account?

Answer: Open an account online that you may use to interact with USCIS; Sign up to receive email notifications and text messages Manage your account preferences and contact information in real time;Manage your interactions with USCIS securely and electronically; Electronically file (e-file) benefit requests from your account;Submit evidence electronically; Use a credit card or bank account (from a U.S. institution) to submit payment; Have an attorney or accredited representative file benefit requests in USCIS ELIS on your behalf; Get detailed help and current case status; File a benefit request with step-by-step help from an online setup assistant; Access online help in the “Tips” and “Help” sections of the setup assistant; and Obtain real-time, detailed case status information.

Question: Who can currently use this ELIS?

Answer: If you are currently a B-1, B-2, F-1, M-1 or M-2 and want to extend your status; If you want to change your status to want to B-1, B-2, F-1, F-2, J-1, J-2, M-1 or M-2 ; or if you want to reinstate your status to F-1, F-2, M-1 or M-2.

Question: What about other types of applications?

Answer: Since this is a new system, USCIS is testing the waters out with these petitions only. As the system becomes more useable, more petitions will be added.

Question: What Should I Know Before Filing?

Answer: Before USCIS can grant your benefit request, you must establish your eligibility. You will be required to answer questions. USCIS will review your answers to determine if you are

eligible. If you must provide additional evidence, USCIS ELIS allows you to scan and upload evidence at the time you initially file your benefit request or in response to a Request for Evidence (RFE). If you have evidence that you believe supports your case, scan and upload it into USCIS ELIS before submitting your request. If you have trouble scanning and uploading documents and evidence after you have electronically submitted your application, you may mail the additional evidence to USCIS. However, mailing documents will add to the time it takes to process your application, so it is strongly encouraged you to scan and upload documents, if possible. If you must mail documents to USCIS, please provide the USCIS ELIS receipt number on the cover page and submit them to:

Vermont Service Center

75 Lower Weldon St.

St Albans, VT 05479

USCIS may deny a benefit request submitted with false documents, misrepresentations of facts, or other fraudulent content. Persons involved in such fraudulent activity may lose the right to file for current and/or future immigration benefits and services. They may also face severe penalties, criminal and/or civil prosecution, fines, and/or imprisonment.

However, the system does appear to finally get into the 21st century and allow and make it possible to begin filing everything electronically.

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Can I get an H-1B finally?

Posted on April 25, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Can I get an H-1B finally?

Question: I have an employer willing to sponsor me. What is a ‘specialty occupation’ and can I get an H-1B?

Answer: The job must meet one of the following criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position. The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree. The employer normally requires a degree or its equivalent for the position. The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Question: How must I qualify for the H-1B?

Answer: For you to qualify to accept a job offer in a specialty occupation you must meet one of the following criteria: Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university. Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation. Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment. Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty. Of course this last option would be used only when there is no B.S degree.

Question: Must I file the Labor Condition Application?

Answer: Yes. The prospective employer must file an approved Form ETA-9035, Labor Condition Application (LCA), with the Form I-129, Petition for a Nonimmigrant Worker.

Question: Is there a limit on H-1B’s per year?

Answer: Yes, there are only 65,000 for regular H-1B’s and 20,000 for advanced degree H-1B’s. U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2013 cap. The agency began accepting these petitions on April 2, 2012.

USCIS has received approximately 17,400 H-1B petitions counting toward the 65,000 cap, and approximately 8,200 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

USCIS will provide regular updates on the processing of FY 2013 H-1B petitions. These updates and helpful filing information can be found at USCIS’s website highlighting the H-1B program. Should USCIS receive the number of petitions needed to meet the cap, it will issue an update advising the public that the FY 2013 H-1B cap has been met as of a certain date, known as the “final receipt date.” The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

If necessary, USCIS may randomly select the number of petitions received on the final receipt date that will be considered for final inclusion within the cap. The agency will reject petitions subject to the cap that are not selected, as well as those received after the final receipt date. Whether a petition is received by the final receipt date will be based on the date USCIS physically receives the properly filed petition, not the date that the petition is postmarked.

Cases for premium processing (faster processing of certain employment-based petitions and applications) of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 9. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the properly filed petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

U.S.businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.

The bottom line is to get your H-1B filed right away so you are included in this years cap.

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The New Waiver Procedure

Posted on April 3, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

What about the new Waiver Law?

