INTERPRETATIONS. Service Law Books. Sec.

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1 INTERPRETATIONS Sec United States Citizenship Issuance of United States passports in relationship to citizenship claims United States Citizenship acquired in Puerto Rico United States Citizenship acquired in the Canal Zone; Republic of Panama United States Citizenship acquired in Alaska United States Citizenship acquired in Hawaii United States Citizenship acquired in the Virgin Islands United States Citizenship acquired in Guam United States noncitizen nationality Acquisition of United States nationality by illegitimate children Jurisdiction to naturalize Eligibility to naturalization Educational requirements Educational requirements for naturalization satisfied pursuant to the Immigration Reform and Control Act of 1986 (IRCA) Subversives Immigration and Nationality Act Deserters; draft evaders Effect of pardon and amnesty General application of section World War I conscription statutes Post World War I conscription statutes Effect of service by previously barred alien Treaty nationals Findings in denial cases Nationalization requirements Temporary absence of persons performing religious duties Lawful entry for permanent residence Effect of deportation proceedings upon naturalization eligibility Court's authority to determine legality of reentry in its bearing upon naturalization eligibility, absent deportation proceeding Effect of claim of nonresident alien status for income tax purposes upon prior lawful admission for permanent residence Effect of waiver of deportability under section 241(f) upon status as a lawfully admitted permanent resident Naturalization based upon citizenship of spouse Naturalization based upon citizenship of spouse employed abroad Derivation of citizenship Computation of age for derivative purposes Reference Naturalization of minor natural children Naturalization of adopted minor children Issues relating to both natural and adopted minor children Loss of citizenship by marriage

2 324.2 Reacquisition of citizenship lost by marriage Naturalization of noncitizen nationals Filipino citizens statutorily regarded as lawful permanent residents Resumption of citizenship by persons expatriated in connection with foreign military service Naturalization based upon service in the armed forces Naturalization based upon honorable service in the armed forces during wartime Act of June 30, 1950 (foreign enlistees) Naturalization of seamen under former statutes Naturalization of seamen under Immigration and Nationality Act Alien enemy naturalization Procedures of government supervision in naturalization cases Eligibility to file petition under the Nationality Act of Petition for naturalization Declaration of intention Investigation and examination of petitioners for naturalization Transfer, withdrawal, or dismissal of petitions for lack of prosecution Effect of petitioner's refusal to testify during preliminary examination based on fifth amendment Final hearing Statutory terms of oath Obligations of oath Oath in relationship to petition filed before December 24, Oath exemption accorded children Oath to be administered in English language only Special provisions relating to disabled petitioners Affirmation in lieu of oath Renunciation of hereditary titles Certificate of naturalization Origin and nature of revocation proceedings Revocation grounds Effect of revocation upon derivative rights Revocation procedure Reconsideration of naturalization decree during term of court Derivation through marriage Administration issuance of certificates of citizenship Administrative cancellation of documents Issuance of nationality documents-generally Issuance of nationality documents by administrative authority General principles of expatriation Expatriation by foreign naturalization Expatriation by foreign oath Expatriation by foreign military service Expatriation by foreign governmental employment Expatriation by voting in a foreign political election or plebiscite Expatriation by formal renunciation of United States citizenship Expatriation by military desertion Expatriation based upon treason and subversive activity Expatriation resulting from action to evade military service App. A Attorney General's statement of interpretation concerning expatriation of United States citizens of January 18, 1969 App. B State Department Airgram of May 16, 1969, Afroyim decision App. C State Department Airgram of November 13, 1969, Afroyim decision App. D State Department Airgram of August 27, 1980, Terrazas decision Expatriation in the absence of elective action by persons acquiring dual nationality at birth prior to repeal of section 350

3 350.2 Repeal of section 352 by Act of October 10, Restrictions upon expatriation Expatriation resulting from foreign residence Repeal of section 352 by Act of October 10, Past exemptions relating to expatriation based upon foreign residence (generally) Repeal of section 353 by Act of October 10, Past exemptions relating to expatriation based upon foreign residence (statutory development) Repeal of section 354 by Act of October 10, Loss of nationality through parent's expatriation in the absence of elective action by dual national offspring prior to the Act of October 10, Loss of nationality after the Act of October 10, Expatriation as an inherent right of the individual Expatriation of noncitizen nationals Application of treaties and conventions Diplomatic certificate regarding loss of nationality Certificate of nationality for foreign use Declaratory judgment Repatriation of persons expatriated by voting in a foreign state Application of the savings clause to nationality issues Click the "Back" button on your browser to view the previous screen

4 Interpretation United States citizenship. (a) (b) Birth in the United States. Birth abroad. (a) Birth in the United States. (1) Statutory development. Prior to 1866, absent any statutory or constitutional provision, it was generally held, under the common-law principle of jus soli (the law of the place), that a person born in the United States acquired citizenship at birth; this principle was incorporated in the Civil Rights Act of April 9, 1866, and, two years later, found expression in the Fourteenth Amendment to the United States Constitution, which provides that all persons born in the United States, and subject to its jurisdiction, are citizens of the United States. The above constitutional provision has remained in effect ever since, and is restated in this section. 1/ (2) "United States" defined. Prior to January 13, 1941, the term "United States" included the continental mainland, Hawaii after August 11, 1898, 2/ Alaska, upon its formal incorporation into the Union on March 30, 1867, 3/ but not Puerto Rico. 4/ The Philippine Islands have never been deemed to be part of the United States within the purview of the 14th Amendment. 