INA 301 (g) provision

[Edgar ADLC 1]

Hi everyone, I'm new here to Visa Journey. I would like to ask for help in determining if my wife has a case in Deriving citizenship based on the requirements when having a USC Mother and Alien Father at birth in wedlock.

 

The USC Mother at birth satisfies the first requirement

But I am concerned about the residency requirement specifically.

 

Reference: 

https://www.uscis.gov/policy-manual/volume-12-part-h-chapter-3#footnote-3

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1401&num=0&edition=prelim

 

Specifically, this provision in INA 301 (g):

Quote

 ... or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, .... may be included in order to satisfy the physical-presence requirement of this paragraph.

 

Wife was born 1992 born in Philippines

USC Mother of Wife was born 1973 in Rhode Island, USA

 

USC Mother of Wife lived in the USA from 1973 to 1977 then flew to the Philippines and stayed there until 1992 when wife was born.

 

This would mean that she had only 4 years in the USA as physical presence, and 0 years beyond 14 years of age (the requirement of residency is 5 years, 2 of which is after 14 years of age)

 

But while USC Mother of wife was living in the Philippines, she was living with her father (wife's grandfather) who was a USC in Active Service with the US Navy from 1970 - 1996 while in the Philippines.

 

That would mean that from 1973-1992, USC Mother of Wife fits into this provision

"physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States"

 

-- Am I correct??

 

If that the case, would USC Mom of Wife living with the USC Navy Father (wife's grandfather) satisfy the residency requirement for my wife's mother?

 

Do we have a case?

 

Thank you all!

 

[Mike E 11,739]

Good find.  I think you are correct.  
 

Getting the evidence will be a challenge.  

[Edgar ADLC 1]

24 minutes ago, Mike E said:

Good find.  I think you are correct.  
 

Getting the evidence will be a challenge.  

Do you think I will need a lawyer for this?

 

We do have military records of the USC Navy Grandfather, the birth certificate of the USC mother, birth certificate of my wife and other things.

 

As far as I know, the process will be that my wife needs to apply for a US passport.. 

 

I found these as the steps to claim the Citizenship https://ph.usembassy.gov/wp-content/uploads/sites/82/CITIZENSHIP-Derivative-Checklist-DEC-16-2021-2.pdf 

which is what I'm planning to follow

 

But I have no idea how difficult the process will be. Anyone have experience with this?

[Mike E 11,739]

You don’t need a lawyer until USCIS and/or the State department illegally and/or improperly denies your N-600 and/or passport/passport card.  
 

I would start with applying for a passport and passport card, and if that works,  file N-600 

Edited January 20, 2022 by Mike E

[Edgar ADLC 1]

8 hours ago, Mike E said:

You don’t need a lawyer until USCIS and/or the State department illegally and/or improperly denies your N-600 and/or passport/passport card.  
 

I would start with applying for a passport and passport card, and if that works,  file N-600 

 

I'm concerned about the definition of dependent though -- do I need something like a military dependent card to prove that or is just being a minor under the household of the US Serviceman enough?

 

https://home.army.mil/monterey/application/files/8415/4948/5213/How_To_Make_a_Relative_a_MIilitary_Dependent.pdf#:~:text=Military%20Dependents,also%20quality%20for%20dependency%20status.

 

Link above says that "Certain family members, such as a spouse or child, are automatically entitled to dependency status" so it kind of makes sense that you don't necessarily need one.

 

INA 301 itself doesn't seem to define what would constitute a "dependent"

 

Do you know of any similar case like this that has been approved by a US Embassy CO for a passport?

[carmel34 3,625]

31 minutes ago, Edgar ADLC said:

INA 301 itself doesn't seem to define what would constitute a "dependent"

Does the USC father in the military overseas have records of tax returns for the years his daughter was his dependent?  If not, check with the IRS to see if there is a way to retrieve copies.  Listing her as a dependent on official US government tax records seems like pretty good proof.

[Mike E 11,739]

52 minutes ago, Edgar ADLC said:

 

I'm concerned about the definition of dependent though --

 

As I implied, the process will be difficult.  Getting proof of decades after the fact usually is. The trail grows cold. The tax return idea works great until 8 years after the fact for example.
 

  This is why I always recommend that parents of people who were both born outside the USA and automatically acquired citizenship through one or both parents get a certificate of citizenship shortly after birth if a CRBA isn’t in hand.  
 