Question: I have been married for 12 years to a U.S. Citizen, but have always been afraid to file anything. I heard that I will have to file the Waiver of the 3/10 year bar, but did not want to chance leaving the U.S. What is the current status of the new Waiver regulations?

Answer: U.S. Citizenship and Immigration Services (USCIS) posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register that would reduce the time U.S. citizens are separated from their spouses, children, and parents (i.e. immediate relatives) who must obtain an immigrant visa abroad to become lawful permanent residents of the United States. This rule would allow certain immediate relatives of U.S. citizens to apply for a provisional waiver of the unlawful presence ground of inadmissibility while still in the United States if they can demonstrate that being separated from their U.S. citizen spouse or parent would cause that U.S. citizen relative extreme hardship. The proposed rule will not alter how USCIS determines eligibility for a waiver of inadmissibility or how an individual establishes extreme hardship.

Question: Does this mean it will make it easier to get the Waiver?

Answer: No. Definitely not. Rather, it will change the procedure upon where the Waiver is filed and how it is adjudicated. It is just as hard as before to get the Waiver approved, so you should have it prepared professionally and support it with lots of evidence.

Question: Why is this happening now? What is the purpose of the new regulations on the Waiver of the 3/10 year bar?

Answer: “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this proposed rule will more effectively achieve,” said USCIS Director Alejandro Mayorkas. “The current process can subject U.S. citizens to months or years of separation from family members who are waiting for their cases to be processed overseas. The proposed change will have tremendous impact on families by significantly reducing the time of separation.

USCIS also proposes creating a new form for immediate relatives of U.S. citizens who choose to apply for a provisional unlawful presence waiver. Once in effect, this form would be used for individuals filing an application for a provisional unlawful presence application before he or she departs the United States to complete the immigrant visa process at a U.S. Embassy or consulate abroad. The streamlined process would only apply to immediate relatives who are otherwise eligible for an immigrant visa based on an approved immediate relative petition.

Keep in mind that the form will be different, but the supporting documentation and declaration and evidence will all remain the same. In fact, many times, I suggest getting a hardship evaluation from a qualified psychologist.

Question: Are the regulations in effect?

Answer: The proposed process outlined above is not in effect and is not available until USCIS publishes a final rule with an effective date in the Federal Register. USCIS will consider all public comments on the proposed rule announced before publishing the final rule in the coming months. Individuals at this time should not to submit an application for a provisional unlawful presence waiver, or allow anyone to submit one on their behalf because it will be rejected.

However, the case can be started now and then submitted as soon as the regulations become final.

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How can I get the Green Card through employment without waiting years?

Posted on February 20, 2012 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

How can I get the Green Card through employment without waiting years?

Question: I have a Master’s Degree in Economics and would like to know if there is anyway I can get the Green Card through employment without waiting years.

Answer: There is what is known as the EB-2 category. This is the second employment based preference. It is specifically for persons whom have advanced degrees. In fact, unless you are from China or India, the EB-2 category is current and there is no waiting time. You will save about 5 years of waiting over people with just a B.S. Degree.

Question: What if I have a B.S. Degree and many years of experience? Can I still apply for the EB-2 category?

Answer: If the normal job requires a Master’s Degree and you have at least 5 years of progressive experience in the field, then you can apply for the EB-2 category.

Question: Do I still need an employer to sponsor me?

Answer: Yes. You must still go through the PERM. However, you will go through the Advanced Degree PERM and afterwards the visa number should be current.

Question: What must I do to begin the PERM process?

Answer: The Employer Must Register—Only an employee or owner of the employer entity (not its lawyer or agent) may register to use the Permanent Online System for electronic filing of LC applications (ETA 9089). To register the employer must go to icert.doleta.gov.

Question: Must the employer have an EIN number to file for the PERM?

Answer: Yes, that is required, even if it is a household filing the PERM.

Question: What happens if the employer makes an error on the PERM?

Answer: Errors on the ET 9089 Form could be fatal and the entire application could be denied. Therefore, it is critical that every question be answered and every item be completed or the entire PERM could be denied.

Question: Are there exceptions to having the petition denied if there are errors made?

Answer: If it is considered a harmless error or clerical, it is possible that the entire PERM will not be denied. However, it will be difficult to determine what is clerical and harmless verses what is material.

Question: What if the employer simply does not fill in a question or part of a question?