4a/ The territorial limits of the United States were extended on January 13, 1941, to include Puerto Rico and the Virgin Islands, 5/ and the current statute has added Guam to this definitive grouping 6/ In addition to the land areas mentioned above, ports, harbors, bays, enclosed sea areas, and a three-mile marginal belt, along the coasts thereof, form a part of the territorial limits of the United States. 7/ Notwithstanding the position taken in the second paragraph under INTERP 316.1(b)(2)(i) and in INTERP 329.1(c)(3)(ii), Midway Islands is not and never has been considered a part of the "United States" in the sense that United States citizenship is or was acquired at birth therein under the Fourteenth Amendment to the United States Constitution, or any of the various statutory provisions which have conferred citizenship upon such basis. (3) Effect of parents' status. Alienage of a child's parents does not preclude his acquisition of citizenship jus soli nor did their racial ineligibility for naturalization under former laws have such result. 8/ Additionally, acquisition of citizenship is not affected by the fact that the alien parents are only temporarily in the United States at the time of the child's birth. (4) Children of foreign diplomats. (i) Foreign diplomatic officers. Children of "foreign sovereigns" or "foreign diplomatic officers" accredited to the United States, who as a matter of international law are not subject to its jurisdiction, do not acquire citizenship in accordance with the jus soli doctrine. The term "foreign sovereigns" includes any head of a foreign state on an official visit to this country. The term "foreign diplomatic officers" refers to persons listed in the State Department Blue List, otherwise termed the Diplomatic List, and includes ambassadors, ministers, charges d'affaires, counselors, secretaries of embassies and legations, attaches, 9/ and other employees of embassies or legations; that term also includes persons with comparable diplomatic status and immunity who are accredited to the United Nations. (ii) Foreign government employees. Foreign government employees with limited or no diplomatic immunity, such as consular officials named on the State Department list entitled "Foreign Consular Officers in the United States" and their staffs are not within the term "foreign diplomatic officers;" therefore, their children are born subject to the jurisdiction of the United States.

5 Employees of foreign diplomatic missions whose names appear on the State Department White List, otherwise known as the List of Employees of Diplomatic Missions Not Printed in the Diplomatic List, enjoy certain diplomatic immunities; however, since those immunities do not extend to their families, their children are born subject to the jurisdiction of the United States. This last rule also prevails with respect to children whose parents are employees of foreign missions accredited to the United Nations or foreign diplomats accredited to another foreign state. (5) Birth on foreign public vessels. Persons born on foreign public vessels, such as warships, are not born subject to United States jurisdiction even though born in territorial waters. (6) Indians. Tribal Indians, born in the United States, originally regarded as members of foreign nations for many purposes, generally considered to be without the jurisdiction of the United States and did not benefit from the constitutional grant of citizenship. 10/ However, certain Indians acquired citizenship by special legislation, 11/ and under the Act of June 2, 1924, the 1940 Act, 12/ and current section 301(a)(2), Indians born in the United States after June 1, 1924, acquired citizenship at birth. The Act of June 2, 1924, also conferred citizenship, as of such date, upon all noncitizen Indians previously born in the United States. (7) Foundlings. Under the Nationality Act of 1940, a "child" of unknown parentage, if found within the United States after January 12, 1941, and before December 24, 1952, was presumed to be a native-born citizen until shown to have been born outside the United States. 13/ A "person" whose parentage is similarly unknown, if found in the United States after December 23, 1952, while under 5 years of age, is conclusively presumed to be a native-born citizen, unless such person's birth outside the United States is established before he or she attains majority. 13a/ Prior to Nationality Act of 1940, the statutes contained no provision governing the status of the founding. 14/ (8) Inhabitants of states admitted into the Union. (i) The 13 original states. Any person who was "one of the people" (a member) of one of the original states when the United States Constitution was adopted became thereby a citizen--a member of the nation created by its adoption. 14a/ (ii) Criteria for determining citizenship in subsequently admitted states. The Constitution of the United States provides that new states may be admitted by Congress into the Union. 14b/ Admission on an equal footing with the original states, in all respects whatever, involves equality of constitutional right and power. 14c/ Such admissions involves the adoption as citizens of the United States of those whom Congress makes members of the political community and who are recognized as such in the formation of the new state with the consent of Congress. 14d/ Therefore, in determining questions of citizenship, it is necessary to consult the organic acts of the territories and the related Congressional enabling acts to determine who are "members of the political community" and recognized as such in the formation of the new state. (iii) Determinations relating to Texas and California. Prior to the admission of Texas into the Union on December 29, 1845, and California on September 9, 1850, they were sovereign states, independent of the United States. The courts have held that all persons who were citizens of Texas at the time of its admission became citizens of the United States 14e/ and, administratively, it has been determined that the same rule will apply in the case of California. (iv) Determinations relating to territories. While some inhabitants of territories admitted as states already were United States citizens before such admission, other inhabitants were not. By specifying what qualifications the inhabitants of a territory must possess in order to exercise political rights, the enabling acts passed by Congress usually have offered guidance as to which inhabitants should be regarded as "members of the political community" and, therefore, United States citizens upon admission of the territory to statehood.