If you don’t know what a dependent is then hire an immigration attorney with specific competence in this area.  

Edited January 20, 2022 by Mike E

[Edgar ADLC 1]

3 minutes ago, Mike E said:

As I implied, the process will be difficult.  Getting proof of decades after the fact usually is. The trail grows cold.  This is why I always recommend that parents of people who were both born outside the USA and automatically acquired citizenship through one or both parents get a certificate of citizenship shortly after birth if a CRBA isn’t in hand.  
 

If you don’t know what a dependent is then hire an immigration attorney with specific competence in this area.  

 

To clarify my confusion, I understand a dependent from a Tax Perspective. I think it is the same across most countries.

However, it looks like there is also "Military dependent" that benefit from things like military discount in the USA, and I'm not sure which one INA 301 refers to - or maybe they are the same thing.

 

According to https://home.army.mil/monterey/application/files/8415/4948/5213/How_To_Make_a_Relative_a_MIilitary_Dependent.pdf#:~:text=Military Dependents,also quality for dependency status. the mother should qualify regardless, but I hope they don't start looking for a Military dependent card or something like that.

 

I think we should have enough evidence to prove the mother was a dependent minor unmarried daughter, just based on the registered father in the birth certificate and school records.

 

I'll probably get assistance from an attorney to get this right.

 

30 minutes ago, carmel34 said:

Does the USC father in the military overseas have records of tax returns for the years his daughter was his dependent?  If not, check with the IRS to see if there is a way to retrieve copies.  Listing her as a dependent on official US government tax records seems like pretty good proof.

 

I'll try this. Unfortunately the grandfather died back in 2014, so I imagine this will be hard to get but it's worth a shot!

 

We also tried to obtain records from https://vetrecs.archives.gov/ and the request is currently pending. 

I'm hoping one of the records returned would have a list of dependents.

[Edgar ADLC 1]

Update:

 

Got in touch with a lawyer. Attorney says that proof of relationship is enough to prove that the USC parent was dependent.

 

The Department of Defense defines a dependent of a member or the armed forces as: Spouse, child, widower. You can find the definition in this memo here: https://biotech.law.lsu.edu/blaw/dodd/corres/pdf/60108r_0791/cp3.pdf

[Edgar ADLC 1]

Hi guys

 

So I've had a lawyer give a professional opinion regarding the evidence that I have collected.

 

I provided all the legal basis I could find that would help us in our case, as below:

 

Quote

 

Source: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1401&num=0&edition=prelim

 

I have highlighted in bold and red text the specific provisions that apply to my wife and that qualifies her for citizenship at birth.

 

INA 301 (g)

§1401. Nationals and citizens of United States at birth 

 

The following shall be nationals and citizens of the United States at birth:

....

(g) 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: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;

 

 

The below are also additional legal basis that we have found that satisfies the physical presence requirements of the mother as stated in INA 301 (g)

 

Source: https://fam.state.gov/fam/08fam/08fam030107.html

 

8 FAM 301.7-3  U.S. PHYSICAL PRESENCE

 

(3)  Employment abroad in a capacity mentioned in the proviso of INA 301(g) can count toward and even completely satisfy the required period of physical presence in the United States.  A citizen who has never been physically present in the United States may therefore transmit citizenship if the citizen has met the physical presence requirement as a result of operation of the proviso; and

... 

d. Usually, it is not necessary to compute U.S. physical presence down to the minute.  For example, a U.S. citizen parent who was in the United States from 1970 to 1988 has met the current transmission requirements even if the exact months, days, or hours are unknown.  In general, a U.S. citizen who was in the United States from 1970 to 1986 could transmit U.S. citizenship at birth to a child born abroad on or after November 14, 1986; however, if the transmitting parent was born on December 31, 1970, and left the United States on January 1, 1986, that person would be missing almost one year of the required two years of physical presence after age 14.

 

 

8 FAM 301.7-3(A)  Interpretation of "Periods of Honorable Service in the Armed Forces of the United States"

 

a. The phrase "any periods of honorable service in the Armed Forces of the United States," includes all periods of honorable foreign service in the U.S. Armed Forces from the date of enlistment, whether the enlistment occurred in the United States or abroad.