Answer: Errors of omission can and are fatal to the application, so you want to make sure that nothing is left blank on the ETA-9089.

Question: Must anyone sign the ETA-9089?

Answer: The employer, beneficiary and attorney must all sign the ETA 9089 after it is certified.

Question: Must the employer attest to anything before filing the PERM?

Answer: The employer must attest, under penalty of perjury, to certain matters on the ETA 9089 including that he will pay the prevailing wage, that the position is not vacant due to a labor dispute, that he has sufficient funds to pay the wage and that he will be able to place the beneficiary on the payroll on or before the date he or she enters the U.S.

Question: Are there supporting documents filed with the PERM?

Answer: No. There are no supporting documents filed with the PERM. However, if there is an audit or it is later asked for, then they must be provided.

https://www.uscis.gov/green-card

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H-1B Cap is reached

Posted on November 28, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

All H-1B’s used up for this fiscal year

Question: I am planning on applying for an H-1B. Are there H-1B’s still available?

Answer: U.S. Citizenship and Immigration Services (USCIS) announced today that it has
received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY)
2012. USCIS notified the public that yesterday, Nov. 22, 2011, was the final receipt date for new
H-1B specialty occupation petitions requesting an employment start date in FY 2012.
Properly filed cases will be considered received on the date that USCIS physically receives the petition;
not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B
specialty occupation workers seeking an employment start date in FY 2012 that arrive after Nov. 22,
2011.

Question: How about if I have a master’s degree?

Answer: As of Oct. 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons
exempt from the cap under the ‘advanced degree’ exemption.

Question: What if I am not subject to the H-1B cap?

Answer: USCIS will continue to accept and process
petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B
workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B
cap.

Accordingly, USCIS will continue to accept and process petitions filed to:
1) extend the amount of time a current H-1B worker may remain in the U.S.;
2) change the terms of employment for current H-1B workers; 3) allow current H-1B workers to change employers; and
4) allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require
theoretical or technical expertise in specialized fields such as scientists, engineers or computer
programmers.

Question: Who is exempt from the H-1B cap?

Answer: This H-1B provisions exempts from the annual 65,000 H-1B numerical limitation or “cap” petitions for H-1B beneficiaries employed “at” ), or who have received an offer from, one of the following four types of organizations:
(1) An institution of higher education;
(2) A nonprofit entity that is related or affiliated to an institution of higher education;
(3) A nonprofit research organization;
(4) A governmental research organization.
If you were waiting for an H-1B for this fiscal year and are not exempt, then you would just do what is necessary to make sure it is ready to be filed in April of 2012.

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All H-1B’s used up for this fiscal year

Posted on November 28, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: I am planning on applying for an H-1B. Are there H-1B’s still available?

Answer: U.S. Citizenship and Immigration Services (USCIS) announced today that it has
received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY)
2012. USCIS notified the public that yesterday, Nov. 22, 2011, was the final receipt date for new
H-1B specialty occupation petitions requesting an employment start date in FY 2012.
Properly filed cases will be considered received on the date that USCIS physically receives the petition;
not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B
specialty occupation workers seeking an employment start date in FY 2012 that arrive after Nov. 22,
2011.

Question: How about if I have a master’s degree?

Answer: As of Oct. 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons
exempt from the cap under the ‘advanced degree’ exemption.

Question: What if I am not subject to the H-1B cap?

Answer: USCIS will continue to accept and process
petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B
workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B
cap.

Accordingly, USCIS will continue to accept and process petitions filed to:
1) extend the amount of time a current H-1B worker may remain in the U.S.;
2) change the terms of employment for current H-1B workers; 3) allow current H-1B workers to change employers; and
4) allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require
theoretical or technical expertise in specialized fields such as scientists, engineers or computer
programmers.

Question: Who is exempt from the H-1B cap?

Answer: This H-1B provisions exempts from the annual 65,000 H-1B numerical limitation or “cap” petitions for H-1B beneficiaries employed “at” ), or who have received an offer from, one of the following four types of organizations:
(1) An institution of higher education;
(2) A nonprofit entity that is related or affiliated to an institution of higher education;
(3) A nonprofit research organization;
(4) A governmental research organization.
If you were waiting for an H-1B for this fiscal year and are not exempt, then you would just do what is necessary to make sure it is ready to be filed in April of 2012.

