#9138 - Citizenship - Immigration Law

CITIZENSHIP

1. Three Ways of Becoming a Citizen

   1. Being Born in U.S. soil

   2. Being born abroad to 1 or 2 Citizenship parents

      1. Exceptions exist depending on physical presence of citizen parents in U.S. and marital status

   3. Naturalizing

1. Acquiring Citizenship

   1. Two Key Principles

      1. Just Soli Right of the land

      2. Jus Sanguinis Right of the blood

   2. Just Soli

      1. Only Constitutional mention Requirement that the President be “naturally born”

      2. 14^th Amendment: All persons born or naturalized in the US are subject to jurisdiction thereof, are citizens of the US and the states in which they reside

   3. Jus Sanguinis

      1. Requires 1 or 2 citizen parents at the time of birth

      2. Additional residence requirements to prevent chain of non-resident citizens: Physical presence and residence requirements are only for parents

      3. Born abroad to 2 US citizen parents § 301(c)

      4. Born abroad to 1 US citizen and 1 Non-citizen parent § 301(g)

      5. Descent law in force at birth (usually) determines whether acquired citizenship by descent

2. Citizenship Acquired After Birth

   1. Authority: Congress authorized by Constitution to establish a “uniform Rule of Naturalization” – Article 1, § 8, cl. 4

   2. Immigration Act of 1990 transferred authority from courts to AG § 310(a)

      1. Now DHS delegated to USCIS

      2. Courts have jurisdiction to review naturalization denials DE NOVO § 310(b,c)

3. Naturalization: Nationality conferred after birth § 101(a)(23)

   1. Basic Requirements

      1. Lawful Permanent Residence § 318

         1. Excludes those admitted on basis of fraudulent documents or otherwise inadmissible

      2. Residence and Physical Presence § 316(a)

         1. Continuous residence for 5 years as LPR

         2. Physically present for at least half of 5 years

         3. Continuous residence while application pending

         4. Period can reduce to 3 years if married to citizen

            1. Exceptions to residency and LPR status made for military service §§ 328, 329

      3. Good Moral Character § 316(a)(3)

         1. Required during all residence and physical presence periods

         2. Grounds precluding good moral character § 101(f)

      4. Age § 334(b): Must be 18 or older for administrative naturalization; under 18 will have a derivative naturalization

      5. English Language: § 312(a)(1)

         1. Must demonstrate understanding, including ability to read, write, and speak words in ordinary usage

         2. Exceptions to physically disabled, elderly with long term residence

      6. Knowledge of Civics § 312(a)(2): Knowledge, understanding or fundamentals of history, principles, and form of government in the US

      7. Political Requirements § 313: Ineligible classes include opposition to organized government and communists

   2. Process

      1. File application with USCIS § 334(a)

      2. USCIS examiner interviews applicant under oath, examining English skills – INA § 335(a)

      3. Criminal Background Check Performed

      4. Examiner must announce grant or denial within 120 days, or applicant entitled to district court hearing § 336(b)

   3. Child Citizenship Act of 2000

4. Dual Nationality

   1. Three Fundamental Principles

      1. Every sovereign state decides its nationals

      2. Typical law provides alternative, multiple routes to nationality

      3. In actual practice rules vary from state to state

   2. Jus Soli birth with two different national parents (jus sanguinis) could produce triple nationality

   3. Renouncing Citizenship to Gain Another: Varies among countries and US officially has NO opposition on dual citizenship

First Amendment

Types of Preemption

Whiting and Arizona preemption: holdings

Presumption against presumption

Constitutional limits

Concurrent state enforcement: total field preemption

Local police powers

IRCA licensing/exceptions

Mandatory detention cases

Zadydas v. Davis

3 ways to become LPR through US citizen: K1 visa, consular processing; adjustment of status

Requirements to sponsor spouse for LPR

Bona Fide Marriage

Conditional Permanent Residence: 2 years, 90-day window

Marital Union: 3 years in marital union to get LPR status

Visa Bulletin: how to use it: priority date

Employment Preferences: 2^nd and 3^rd

Ration of Family to Employment LPRs: numbers allotted to each: whether it should be different

H1 visa & K1 visa

H1: bachelor’s...