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Q My husband and I plan to return to our home country when we finish our university degree programs. If our U.S.-born child lives abroad until adulthood, will he still hold U.S. citizenship?

A The child is born a U.S. citizen and remains a U.S. citizen even if s/he obtains a foreign passport. If the foreign government also considers him or her to be a citizen of that country, then it is necessary for her/him to choose nationality upon turning 18. When that U.S. citizen turns 21, s/he will be eligible to apply for your green cards. Only an affirmative act, such as renouncing/relinquishing the U.S. citizenship, would cause the child’s status as a U.S. citizen to be terminated.

Q I am an Indian national born in India. When I was three years old, my parents and I moved to Canada and we all became Canadian citizens. I entered the United States as a citizen of Canada on an I-94 and no one asked me about my country of birth. Now I completed the labor certification application, and when I filed concurrently the I-140 petition and I-485 application, the USCIS approved I-140 petition but denied I-485 application, saying the visa number is not available for me. I am an EB-2 applicant. Why did Texas Service Center deny my I-485 application?

A Under U.S. immigration laws, applicants backgrounds are treated differently for nonimmigrant and immigrant proceedings. In nonimmigrant proceedings, the applicable rules are governed by the “citizenship” of the applicant, while in immigrant proceedings, the laws and rules are governed by “place of birth.” For instance, “citizens” of 27 countries enjoys entry to the United States for a visit without a visa under the visa waiver program. Canadian “citizens” also do not need a visa to visit the United States. The definition of citizen includes both native-born citizens and naturalized citizens, or those born in a foreign country to a citizen of a different country. However, when it comes to applying for any “immigrant” (green card) proceedings, the citizenship of the applicant practically plays no part. All that counts for the purpose of the eligibility of an immigrant visa is the country of birth. In your case, you probably misunderstood that you were eligible for I-485 application since the EB-2 visa number was available for Canada. For immigrant proceedings, you are still considered an Indian and you will have to keep track of the movement of the visa numbers in the monthly Visa Bulletin for India. Your next question was why you were not eligible for cross chargeability to use Canada and to apply for I-485. The answer remains same. Cross chargeability is related to the “immigrant visa” proceeding and is determined by country of birth.

Q I have been a U.S. citizen for 10 years. My wife is a lawful permanent resident. When can she apply for U.S. citizenship?

A Generally, lawful permanent residents must hold permanent resident status for five years in order to file for U.S. citizenship, but the three-year rule benefits spouses of U.S. citizens. One may apply for citizenship after holding lawful permanent resident status for three years if s/he is currently married to and living with a U.S. citizen, has been married to and living with that same U.S. citizen for three years, and that spouse has been a citizen for the past three years.

Immigration and business attorney Indu Liladhar-Hathi has an office in San Jose. (408) 453-5335.


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