6 Persons who were citizens of the Territory of Orleans, became United States citizens upon the admission of that Territory as the State of Louisiana, 14f/ although one court limited the rule's application to those persons who were inhabitants of the Territory at the time of the cession treaty with France, proclaimed October 21, g/ Cases concerned with the admission to statehood of Montana, 14h/ Nebraska, 14i/ Washington, 14j/ and Wyoming 14k/ have been the subject of decision. The organic acts of these Territories, and the enabling acts relating to them, extended suffrage not only to United States citizens, but also to aliens who had made declarations of intention. Thus, upon the admission of these Territories to statehood, resident declarant aliens became citizens of the United States. 14m/ A discussion of some value concerning the admission of Michigan to statehood also is found in Boyd v. Nebraska. 14n/ The organic law of the Territory of Dakota 14o/ and enabling act providing for the admission of both North and South Dakota to statehood 14p/ described as qualified voters those male persons over twenty-one who were residents of the Territory for prescribed periods, and who either were United States citizens, or persons who had made declarations of intention and taken an oath to support the United States Constitution. Accordingly, it has been held that an alien who was a resident and qualified voter in that part of the Dakota Territory which became the State of South Dakota, at the time of its admission to statehood, thereupon became a citizen of the United States. 14q/ The organic and enabling 14r/ acts relating to the Territory of Utah conferred suffrage rights upon resident United States citizens, but granted neither citizenship nor voting rights to resident aliens. Absent such a grant, the mere residence of an alien in the Territory at the time it was admitted to statehood, did not invest the alien with United States citizenship, even though he may have previously filed a declaration of intention to become a citizen. 14s/ Under the organic act of the Oklahoma Territory, 14t/ a qualified elector had to be a male citizen of the United States over twenty-one years of age, or a foreign-born male person over such age who had within 12 months prior thereto made a declaration of intention to become a citizen. However, since the enabling act relating to the Territory 14u/ did not provide for the exercise of suffrage by alien declarants, they were not made "members of the political community" and, therefore, did not become United States citizens when Oklahoma was admitted to statehood. 14v/ (b) Birth abroad. (1) Statutory acquisition by legitimate children. (i) General principles. Individual and somewhat different legislative enactments dating back to the Act of March 26, 1790, 15/ have applied a concept of citizenship based upon the principle of jus sanguinis (the right of blood) under which citizenship is conferred at birth 15a/ upon children born to citizens abroad. While the prerequisites of the various statutes differ, common to all are the requirements that the parents through whom citizenship descends must be United States citizens at the time the child is born and must have resided in the United States prior to the child's birth, 15b/ in citizen or alien status. 15c/ In order to determine whether a person acquired citizenship at birth abroad, resort must be had to the statute in effect at the time of birth. 15d/ The statues, if not expressly declared therein, have been construed to be prospective in their application, 15e/ unless expressly made retroactive. 15f/ Although these earlier statutes have been replaced, 15g/ citizenship rights acquired thereunder have been preserved. 15h/ (Revised) Also of general application under the statutes is the rule that expatriation of the source parent or parents subsequent to the birth of the child does not destroy the status created, 16/ provided the child takes affirmative action to retain citizenship when required to do so by law. 17/ On the other hand, judicial revocation of the source parent's citizenship after the child's birth may have a material effect upon his status. 18/ The circumstances under which an illegitimate child, or a legitimated child, may acquire citizenship at birth abroad are considered in INTERP 309. (ii) Citizenship at birth abroad through a mother may vest retrospectively upon reversal of her expatriation by marriage under the principle in Afroyim v. Rusk. Where the sole basis for denying an otherwise valid claim to citizenship acquired at birth abroad on or after May 24, 1934, is a finding that the source parent, a citizen mother, expatriated herself by marriage 18a/ prior to the birth of the claimant, and such finding of citizenship loss is subsequently reversed in accordance with the Afroyim principle, 18b/ the claimant shall be regarded as a person who has acquired citizenship at birth abroad. In these circumstances, the resumption of citizenship by the mother

7 after the claimant's birth and before the reversal of citizenship loss cannot be considered as having conferred derivative status upon him as set forth in INTERP 320.1(e)(2), since he already was a citizen. (2) Prior to January 13, Under the early statutes, any person born abroad before January 13, 1941, to a United State citizen father who previously 19/ had resided in the continental United States, Alaska (after March 29, 1867), Hawaii (even before August 12, 1898), 20/ Puerto Rico (after April 10, 1899), 21/, and the Virgin Islands (after January 16, 1917), 22/ became a citizen at birth. 23/ Citizenship which did not descend through the citizen mother before May 24, 1934, 24/ descended through her as well, to children born on or after that date but before January 13, 1941, provided the mother had the previous residence described above. 25/ Under the above rules, a child acquired citizenship at birth in Puerto Rico, 26/ Guam, American Samoa, Swain's Island, Philippine Islands, 27/ Alaska (before March 30, 1867), Hawaii (before August 12, 1898), Virgin Islands (before February 25, 1927), the Canal zone (before August 4, 1937), in any foreign country, and even in the continental United States, 28/ provided, in this last instance, that the child had an alien parent who was a foreign diplomatic officer duly accredited to the United States. (3) Nationality Act of (i) General. From January 13, 1941, through December 23, 1952 (effective period of the Act of October 14, 1940), children born outside the continental United States, Alaska, Hawaii, Puerto Rico, the Virgin Islands, America Samoa, Swain's Island, Guam, (and the Philippines before July 4, 1946), 29/ of United States citizen parents, acquired citizenship at birth, provided one parent previously had resided therein. 30/ A similar citizenship status was acquired during the 1940 statutory period if one parent was a United States citizen and the other a national of the United States, provided the citizen parent had a like residence prior to the birth of the child; 31/ or, if one parent was an alien and the other a United States citizen, who, prior to the birth of the child had a similar residence for ten years, at least five of which are after attaining the age of sixteen. 