Constructive Retention in ACT 320

[StephenK]

First I will explain the situation. My grandfather was a US citizen and fought in the armed forces for 15 years, including WW2. We have the papers to prove this. My father was born in Florida and we have his birth certificate. When he was 5 he left and never returned. I understand that if he had been there for 2 years after the age of 14 that I would have already been granted citizenship through birth. In addition to this, if I had applied through my grandparent before the age of 18 I also would have been a citizen through this method.

I was born in Canada in 1991 and my father did not declare my birth to the US. Can I argue using constructive retention that I should be a citizen? Neither myself nor my father realized that at this point in my life I would want to work in the US and I was personally unaware of him even being a US citizen before I was 18.

Can someone please advise?

Thank you very much.

[StephenK]

I want to add additional information. Myself and my father were unaware of the requirements to transmit citizen to me until only recently. I have proof that I was ignorant of this in the form of emails with prospective US based employers that inquired about visa status.

After reading court decisions and issues, I feel like I have hope using constructive presence due to ignorance of myself and my father. I did not know that ACT 320 would have made me a US citizen if I had lived in the US before the age of 18.

[inadmissible]

Your father can petition for you to immigrate to the United States using Form I-130

[StephenK]

Your father can petition for you to immigrate to the United States using Form I-130

I looked into it but he is not domiciled in the US and therefore cannot fill out the affidavit of support. I have a STEM degree and am not at risk of welfare but do not meet the requirements to have that form waived. Unless I am mistaken?

[StephenK]

Oh wait, since I was under 18 in 2001, does that mean the child citizenship act applies and I would automatically become a citizen thus would not require an affidavit of support?

[newacct]

Oh wait, since I was under 18 in 2001, does that mean the child citizenship act applies and I would automatically become a citizen thus would not require an affidavit of support?

No. That's only if you were living in the US as a permanent resident.

[StephenK]

What if I can establish that my father was unaware of his US citizenship and had intent to spend at least 2 years there after the age of 14 but did not due to his ignorance? Then this case applies to my own transmission through birth

[StephenK]

sorry for the train of thought posts.


Under act 320, if I had been a lawful resident before the age of 18 then I would have acquired citizenship. I want to argue that I was completely unaware of this at the time, and that I should be waived from that clause.

[inadmissible]

What argument does your father have that he was constructively present in the United States or its possessions for the requisite time prior to your birth?

for your alternative theory,

What argument do you have that your failure to naturalize prior to age 18 was due to circumstances beyond your control or by reliance on erroneous information provided by a United States official?

[StephenK]

What argument does your father have that he was constructively present in the United States or its possessions for the requisite time prior to your birth?

for your alternative theory,

What argument do you have that your failure to naturalize prior to age 18 was due to circumstances beyond your control or by reliance on erroneous information provided by a United States official?

prior to age 18 I was living in Canada under the custody of my parents and did not have the financial means or motivation from my citizen parent to naturalize. my father was, in fact, unaware that he was even a US citizen at the time. if this is the case, how could he be aware of my potential right to citizenship?

as for the constructive idea, if he was completely unaware but would have spent time there if he had known, then his intent can count. maybe?

[inadmissible]

USCIS considers knowledge of the law as a factor that is entirely within an individuals control

In the first case, your father chose not to reside in the United States by his own volition. In the second case, you did not seek to naturalize through your grandparent

You have a relatively simple pathway to US citizenship, which you should take advantage of before your father passes away