Tomakin: US citizens born abroad

Monday, April 25, 2011

STEVE, a US citizen, came to the Philippines to meet his fiancée Nora, a Filipino citizen. Steve wanted to petition Nora to the US but due to some errors in her birth certificate, they decided to just wait it out until the court issues a final judgment on her petition for correction of entry in her birth certificate. When Steve arrived back in the US, he learned that Nora was two months pregnant with their first child.

Equally excited, he came back to the Philippines so that he could be by Nora's side when she gives birth. Being so pre-occupied with this latest development, they never had the opportunity to get married.

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After the birth of Steve Jr., Steve wanted to establish that his son is also a US citizen. How can Steve claim the US citizenship of Steve Jr.?
Generally, the US follows the jus soli principle of birth - that is - if one is born inside the US, he is considered a US citizen. However, US laws also bestows US citizenship to those who were born outside the US but are considered as US citizens because one or both of their parents are US citizens subject to some requirements. In our case, Steve Jr., maybe considered a US citizen because his father, Steve is in fact a US citizen. So what must Steve do?

First of all, Steve should prove that he is himself a US citizen. He must provide a copy of his birth certificate or certificate of naturalization. He must also prove that at the time of Steven Jr.'s birth, he was a US citizen and that he had been physically present in the US for a sufficient time in order to transmit citizenship. In other specific cases, there are special rules that govern transmission depending upon the date of birth of the child and the legal relationship between the parents at the time of the birth of the child.

Secondly, Steve must also prove that he has legitimated Steve Jr. In his case, Steve Jr., was born to an out of wedlock US citizen father and non-US citizen mother with no subsequent marriage, Steve must acknowledge paternity of Steve Jr., in writing under oath or he must show that his paternity of Steve Jr., was established by a final judgment of a court. Steve should also provide in writing and under oath of his agreement to provide financial support for Steve Jr., until the latter reaches the age of 18 years old. Take note that this show of legitimation must be made while Steve Jr., is under 18 years old. Again, there are special rules that apply in other cases depending upon date of birth of the child and the legal relationship between the parents at the time of the birth of the child.

Thirdly, Steve must also be able to demonstrate that he has legal and biological relationship with Steve Jr. He must show that he is not a "father" in name only but has also exercised his paternal rights and responsibilities. He must provide proof of his care, love and support to the well being of his son. Examples of proof would be birth certificate of Steve Jr., bearing his name as the father, letters, emails, cards sent to Nora inquiring about Steve Jr., photos with Steve Jr., receipts showing gifts sent to Steve Jr., medical bills he paid for, evidence showing he named Steve Jr., as his beneficiary in his insurance or will, etc.

You may note that in all these three requirements, there are also other rules that apply in certain cases depending upon the date of the child's birth, the legitimacy of the child at birth, the citizenship of one or both parents, the dates when the US citizen parent was physically present in the US and lived therein before and after the child was born. True enough, there are situations in which one, unknowingly, may have been a US citizen. In these cases, every circumstance is unique and a thorough gathering and analysis of the facts must be made.

By the way, I would like to take this opportunity to greet each one of you a truly blessed and meaningful Easter. May the message of the passion, death and resurrection of Christ bring us hope, faith and joy in our lives.

I would also like to inform the readers that I will be in the Philippines during the month of May for both business and leisure. The articles will still continue to see print as scheduled.

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This column is not a substitute for professional legal advice obtained from a US licensed immigration attorney. The information contained herein does not constitute a warranty or guarantee or legal advice regarding a reader's specific immigration case. No attorney-client relationship is and shall be established with any reader.

For any questions, comments and observations, please contact Atty. Marco Tomakin at mtomakin@gmail.com or at 0917-964-3365; 0909-270-1058; (032) 236-7494; (032) 254-9697.