32/ Within the meaning of this last requirement, a citizen parent reaches the age of sixteen years on the 16th anniversary of his birthday. 32a/ A child of a citizen, his other parent being an alien, born in the Philippine Islands during the 1940 statute's effective period, but on or after July 4, 1946, when those islands attained their independence, also acquired citizenship under section 201(g) if the citizen parent had completed the requisite period of residence in those islands during the time that the United States exercised rights of sovereignty over them since they were within the definition 33/ of an outlying possession. 34/ (ii) Section 201(i); military service. Obviously, under section 201(g) described above, it was impossible to fulfill the five-year residence requirement after age sixteen years, where the child was born when the citizen parent was less than twenty-one years old. 35/ This led to the enactment of remedial legislation on July 31, 1946, 36/ on behalf of children of parents who had served honorably in the armed forces of the United States during the period prescribed therein. (Revised) Section 201(i), in effect, modified section 201(g) to permit five of the required ten years of residence to be established after the citizen parent arrived at the age of twelve years, instead of sixteen years. This legislation is construed as being retrospective and as conferring citizenship on a child born before the date of enactment, July 31, 1946, and after January 12, 1941, where the citizen parent had the required residence and had served honorably after December 7, 1941, and before the termination of hostilities on December 31, 1946, as well as prospective as to children born before December 24, / The legislation is applicable, notwithstanding that the parent's military service commenced after birth of the child. (Revised) A citizen parent given an "other than honorable discharge" after service during the prescribed period lacks the honorable service contemplated by section 201(i). It is the Service view that a discharge characterizes the entire period of service and that the nature of the service is established by a duly authenticated certification from the executive department under which the parent served. 37a/ (Repositioned and revised)

8 (iii) Birth in outlying possessions. After January 12, 1941, and through December 23, 1952, a child born in American Samoa, Swain's Island, Guam, (and the Philippines prior to July 4, 1946), 38/ to a United States citizen parent who previously had resided in one of these enumerated outlying possessions or in the continental United States, Alaska, Hawaii, Puerto Rico, or the Virgin Islands, also acquired citizenship at birth. 39/ (4) Immigration and Nationality Act. (i) Provisions and their application, generally. The Immigration and Nationality Act 40/ substantially reenacts the statutory provisions in effect since January 13, 1941, and, unless otherwise so provided (see Act of March 16, 1956), will determine the citizenship status of persons born on or after December 24, / (ii) Military service abroad as physical presence under the proviso to section 301(a)(7). Under the proviso, active service alone shall be counted as physical presence in the United States. Within this context, members of a military reserve unit shall be regarded as being physically present in the United States only during such periods of absence as they may be actually engaged in active military duty or related activity as members of the armed forces of the United States. (iii) Acts of March 16, 1956, and November 6, Upon meeting conditions specified in the 1956 legislation, persons born abroad after January 12, 1941, and before December 24, 1952, acquired citizenship retrospectively under current section 301(a)(7) in its originally enacted form. However, only those persons who were born on or after December 24, 1952, shall be regarded as eligible to acquire citizenship based upon the new constructive physical-presence provisions, which the Act of November 6, 1966, added to the proviso in section 301(a)(7). Accordingly, while a person claiming citizenship under section 301(a)(7), by reason of the Act of March 16, 1956, may count his citizen parent's honorable service in the Armed Forces as physical presence in the United States, within the meaning of the section, he cannot base his citizenship claim upon the new aspects of constructive physical presence set forth in the 1966 enactment. (iv) Honorable military service required by the Act of March 16, While the 1956 Act requires the citizen parent to have "served" after December 31, 1946, and before December 24, 1952, without specifying whether or not such services must be "honorable," the Service holds that the citizen parent must have "served honorably" in order to transmit citizenship under the statute. 41a/ The legislative history 41b/ and wording of the 1956 statute plainly indicate that, in part, the enactment was designed to confer citizenship upon children unable to acquire such status under section 201(i) of the Nationality Act of 1940, as amended, because their citizen parents served after December 31, 1946, and not during the World War II period (December 7, 1941, to December 31, 1946) as required. It is an express prerequisite of section 201(i) that the citizen parent "serve honorably" during the requisite period. An inconsistency which would require honorable service in the one instance and not in the other, and which would have the effect of granting the peacetime serviceman greater benefits than the wartime serviceman cannot be attributed to Congress. It is also inconceivable that the Congress could have intended to reward dishonorable service with special benefits. Rather, one notes that military service must be "honorable" if it is to be counted as physical presence in the United States for purposes of current section 301(a)(7), the statutory provision under which beneficiaries of the 1956 enactment actually become citizens. Similarly, in all other sections of the current law providing special benefits based upon military service, "honorable" service is a prerequisite. Nowhere is there anything to indicate that Congress wished to abandon this basic legislative policy when the Act of March 16, 1956, was drawn and passed. 41c/ Aside from the above reasons for the Service viewpoint, to assume a position contrary to that taken could also give rise to absurd situations. For example, a citizen parent who was a member of the armed forces on December 31, 1946, the end of the World War II period, and who was not entitled to section 201(i) benefits because his service during the period had not been honorable, would become immediately eligible to transmit citizenship under the 1956 statute on the very next day, even though he may then be given a dishonorable discharge.