The H-1B

H-1B attorney

H-1B approval

Can I get the H-1B?

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Waiting for years outside the U.S. Is not necessary

Posted on October 24, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Do I have to wait for years to come to the U.S.?

Question: I have been waiting for many years to come to the United States from a petition from my sister. It has been 14 years. Must I still wait?

Answer: Actually, it takes even more years to do this. The visa number must be current and there is no way to speed this process up. However, there are different petitions where they do not have to wait for the visa number as they are not required to be on the visa waiting list to be able to come into the United States.

Question: What types of petitions are these?

Answer: Battered spouses/children; Returning resident aliens; Certain former U.S. Citizens; Qualifying ministers of religion and religious workers; and Certain widows and widowers of U.S. citizens.

Question: Can I have more than 1 petition go through at a time, or must I wait for my petition from my sister to become current.

Answer: You can have as many petitions as you like. It is like two horses going around the track. The first one to the finish line wins. Thus, for example, if you have a church that will petition you for the special immigrant religious petition, by all means try to get it.

Question: So which petition are on the visa waiting chart?

Answer: The basic category includes Family-based preference immigrants; Employment-based preference immigrants; Diversity immigrants; and Family unity immigrants.

Question: What about temporary visas? Can I come in temporarily while waiting?

Answer: Most of the time, the answer would be no. However, there is what is known as the H-1B work visa which allows both immigrant processing and the H-1B to go forward at exactly the same time. You will need to have an employer agree to sponsor you for a job. It does not need to be a full-time position, but it should be related to your degree. Once filed, this petition only takes about 6 months to process.

Another type of petition for a non-immigrant visa would be the L-1. An L-1 Visa is one of the nicest working visas as it allows you to run your own business or a business owned by the foreign company. If you have your own business outside the U.S. and have been working there for at least one year, you can come to the U.S. on the L-1 Visa.

Additionally, your spouse and unmarried children under 21 years old can come as beneficiaries to your approved L-2. Your children will be able to go to school in the U.S. without having to get a separate student visa (as long as they are not in college.). A great deal of the success of the L-1 Petition is how it is prepared. Unlike other investment related visas, the investment in the U.S. business could be as low as $10,000U.S.  

Thus, there are several ways to avoid the multiple years of waiting outside the U.S.

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My FOIA took YEARS, not only 20 days!

Posted on October 18, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

I have to wait years for a FOIA?

Question: I filed for a FOIA years ago and still do not have a response. Is there anything I can do?

Answer: It has taken longer and longer. The Freedom of Information Act (FOIA) does allow you to get a copy of of your file from Immigration to basically see what information they have on you. There was actually a case in U.S. District Court which had this same issue. In that case, Mirsad Hajro is a lawful permanent resident of the United States who applied for naturalization in 2003. In October 2007, Hajro received notice that his application had been denied based on evidence in his alien registration file that allegedly revealed false testimony regarding his foreign military service. On or about November 9, 2007, Hajro filed an appeal pursuant to 8 U.S.C. 1447(a) and requested a review hearing before an immigration officer. Hajro also filed a request under FOIA with the Department of Homeland Security (“DHS”), USCIS, National Records Center, seeking a copy of his alien registration file. Hajro has since applied for and been denied naturalization a second time on the same grounds.