 

 

8 FAM 301.7-3(B)  Interpretation of "Employment with the United States Government"

 

a. In considering what constitutes "employment with the United States Government", the Department takes into account 5 U.S.C. 2105 and other sections of the U.S. Code and the Code of Federal Regulations that define the status of certain types of personnel.  Factors to consider are whether: (1)  The person occupies an allocated position; (2)  The person's name appears on the payroll of a Department or agency; (3)  The person has a security clearance or took an oath of office; and (4)  The U.S. government has the right to hire and fire the person and to control the input and the end result of the employee's work.
...
c.  There is no requirement that an employee must have been sent abroad by the U.S. government in order to have the time spent abroad in U.S. government service count as physical presence in the United States.  Persons employed abroad under local hire by the U.S. government can count such periods of employment toward the physical presence required by INA 301(g).

 

 

8 FAM 301.7-3(D)  Interpretation of "Dependent Unmarried Son or Daughter"

 

a. A U.S. citizen son or daughter of any parent whose employment abroad with the U.S. Armed Forces, the U.S. government, or a designated international organization qualifies as physical presence in the United States may count as physical presence in the United States any time spent abroad with such parent during the parent's employment as long as the son or daughter was an unmarried, dependent member of the parent's household.  Whether the parent was a U.S. citizen, non-citizen U.S. national, or an alien at the time of employment is immaterial.
b. "Dependent," as used in INA 301(g), means relying on one's parents for more than half of one's support
c.  "Unmarried" means single, divorced, or widowed.
d. "Son or daughter" includes, regardless of age a(an): (1)  Legitimate son or daughter;

 

8 FAM 301.7-3(E)  Interpretation of "Member of the Household"

 

a. Generally, "a member of the household" of a person in qualifying employment abroad would live with that person, but in some situations the Department has considered sons or daughters living elsewhere to be members of the parents' household.  These situations occur most often when the parent accepts an unaccompanied tour abroad or the child attends school in another foreign country during a parent's tour of duty abroad and is away from home for most, if not all, of the year. 
b. A person whose parents maintained separate foreign residences for convenience or necessity but were not estranged can count as physical presence in the United States time during which that person lived at either of those residences while the qualifying parent was employed within the scope of INA 301(g).

 

 

I have provided all medical records from the Military Sealift Command (MSC) of the US Navy. These records date back from 1982 - 1996, over 118 pages worth of medical records with stamps of clearance from Officers in the MSCPAC. These had service number identifications for the people involved in the paperwork.

These records had a checkup every 6 months during service and the different ships he was cleared for during this time.

 

Records between 1985 - 1990 by itself should be enough to for the 5 years, 2 of which over 14 rule, based on the legal basis noted above.

 

I also provided the mother's birth certificate, 2 driver's licenses of the USC mother's parents when they were living in Rhode Island between 1970 - 1977, and evidence of the relationship between my wife and her mother (my wife's birth certificate) and evidence of the relationship between her mother and the grandparent who was in the Navy and MSC - birth certificate of the mother stating parents' names and birth in Rhode Island, and documents showing address of grandfather and mother being the same.

 

 

Unfortunately we were advised that the lawyer does not have good faith belief that the evidence is enough.

 

I am a little stuck here. I am finding it difficult to get Tax Returns of the grandfather from IRS, which is another avenue I am trying.

 

Any insight on what evidence or legal basis I am lacking here?

 

Thank you!

 

 

[Mike E 11,739]

I go  back to what I initially said. I would apply for passport and passport card.  
 

It costs $65 to apply for a standalone passport card. So you are risking $65 to find out if she is enough of a citizen to get a passport.   
 

 

[Edgar ADLC 1]

17 minutes ago, Mike E said:

I go  back to what I initially said. I would apply for passport and passport card.  
 

It costs $65 to apply for a standalone passport card. So you are risking $65 to find out if she is enough of a citizen to get a passport.   
 

 

 

Would that preclude my wife from applying for a passport again in the future if we obtain more evidence?

 

I heard with N-600s, once you get denied you are barred from trying again unless you file an appeal or request USCIS to re-open your case.

 

If passport applications are not that consequential, I suppose I might just try it soon.

[Mike E 11,739]

25 minutes ago, Edgar ADLC said:

 

Would that preclude my wife from applying for a passport again in the future if we obtain more evidence?

If state says: “we need more evidence” then I would like to see the legal basis for refusing to issue a passport when the required evidence is provided. 
 

I can never predict what bureaucrats will do.  What they do and what is legal don’t always align. 

 

 

 

Edited January 24, 2022 by Mike E