9 (v) Residence, physical-presence (Philippine Islands). For purposes of the cited sections 41d/ of this Act, physical presence or residence in the Philippine Islands at any time is not physical presence or residence in the United States. 42/ However, such physical presence after April 10, 1899, 43/ and before July 4, 1946, is physical presence in an outlying possession of the United States for the purposes of section 301(a)(7) of the current statute. 44/ (5) Nature of parent's residence, physical presence. (i) Residence under section 1993, Revised Statutes. In the absence of a statutory definition of residence, the term lacked exact legal meaning and at times was used synonymously with domicile but on other occasions was deemed to be something less than domicile and involved physical presence in a certain location without requiring the intention to make it one's home, which intention was a requisite in the domicile concept. 45/ Domicile was not considered decisive of residence, which had to be understood in connection with the concept of the statute employing its usage. 46/ The word "resided" as used in section 1993, Revised Statutes, was construed to mean "lived" in the United States, 47/ and it was administratively determined that physical presence alone in the United States was sufficient to establish prior residence. 48/ Accordingly, prior to January 13, 1941, any temporary physical presence of the citizen parent in the United States, even as a minor, 49/ or as an alien, 50/ or while exclusion proceedings were pending, 51/ which preceded the birth of the child, 52/ other than a mere transit presence of a few hours, 52a/ satisfied the residence requirement. 52b/ (Revised) (ii) Residence under the Nationality Act of 1940 and the Immigration and Nationality Act. From January 13, 1941 and through December 23, 1952, residence was statutorily defined, 52c/ as the "place of general abode," and a person's "place of general abode" was by regulation 52d/ defined as his "principle dwelling place." Thus, something more than the temporary presence sufficient under section 1993, Revised Statutes, was required, 52e/ and a technical domicile did not suffice in the absence of the necessary principle dwelling place. 52f/ This statutory definition of residence precluded any inference that the actual residence of a parent could be imputed to a child. 52g/ In contrast to such terms as "temporary residence," "domicile", or "permanent residence." the definition as plainly as possible denoted an objective fact, 52h/ and excluded as a factor any subjective intent. 52i/ The Supreme Court in Savorgnan held that a person's residence under the Nationality Act was his place of general abode, which meant his principal dwelling place in fact, without regard to intent. 52j/ However, implicit in the term "principal" is a recognition of factual gradations that admit of multiple stop-places, just as "general abode" recognizes the possible existence of other specific habitations not so qualified. Actual residence is not synonymous with physical presence. It is a question of fact in each instance 52k/ as to which is a person's "principal place of dwelling" and Savorgnan does not restrict such determinations to external conduct only but consideration is also to be given to all the surrounding circumstances. 52m/ Under the last rule mentioned above, temporary visits to the United States by a child's citizen parents were not sufficient to confer citizenship under section 201(c) of the 1940 Act. 52n/ On the other hand, temporary absences did not preclude the citizen parent from satisfying the statutory residence requirements; 52o/ nor did protracted absence due to circumstances over which the person had no control, such as family illness coupled with a maritime strike, 52p/ or intervening war, 52q/ disrupt a previously established United States residence. 52r/ Absence as a member of the United States Armed Forces did not cause a break in residence as such absence was counted as residence in this country. 52s/ Continuous stays in the United States as a college student for almost three years 52t/ or while attending a boarding school for nine months have also been held to be residences in the United States for purposes of section 201(g) of the 1940 Act. 52u/ (iii) Constructive residence (official misinformation). Where an initial finding was made that a United States citizen mother of two illegitimate children should be credited with constructive physical presence in the United States for retention-of-citizenship purposes, because a previous official determination of citizenship loss. subsequently reversed as erroneous, prevented her entry to accumulate the actual physical presence mandatorily required for retention under former section 301(b), 52v/ it was further held that she must necessarily be regarded as having had constructive physical presence for related purpose of transmitting citizenship to children under section 309(c) of the Act, 52w/ even though such children were conceived and born after her erroneous exclusion as a noncitizen. (Revised)

10 Similarly, upon the same basic premise of official error, a native-born citizen who was take to Mexico to reside in 1929 at age 5, who was erroneously denied readmission to the United States by a Service officer in 1932 and again in 1933 or 1934, and who did not attempt to reenter the United States until well after he had attained majority, had married, and had a son born in Mexico, was held to have accumulated constructive residence in the United States prior to his son's birth, and such residence was regarded as sufficient for the transmittal of citizenship to the son under section 201(g) of the Nationality Act of x/ [Redesignated: formerly subpar. (ii)] (iv) Physical presence. The Immigration and Nationality Act has substituted a physical-presence prerequisite for the above former residence requirements, except when both parents are United States citizens at the time of the child's birth, 53/ in which event residence 54/ becomes a factor, As here used, the term "physical presence" has its literal meaning, and "residence" (a place of general abode or principal dwelling place in the United states) is not required. [Redesignated; formerly subpar. (iii)] (v) Continuity of physical presence under currant sections 301(a)(4) and (5). Whether an absence will be regarded as having broken the required continuity of a parent's physical presence in the United States or an outlying possession, thereby precluding the transmittal of citizenship at birth under the captioned sections, shall be determined in accordance with INTERP 316.1(c)(3). [Redesignated; formerly subpar. (iv)] (6) Retention requirements. (i) Prior statutes. It having been determined that noncompliance with section 6 of the Act of March 2, 1907, resulted in loss of diplomatic protection only, 55/ it may be stated that the statutes prior to the Act of May 24, 1934, imposed no conditions for retention of status upon the foreign-born child who acquired citizenship under their provisions. 