Q. Is my cousin a U.S. citizen? Can he be deported? Immigration took my cousin into custody after a criminal conviction. He is 25 years old. His mother became a U.S. citizen when he was 15 or 16, and he already had his green card by then. Did his mother’s naturalization make him a U.S. citizen? His father is a still a permanent resident. - Mario Flores, New York
A. If your cousin turned 18 on Feb. 27, 2001, or after, and was a permanent resident before turning 18, he is a U.S. citizen. That means that Immigration cannot deport him. If he turned 18 before Feb. 27, 2001, he is not a U.S. citizen unless his parents separated before he turned 18.
The rules for getting automatic (derivative) citizenship vary depending on when the parent(s) naturalized. Children who turned 18 on or after Feb. 27, 2001, get citizenship automatically when they have met all of the following conditions:
Children, who turned 18 before Feb. 27, 2001, automatically became U.S. citizens if: (1) a parent naturalized before the child turned 18, (2) the child became a permanent resident before turning 18 and (3) the child was unmarried, and the child met one of the following conditions:
The order of events makes no difference. If a child is a permanent resident and under 18, and then a parent naturalizes, the child gets automatic citizenship. If the parent was born in the U.S. or naturalizes, and the child gets permanent residence, the child becomes a U.S. citizen the moment he or she becomes a permanent resident, if that happens before the child is 18.
Death is factor in immigration
Q. My brother died before he and his family could immigrate. How can his wife and children get permanent residence? My brother in Trinidad got immigrant visas for himself, his wife and his four children. Just before they left for the U.S., my brother died. Our sister checked with the U.S. Consulate about whether the family could immigrate. When the U.S. consular officer learned of my brother’s death, he told the family that they couldn’t immigrate and noted the death in their passports.
- Ramsudar Mehan, Jamaica
A. For your sister-in-law to immigrate, she must qualify in a family- or employment-based category just like any other foreigner. Having been the spouse of someone who was about to immigrate gives her no special benefits. Your sister-in-law and your nieces were what the law calls derivative beneficiaries. That means that they derive or get their benefit from your brother, the primary beneficiary.
I have written that when a petitioner (the person who filed for your brother) dies, the beneficiary (in this case your brother) and his or her family can nevertheless sometimes get permanent residence. Sadly, that rule does not apply to derivative beneficiaries upon the death of a primary beneficiary.
Frequent flyer
Q. My friend’s mother last visited from Poland June 28, 2007. She stayed for six months. She wants to come back again in December. Do you anticipate she’ll have any problem? - Carol Dilg, New York
A. Assuming your friend’s mother left the U.S. before her six-month stay expired, I see no problem in her coming to visit again.
Each time the mother comes to visit the U.S., she must convince a U.S. inspector that she is a bona fide or genuine nonimmigrant. That means proving that she plans to depart within the time allotted her to be here, that she will not violate her visitor’s status – for example, by working - and that Poland remains her primary residence.
It is not unusual for a person to spend six months a year in the U.S. That’s permissible, provided he or she is maintaining a residence abroad and can prove that he or she need not work in the U.S.
Allan Wernick is a lawyer and chair of the City University of New York Citizenship and Immigration Project. He is the author of “U.S. Immigration and Citizenship - Your Complete Guide, Revised 4th Edition” Send questions and comments to Allan Wernick, Daily News, 450 West 33rd Street, New York, N.Y. 10001. Professor Wernick’s web site is www.allanwernick.com.
Allan Wernick’s Immigration column is reprinted from the Thursday, July 31 editions of the New York Daily News.
