"Five years of physical presence" rule

[ezzie 7]

"Under the Child Citizenship Act, the U.S. citizen parent of a child living abroad must have five years of physical presence in the United States or its outlying possessions with at least two years occurring after age 14, in order to apply for citizenship on behalf of the child."

When do you start to consider the "five years of physical presence" rule? Is this when you get the LPR status, or when you actually get to the US? I came on B1/B2 and did AOS; became USC this year.

Anyone? Please help...

[payxibka 10,045]

"Under the Child Citizenship Act, the U.S. citizen parent of a child living abroad must have five years of physical presence in the United States or its outlying possessions with at least two years occurring after age 14, in order to apply for citizenship on behalf of the child."

When do you start to consider the "five years of physical presence" rule? Is this when you get the LPR status, or when you actually get to the US? I came on B1/B2 and did AOS; became USC this year.

Anyone? Please help...

....as a USC

Edited June 18, 2011 by payxibka

[JimVaPhuong 4,863]

....as a USC

No. Physical presence as an LPR also counts. My friend was an LPR for 14 years. He became a US citizen after his second trip to Vietnam and then filed a K1 petition. His fiancee became pregnant during his third trip. They scheduled an appointment to submit a CRBA at the consulate a few weeks after the K1 interview appointment. The visa was conditionally approved pending the outcome of the CRBA. The CRBA was approved a few weeks after it was submitted. At the time the child was born he had only been a US citizen for a little over a year, so obviously they had to count the time he was an LPR.

[sjr09 155]

No. Physical presence as an LPR also counts. My friend was an LPR for 14 years. He became a US citizen after his second trip to Vietnam and then filed a K1 petition. His fiancee became pregnant during his third trip. They scheduled an appointment to submit a CRBA at the consulate a few weeks after the K1 interview appointment. The visa was conditionally approved pending the outcome of the CRBA. The CRBA was approved a few weeks after it was submitted. At the time the child was born he had only been a US citizen for a little over a year, so obviously they had to count the time he was an LPR.

Was the parent(s) of your friend, naturalized US citizen? As in the child's grandparent(s)

[JimVaPhuong 4,863]

Was the parent(s) of your friend, naturalized US citizen? As in the child's grandparent(s)

No. His parents live in Mexico. They've never had immigrant status in the US.

[sjr09 155]

No. His parents live in Mexico. They've never had immigrant status in the US.

Should have ask this question on my last post, what the status of the childs mother and her parents?

[JimVaPhuong 4,863]

Should have ask this question on my last post, what the status of the childs mother and her parents?

She and her parents are Vietnamese nationals. She got her K1 last month, and she arrived in the US, with the child bearing a US passport, last weekend.

[sjr09 155]

No. Physical presence as an LPR also counts. My friend was an LPR for 14 years. He became a US citizen after his second trip to Vietnam and then filed a K1 petition. His fiancee became pregnant during his third trip. They scheduled an appointment to submit a CRBA at the consulate a few weeks after the K1 interview appointment. The visa was conditionally approved pending the outcome of the CRBA. The CRBA was approved a few weeks after it was submitted. At the time the child was born he had only been a US citizen for a little over a year, so obviously they had to count the time he was an LPR.

I can't find anything that supports your statement, "physical presence as an LPR also counts."

If you read the langue of the provisions of the Child Citizenship Act, his naturalization is only a little over a year, the 'physically present' should start when he becomes a naturalized US citizen, If I understand provisions correctly?

Provisions of the Child Citizenship Act? at least one parent of the child is an American citizen by birth or naturalization. The American citizen parent has been physically present in the United States for a total of at least five years, at least two of which are after the age of 14.

[ezzie 7]

No. Physical presence as an LPR also counts. My friend was an LPR for 14 years. He became a US citizen after his second trip to Vietnam and then filed a K1 petition. His fiancee became pregnant during his third trip. They scheduled an appointment to submit a CRBA at the consulate a few weeks after the K1 interview appointment. The visa was conditionally approved pending the outcome of the CRBA. The CRBA was approved a few weeks after it was submitted. At the time the child was born he had only been a US citizen for a little over a year, so obviously they had to count the time he was an LPR.

But would "physical presence" also include the time the biological parent was still "conditional" for 2 yrs, by virtue of marriage to a USC?

[sjr09 155]

She and her parents are Vietnamese nationals. She got her K1 last month, and she arrived in the US, with the child bearing a US passport, last weekend.

Can’t argue that.

[JimVaPhuong 4,863]

I can't find anything that supports your statement, "physical presence as an LPR also counts."

If you read the langue of the provisions of the Child Citizenship Act, his naturalization is only a little over a year, the 'physically present' should start when he becomes a naturalized US citizen, If I understand provisions correctly?

Provisions of the Child Citizenship Act? at least one parent of the child is an American citizen by birth or naturalization. The American citizen parent has been physically present in the United States for a total of at least five years, at least two of which are after the age of 14.

I can't find anything that says otherwise. 8 USC 1401 says:

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years

It says one parent must have been a US citizen at the time of the child's birth, and that they must have been physically present in the US for five years prior to the birth. It doesn't specifically say that the parent must have been a US citizen during those five years. By strict interpretation of this law, my friend was eligible to convey citizenship on his foreign born child. The consulate in HCMC apparently agreed.

The purpose of the physical presence requirement was to prevent someone from creating a chain of US citizenship to multiple generations of a family who have never been in the US. For example, Joe is born in country X to a parent who is a US citizen, so he acquires US citizenship. Joe never goes to the United States, but fathers a child - John - who acquires US citizenship through parent Joe. John never goes to the US, and fathers a child - Sally - who acquires US citizenship through parent John, and on and on. The law was specifically crafted to avoid scenarios like this from happening. If John never goes to the United States, and never meets the residency requirement, then the chain of conveyed citizenship ends with him.

It would be a little silly if they required the parent to be a US citizen during the five years of physical presence. That would effectively be saying that you aren't eligible to convey citizenship to your children until you've been a citizen for five years, even though that same child would automatically become a US citizen if they were admitted to the US as an immigrant, even if the child arrived in the US the day after the parent took the oath of citizenship.

[ezzie 7]

I can't find anything that says otherwise. 8 USC 1401 says:

a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years

It says one parent must have been a US citizen at the time of the child's birth, and that they must have been physically present in the US for five years prior to the birth. It doesn't specifically say that the parent must have been a US citizen during those five years. By strict interpretation of this law, my friend was eligible to convey citizenship on his foreign born child. The consulate in HCMC apparently agreed.

The purpose of the physical presence requirement was to prevent someone from creating a chain of US citizenship to multiple generations of a family who have never been in the US. For example, Joe is born in country X to a parent who is a US citizen, so he acquires US citizenship. Joe never goes to the United States, but fathers a child - John - who acquires US citizenship through parent Joe. John never goes to the US, and fathers a child - Sally - who acquires US citizenship through parent John, and on and on. The law was specifically crafted to avoid scenarios like this from happening. If John never goes to the United States, and never meets the residency requirement, then the chain of conveyed citizenship ends with him.

It would be a little silly if they required the parent to be a US citizen during the five years of physical presence. That would effectively be saying that you aren't eligible to convey citizenship to your children until you've been a citizen for five years, even though that same child would automatically become a US citizen if they were admitted to the US as an immigrant, even if the child arrived in the US the day after the parent took the oath of citizenship.

Very well said.

[sjr09 155]