56/ Until December 24, 1952, a child born subsequent to May 24, 1934, and prior to December 24, 1952, who became a citizen at birth abroad through but one citizen parent, the other parent being an alien, was required by statute to have a place of general abode in the continental United States, Alaska, 57/ Hawaii, Puerto Rico, the Virgin Islands, American Samoa, Swain's Island, Guam, or (the Philippines before July 4, 1946), for periods totaling five years between the ages of 13 and 21 under pain of citizenship loss, 58/ unless the citizen parent, at the time of the child's birth, was abroad because of specified American employment. This retention requirement and the exemption therefrom are in section 201(g) of the Nationality Act of 1940 and, pursuant to the terms thereof, the requirement and exemption applied to a person who became a citizen under that section. Moreover, by reason of section 201(h) of the said statute, the same retention requirement and exemption were also applicable when citizenship was acquired subsequent to May 24, 1934, under the earlier statute of that date, 58a/ if citizens in the two categories mentioned were eligible for the exemption, they were not subject to any retention requirement. However, while the same retention requirement applied to citizenship acquired under section 201(i) of the 1940 Act, as amended, the exemption therefrom based upon the parent's employment abroad had no application, for the terms of section 201(i) made no provision therefor. (Revised) The required place of general abode, as above, could have been established before December 24, 1952, on the sixteenth anniversary of the child's birth 59/ or even shortly thereafter, if, following diligent effort to come to the United States, timely arrival was delayed by the failure of consular officer to furnish the necessary documentation. 60/ Further, it was clear that where the child took up residence (established a place of general abode) in the United States before age 16 and December 24, 1952, the five-year period during which such place of abode must be maintained for retention under section 201(g) and (h) of the Nationality Act of 1940 can be completed before, on, or after December 24, 1952, the effective date of the Immigration and Nationality Act. 61/ (Revised) Under the I & N Act, prior to its amendment on October 27, 1972, a child who acquired citizenship at birth abroad through but one citizen parent, the other parent being an alien, was required to be continuously physically present in the United States for a period of 5 years between the ages of 14 and 28 years in order to retain citizenship. 62/ (Revised) By amendment 63/ effective October 27, 1972, the 5-year period was then reduced to a period of 2 years and was waived in its entirety if the alien parent was naturalized while the child was under the age of 18 years and the child

11 began to reside permanently in the United States while under the age of 18 years. (Revised) (ii) Establishment of "residence" and "physical presence" for retention purposes prior to the repeal of section 301(b), (c) and (d). 63a/ Satisfaction of the physical presence requirements, both before and after amendment of section 301(b), did not require establishment of a "residence" in the United States within the meaning of section 101(a)(33) of the current Act. The physical presence contemplated was computed upon the basis of the time the citizen was actually in the United States, even though no intention existed to reside permanently in the United States. Moreover, the fact that the citizen established a "residence" in this country within the meaning of the term in section 101(a)(33) did not eliminate the necessity for literal compliance with the physical presence requirement. 64/ (Revised) On the other hand, when exemption from the physical presence requirement was claimed under the amendment to section 301(b) by reason of the naturalization of the alien parent, mere physical presence in the United States, without more, did not satisfy the statutory condition that the child begin to reside permanently in the United States before age 18 years. Eligibility for the exemption attached only at such time as the surrounding facts and circumstances attendant upon the child's physical presence showed that it was coupled with a bona fide intention to reside permanently in the United States, as evidenced by establishment of a principal dwelling place in the United States, permanent in nature rather than temporary, limited, or uncertain. (Revised) When permanent residence status was begun before the alien parent was naturalized, that status had to be obtained on the day of the naturalization of the alien parent to qualify the child for the exemption from the physical presence requirement. Once exempt status vested upon fulfillment of the two conditions before the age 18 years, it was not terminated or lost by a subsequent change in circumstances or conditions which resulted in the abandonment of the previously established permanent residence. (Revised) (iii) Computation of physical presence where citizen lacks knowledge of citizenship. A citizen under age 28 years who was subject to retention requirements who did not become aware that he was a United States citizen until he had passed the age of 23 years or 26 years, whichever age was applicable, was not by reason of failure to comply with the retention requirements divested of his citizenship until he had a reasonable opportunity to come to the United States, after first having learned of his citizenship, to complete the balance of the period to age 28 years, and failed to do so. 65/ (Revised) Upon making such a timely entry, the citizen is regarded as having been constructively physically present in the United States from immediately prior to his 23rd or 26th birthday, as applicable, and as having fully complied with the retention requirements when his constructive physical presence and actual physical presence prior to age 28 years total 5 years or 2 years, as applicable. 