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Automatic Vesting of Derivative Citizenship

Posted by attorney Brian Lerner

Derivative citizenship is a form of naturalization that occurs automatically. Children who become citizens under these provisions do not need to meet any of the substantive requirements of naturalization. It does not matter if they have criminal convictions in the past, or if they are in the middle of a trial or if they are an aggravated felon under the Immigration and Nationality Laws. They do not need to file an application or submit any other paperwork to become citizens. Nor are they required to follow any designated procedures. Derivative citizenship statutes have always been written so that they vest automatically upon the occurrence of all relevant conditions. Therefore, derivative citizens may be unaware of the fact that they are U.S. citizens. Thus, for example, section 320 of the Immigration and Nationality Act now provides that "[a] child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled …" This provision is noteworthy because it mandates the transformation without any decision of the USCIS. Thus, it provides that the child automatically becomes a citizen upon certain events occurring. Second, it refers to the transformation as becoming a citizen rather than being naturalized. Third, the transformation happens when a certain condition is met, rather than as a result of an application. Since they are already citizens, persons who derive citizenship may obtain proof of their U.S. citizenship status by filing for a certificate of citizenship with the USCIS or for a passport with the passport office of the State Department.

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