Great news for children born ‘out of wedlock’ to US citizen fathers

The Second Circuit Court of Appeals recently ruled that an out of wedlock child’s Constitutional equal protection rights to derive US citizenship at birth were violated, when the law had much tougher requirements for children of US citizen fathers than the requirements for children of US citizen mothers.
Under US immigration law, an out of wedlock child, born outside the US, could derive “instant” US citizenship from his or her US citizen mother or father, provided certain conditions are met.
If the child’s mother was a US citizen at the time of the child’s birth, the mother had to live in the US (or one of its outlying possessions, such as the Philippines before 1946) for at least one year at some point before the child’s birth.
However, if the child’s father was a US citizen at the time of the child’s birth, the father must have lived in the US (or one of its outlying possessions) prior to the child’s birth, for a total period of 10 years, with at least five of those years occurring after the father’s 14th birthday.
In other words, US citizen unwed mothers only had to live in the US for one year at any point in their life before their child’s birth, whereas US citizen fathers had to live in the US for at least 10 years, and at least up to the father’s 19th birthday. Therefore, no 18-year-old US citizen father could ever pass US citizenship to his out of wedlock child.
In that appellate case, the person’s father lived in Puerto Rico (a US possession) up until 20 days before the father’s 19th birthday, at which time the father moved to the Dominican Republic, where the person was born. Therefore, the father was 20 day short of living in a US possession for at least five years after his 14th birthday.
The child of the US citizen father was put in removal proceedings, but claimed he derived US citizenship at birth through his father, by applying the one-year physical presence requirement applicable to unwed US citizen mothers. The more stringent requirements applicable to unwed citizen fathers violated the constitutional guarantee of equal protection, in that it treated out of wedlock children of US citizen fathers different from out of wedlock children of US citizen mothers.
The Court of Appeal agreed, and held the person derived US citizenship at birth through his father, by applying the same standard that applies to unwed mothers (being physically present in the US for only one year).
I know there were many children born out of wedlock to US citizen fathers, but the child’s claim to US citizenship was rejected because the father may not have lived in the US or US possession  for at least 10 years, five of which were after the father’s 14th birthday. However, the US citizen father had lived in the US for at least one year. This case would help those children in their quest for US citizenship, if the length of time their father lived in the US (prior to their birth) was the only issue.
If this situation applies to you, you may want to seek the advice of an attorney, who can evaluate your situation. However, please note there are several other requirements that must also be fulfilled in order for a person to be considered an instant US citizenship, even if their US citizen father had lived in the US for at least a year prior to their birth. These requirements include the father acknowledging/legitimating the child, having signed or agreed to provide for the child’s care and support, etc.  But at least this case provides new hope to out of wedlock children, whose father may not have lived in the US or US possession for at least 10 years.

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Michael J. Gurfinkel is licensed, and an active member of the State Bar of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein including testimonials, “Success Stories,” endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.
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