66/ When awareness did not come into existence in time to permit entry to be made before age 28 years, it was no longer possible to literally satisfy the retention requirements and no physical presence at all in the United States was required to retain citizenship. 66a/ (Revised) (iv) Computation of physical presence under section 16, Act of September 11, This statutory provision 67/ provided that, for purposes of the 5-year retention provision under section 301(b), absences during "the period for which continuous physical presence in the United States is required" shall not be considered as breaking the requisite continuity of such physical presence, provided the absences total less than 12 months in the aggregate. (Revised) The first reported administrative decision applying the 1957 provision involved a citizen who first came to the United States on May 10, 1952, when he was 17 years of age, and remained actually physically present in this country continuously until May 10, 1957, except for an absence of 26 days in July The Service held in this case that, by reason of section 16 of the 1957 enactment, such absence did not break the continuity of the citizen's physical presence, and that he therefore had completed 5 years' continuous physical presence in the United States on May 10, 1957, and had fulfilled the retention requirements of former section 301(b). It is apparent that the Service regarded the period of absence as constructive physical presence in the United States, although no precise statement to such effect appears in the decision. 68/ (Revised)

12 The first reported case in which the Board of Immigration Appeals applied the provision held that a citizen who resided permanently in Mexico and commuted daily to an employment in the United States from 1953 until he established a "residence" here in 1961, when he had passed his twenty-third birthday by 37 days, was in a position to satisfy the physical presence requirement for retention. Noting that the citizen's absences following his last coming prior to age 23, when he entered as a commuter, did not aggregate 12 months, the Board regarded him as having had continuous physical presence here since such coming and the ability to complete the required 5-year period of continuous physical presence before his 28th birthday. 69/ The possibility of counting permissible absence as constructive physical presence was not raised or discussed in the case. Rather, the record tends to indicate that the Board decided the case in the citizen's favor based upon its conclusion that he was in a position to accumulate actual physical presence for a full 5 years before he reached 28 years of age. 70/ It was contended in a later case before the Board of Immigration Appeals that the words "the period for which continuous physical presence in the United States is required," as they appear in section 16 of the 1957 legislation, refer to the period of 5 years' physical presence rather than to the period between ages 14 and 28 during which the 5 years' physical presence must be accumulated. Upon such basis, it was further argued that absences aggregating less than 12 months within an otherwise continuous 5-year period should be regarded as constructive physical presence in the United States and should be combined with actual physical presence during the period to make up the required 5 years. 71/ However, the Board found it unnecessary to decide whether the theory advanced, or the actual physical presence (compensation) theory discussed in the paragraph just above, represented the correct interpretation of section 16, since the facts in the case were such that the citizen involved would retain under either theory. 72/ The Board of immigration Appeals has never resolved this question of construction. Accordingly, prior to the repeal of section 301(b), the Service applied the constructive physical presence theory. 73/ For this purpose, any absences aggregating, or any continuous absence of, less than 12 months within an otherwise continuous five-year period of physical presence between ages 14 an 28 were counted as constructive physical presence, even though such absences or absence occurred during the first year after a coming to the United States immediately prior to age 23, or during the last year of the five-year period which began with such coming. Moreover, although the Service initially held under the theory that the retention requirement was not satisfied until the citizen's actual and constructive physical presence during the applicable five-year period totaled a full five years, it was later the Service position until the repeal of section 301(b) on October 10, 1978, that the citizen had met the requirement when his actual physical presence during such five-year period totals four years and one day. Thus, for example, a citizen who first came to the United States just prior to his 23rd birthday and then departed from the United States after accumulating actual physical presence for a continuous period of four years and one day was regarded as having satisfied the retention requirement on the date of his departure. Under the earlier position, the finding could not have been entered for 364 days. However, this does not mean that the citizen could delay his coming to the United States for up to less than 12 months beyond age 23 years and still satisfy the retention requirements. The 1957 Act contemplated only "absences" occurring after the citizen has first come to the United States and not "absences" in the broad sense that the citizen had never been to the United States. (Revised) Under rules in INTERP 316.1(c)(3) periods of physical presence in the United States, although statutorily required to be continuous or uninterrupted, are held not to have been broken by absence from the United States. 