Hajro requested expedited processing of his FOIA request under the terms of a 1992 national settlement agreement (“Settlement Agreement”). The Settlement Agreement provides for the establishment of a national policy on priority for processing FOIA / Privacy Act requests to be used by Immigration and Naturalization Service (“INS”) officers. The policy requires immediate processing of an expedited request, where the failure to process a request immediately would either: (a) jeopardize life or personal safety; or (b) impair “substantial due process rights of the requester” and the information sought is not otherwise available. Hajro’s request noted that he needed the copy of his alien registration file in order to see the alleged evidence upon which the denial was based in time to prepare his appeal.
Basically, Hajro needed to get a FOIA to see what evidence was in the file against him to claim that he has committed fraud. It certainly was impairing his due process rights by not having it. Likewise, most people who file FOIA’s are not just filing them because they want an extra copy of their file. They are filing it because they are being denied some benefit from Immigration or not able to move forward with some immigration process.
Question: Well, I’m assuming he did not get his FOIA which was the basis for the suit. Why not?
Answer: On November 19, 2007, Cejka, the Director of the San Francisco Office of USCIS, sent a letter acknowledging receipt of Hajro’s FOIA request and informing him that it did not qualify for expedited processing and would be processed on the Track 2 “complex track.” The Settlement Agreement notwithstanding, since 2007, USCIS has used a three-track system for processing FOIA requests: “Track 1” for simple requests, “Track 2” for complex inquiries that require additional time, and “Track 3” for expedited processing for individuals subject to removal proceedings and scheduled for a hearing before an immigration judge.
Question: So what was the ultimate ruling in the case?
Answer: Plaintiffs argue that the unlawful withholding of information underlying USCIS’s denial of Hajro’s naturalization application violated his fundamental due process rights to a fair hearing. Specifically, Plaintiffs contend that Hajro has a constitutional right to see the evidence relied upon by Defendants in their decision to deny citizenship, and that denial of citizenship should not be based on “secret evidence” unless national security is involved. Plaintiffs also point out that Hajro’s counsel needed to see the evidence in order to prepare his client’s appeal, such that these circumstances, like those discussed in other attorney declarations submitted by Plaintiffs, constituted a situation where expedited processing of the FOIA request would have been warranted under the due process protections of the Settlement Agreement.
Therefore, the Judge ruled that Hajro should have received the FOIA within 20 days of requesting it. Likewise, if you have such a case, especially where allegations are being alle`ged against you, make sure you get a FOIA and if there is a delay, you can sue them in Federal Court.

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Am I a U.S. Citizen?

Posted on April 18, 2011 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Am I a U.S. Citizen?

Question: I thought it would be easy, but I am simply not sure if I am a U.S. Citizen or not. Can you let me know?

Answer: First is the principal of what is known as Jus Solis. This means that if you are born in the U.S., that you are a U.S. Citizen. Thus, if your mother comes to the United States for 5 minutes and gives birth to you and then leaves the United States and takes you with her, that you are a United States Citizen. It does not matter if you live in another country for the next 50 years. You can return at any time to the United States as a U.S. Citizen. There are no time limitations or requirements that you enter the United States periodically.

Question: How about if I was born outside the United States? Is there a way that I might still be considered to be a U.S. Citizen?

Answer: The answer is yes. However, it depends on certain factors. For example, you first have to look and see where your mother and/or father were born. If either your mother or father were born in the United States, then you would have the possibility that they could transmit U.S. Citizenship to you.

Question: Is this the same as Naturalization?

Answer: No. Naturalization is when you are a lawful permanent resident for a certain period of time and then meet the necessary requirements to apply to become a U.S. Citizen through naturalization. However, if you qualify to have citizenship transmitted through your mother or father, then you are considered a U.S. Citizen the moment you were born and it cannot be taken away from you.

Question: So how do I know if I am a U.S. Citizen if I was born outside the United States and my mother or father was born in the U.S.?

Answer: First, this is known as acquisition of citizenship. If it works, then your mother or father or both will ‘transmit’ citizenship to you. First, you have to be aware that the law that is applied to you for the transmission of citizenship will depend upon when you were born. It is not the law of today. Essentially, there are several changes to the law as time has passed, but only the law in effect when you were born is relevant here.

First, you would determine if you were born out of wedlock. If so, different laws will apply. Next, you will determine if it was your mother or father who was the U.S. Citizen. If it was the mother, you will have a much easier time of having your citizenship transmitted. She only would have needed to be in the United States for one year before your birth. However, if it was the father who was born in the U.S. He would have had to legitimate you prior to your 18th birthday. If he did not legitimate you, then you cannot have citizenship transmitted. Legitimation is a subject all of its own. Basically, however, he would have had to put in writing that you are his child and that he sent you support as you were growing up.

Question: What is the law today.

Answer: We have what is known as the Child Citizenship Act of 2000 or the CCA. If either the mother or father is a U.S. Citizen (born here or by Naturalization) and the child enters the United States as a Lawful Permanent Resident and enters the United States before he or she is 18 years old, then that child is automatically a United States Citizen. Thus, that child would be a resident for the plane ride to the United States and then become a United States Citizen when that child touches United States soil.

Thus, if your mother or father is a U.S. Citizen, make sure to seek help to determine if you can have citizenship transmitted to you through acquisition of citizenship.

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  • Brian D. Lerner

    Immigration Lawyer

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