Finding Out Your Client Is Not a U.S. Citizen, and What to Do Next

By: Theodore Ko

Estimated reading time: 7 minutes

What if a client rushes into your office and says they’ve only just learned they are not a U.S. citizen after living, working, and voting for the last 60 years in the United States? A recent case in Florida shows that this scenario is not an impossible one. If you’re an immigration attorney, the first thing you’ll need to do is sit down with the client and figure out their history as soon as possible, before key evidence and records are destroyed.

In the Florida case, a man only learned that he was not a U.S. citizen in the eyes of the federal government when the Social Security Administration notified him that he could not collect his social security benefits because of his lack of status. In this case, the man, named Jimmy Klass, thought he had been a citizen because his father was a U.S. citizen and that they had moved from Mr. Klass’s birthplace of Canada to the United States when Mr. Klass was only 2 years old in the 1950s.

The issue of someone’s citizenship acquired at birth from a U.S. citizen parent (as opposed to deriving citizenship upon a parent’s naturalization) is uncommon, but not necessarily rare. Many people know their citizenship status because they know they were born in the United States and have a birth certificate or U.S. passport to prove it. If a client does not have documented evidence of their otherwise assumed citizenship, you will need to go on a fact-finding mission. Arguably, most cases are resolved when a client knows they immigrated to the United States, but never officially applied for their citizenship. More often than not, it will turn out the client is already a citizen and merely needs to apply for their certificate of citizenship (United States Citizenship and Immigration Services (USCIS) Form N-600) or for their U.S. passport (a much more affordable option). However, in cases like Mr. Klass’s, the question of U.S. citizenship becomes more complicated because of needing to go back in time to his U.S. citizen father’s childhood.

The main question for a potential client like Mr. Klass is whether or not he validly derived citizenship from his U.S. citizen father. There is a multi-step evaluation that must be performed to determine how such a client can prove their citizenship:

1. When was client born?
2. Where was the client born?
3. Were the client’s parents married at the client’s birth?
4. What was the citizenship status of the client’s parents at the client’s birth?
5. If neither parent was a U.S. citizen when the client was born, did they become citizens before the client turned 18?

The first question is determining the client’s birthdate, because that will determine the applicable law. Immigration laws may have changed over time and older versions of immigration laws will apply depending on the specific facts of each derivation case. USCIS has published a series of charts to help determine the applicable law for the acquisition or derivation of citizenship. (See USCIS, Policy Manual, vol. 12, pt. H, ch. 3, Appendices tab.) Once the applicable law is determined, then the client will know the evidence they will need to provide to prove their valid acquisition of citizenship to USCIS.

However, when faced with any client whose immigration history is unclear or lacks documentary support, best practice would be to submit a Freedom of Information Act request for the client’s full immigration file from USCIS. While this means the client will have to wait a number of months before any real movement on their application can occur, it is better to get as full and accurate a picture of their immigration status as possible. If the client interview process reveals even the faintest hint of a criminal history, require the client to get fingerprinted to request their criminal background history. If the client suggests they may have a criminal history in multiple states, an FBI history may be a more prudent place to start to save on the costs of running multiple background checks.

None of these concerns may matter if the client validly derived citizenship from their parents. In the case of Mr. Klass, we know the following:

1. He was born after 1952, but before 1959.
2. He was born in Canada.
3. His parents were married when he was born.
4. His father was a U.S. citizen and his mother was a Canadian citizen.

Since Mr. Klass was born in Canada after his parents were married, we consult the chart for children born outside of the United States in wedlock. (See USCIS, Policy Manual, vol. 12, pt. H, ch. 3, Appendices, Chart 1.) We determine the applicable law by navigating the first column labeled “Period in Which Child was Born” and find the corresponding period. At that row (for Mr. Klass, it is the row labeled for birthdates on or after December 24, 1952, and before November 14, 1986), we then determine if one or both parents are U.S. citizens at the client’s birthdate. Since Mr. Klass’s father was the U.S. citizen, we now know that in order for USCIS to approve his Form N-600, Mr. Klass must show that his father was physically present in the United States for at least 10 years, at least 5 of which were after age 14.

From there, you must provide evidence of the U.S. citizen parent’s residency to USCIS to accompany the Form N-600 (among other required documents). This can be done by submitting copies of any of the following documents (Form N-600 Instructions):

1. School, employment, or military records;
2. Deeds, mortgages, or leases showing residence;
3. Attestations by churches, unions, or other organizations;
4. U.S. Social Security quarterly reports; and
5. Affidavits of third parties having knowledge of the residence and physical presence.

In a situation where you would need to reach back more than 50 years for records, it is best to gather and submit as much information as possible with the client’s application. The most effective evidence is anything that is official with dates. If the document lacks specific dates, its effectiveness as evidence of residence and physical presence is greatly diminished. Gather as many letters from family, friends, and coworkers that can testify to the residency requirement. Granted, with a case that reaches as far back as Mr. Klass’s father’s residency, that will be a difficult task.

Include a well-drafted letter explaining the situation, including the client’s history and the evidence submitted to meet the requirements of the application. While a cover letter is rarely dispositive on an application, it may assist the reviewing USCIS officer in understanding the client’s history and eligibility for acquisition.

There may be an interview after submission of the Form N-600, although in most cases there is no interview. Complex cases, such as Mr. Klass’s, likely warrant an interview. Under regular procedures, if USCIS believes that the evidence submitted with the Form N-600 and at the interview is insufficient to show that the client properly acquired citizenship, they will receive a Request for Evidence (RFE). The request will note where the application is insufficient, specifically state what further evidence is required, and a timeline (usually 30–60 days) to submit the RFE response. Always submit the RFE response a week early to compensate for mailing times. USCIS must receive the response by the deadline.

If the supplemental evidence is sufficient, the client should receive a notice to receive their certificate of citizenship. From here, the client should not have to worry about any conduct that violated immigration law (e.g., voting or working without valid status) because derivation means they were always a U.S. citizen and their conduct did not run afoul of immigration laws.

Form N-600 may only be submitted once. If the application is denied, the client’s options become limited to what is stated on the USCIS decision notice. This may include an opportunity to appeal, which will entail more expense. The client may also become deportable, but this will largely depend on the client’s criminal and immigration history. Their case may be referred to immigration court and they may need to spend years to resolve their case.

Faced with these mounting legal difficulties, it may seem easier to simply leave the United States and travel to a country where the client has status. This has its own risks, not least of which is the possibility of never returning to the United States. If the client does return, they will more than likely be placed in removal proceedings, if not denied entry immediately.

If there is any lesson to be gleaned from Mr. Klass’s case, it’s that if there’s any question as to a client’s citizenship or status, figure it out as soon as possible, before records and key evidence are destroyed.

© The Regents of the University of California, 2024.

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