74/ However, since Congress in the remedial legislation of September 11, 1957, specifically stated when absence would not break the continuity of the 5-year period of continuous physical presence required for retention of citizenship, the Service held that the rules in INTERP 316.1(c)(3) had no application to former sections 301(b) and (c) of the Act. (Revised) (v) Computation of physical presence under former section 301(b), as amended. 75/ This amendment provided that, for retention purposes, absences from the United States of less than 60 days in the aggregate during the required 2 years of continuous physical presence did not break the continuity of such physical presence. In the computation of the 2 years of physical presence, the interpretations and views expressed in subdivision (iv) applied. (Revised) (vi) Effect of absence abroad with the armed forces upon the continuity of physical presence for retention. Absence abroad in the armed forces of the United States did not interrupt the continuity of the required physical presence, and periods of such absence counted as physical presence for purposes retention. 76/ However, within this context, members of a military reserve unit were regarded as having been physically present in the United States for

13 retention purposes only during such periods of absence as they were actually engaged in active military duty or related activity as members of the armed forces of the United States. (Revised) (vii) Applicability to birth after May 24, The former retention provisions of the current Act, 77/ in effect both before and after amendment, are applicable 78/ to the foreign-born child who acquired citizenship at birth abroad after May 24, 1934, and before December 24, 1952, to one citizen and one alien parent. 79/ (Revised) It had been held initially that failure to comply with the retention provisions of the 1940 Act by taking up timely residence in the United States before December 24, 1952, resulted in loss of citizenship and that no benefit was derived by these persons from original section 301(b) of the former statute. 80/ The view after the passage of the Act of held that citizenship was retained by those persons who came to the United States before October 27, 1972, 81/ and who, either before or after that date, complied with the 5-year physical presence provisions of former section 301(b). 82/ Failure to comply with section 201(g) was not regarded as having resulted in any interruption of citizenship status. However, except as otherwise provided in the next succeeding paragraph and in subdivision (viii) below, such persons had to comply fully with the provisions of original section 301(b), since that section did not authorize an exemption 83/ from the retention requirements. (Revised) By virtue of the provisions of former section 301(c) and the absence of a provision in the amendatory legislation declaring its provisions of former section 301(c) and the absence of a provision in the amendatory legislation declaring its provisions to be in applicable to persons who had theretofore already lost citizenship by failure to satisfy the retention provisions, it was likewise the view that a person who lost citizenship prior to October 27, 1972, upon failure to satisfy retention requirements, but who nevertheless already had sufficient physical presence to meet the requirements of the amendatory legislation or who met those requirements after October 27, 1972, was regarded as never having lost citizenship status, and as not having interrputed his citizenship status. The same view prevailed in such cases when the amendatory retention requirements were satisfied by the timely naturalization of the alien parent. 84/ (Revised) (viii) Failure to comply; misinformation. A person who, under the earlier interpretation (see (vii) above) and while still under 23 years of age, was informed on or after June 27, 1952, either directly or through a member of his family, by a government officer whose duty it was to inform him, that he was not a citizen of the United States because of his failure to comply with section 201(g) was regarded as having been misinformed. If, because of reliance on this misinformation and without any lack of due diligence on his part, such a person applied for documentation after he was 23 years of age and expeditiously proceeded to the United States, he was regarded as having constructively made a timely arrival in the United States within the meaning of former section 301(b). 85/ (Revised) In determining whether there was any lack of due diligence in coming to the United States, within the above context, consideration was given to the fact that information regarding the current interpretation was disseminated to the public abroad by the State Department as early as January (Revised) If, however, the advice as to loss of citizenship under section 201(g) was given before June 27, 1952, and was not repeated on or after that date, the person had not been misinformed and had to make application for documentation in sufficient time to permit him to come to the United States before 23 years of age; otherwise, citizenship was forfeited. An exception was made if the application for documentation was timely and the failure to arrive in the United States until after 23 years of age was the result of delay by the government in issuing documentation. Under these circumstances, also, the person was regarded as having constructively made a timely arrival in the United States. 86/ (Revised) The foregoing principles regarding retention of citizenship remained applicable and citizenship was preserved by compliance with them notwithstanding the fact that before his arrival in the United State the person involved performed an expatriating act in reliance upon the misinformation furnished by the government official that citizenship had been lost under section 201(g). 86a/ (Revised) (ix) Failure to comply; ignorance of retention requirements. In contrast with the effect of ignorance of citizenship status upon retention requirements, 86b/ a person who was aware that he acquired United States citizenship