DOS Issues Cable on Naturalization Provisions of INTCA

The Immigration and Nationality Technical Correction Act of 1994 (INTCA) provides for changes to the INA including the expeditious naturalization of children (section 322 INA); 2) restoration of U.S. citizenship for those who did not fulfil retention requirements (section 324 INA); and 3) repeal of the "fraudulent naturalization" section (section 340(d) INA). It announces the Dept's implementing procedures for these amend the FAM will be updated accordingly, in the interim, please cable appropriately with post FAMS.

Naturalization of Children on Application of Citizen Parent

This provision is a naturalization process and therefore is administered by the Immigration and Naturalization Service. The Department's role is very limited. INS has informed the Dept that regulations implementing new section 322 INA will not be in effect on March 1, 1995. They expect to have regulations in place by May 1995. INS will, however, provide applications and information to applicants. Posts should provide the following address to applicants who inquire about citizenship adjudications pursuant to 322 INA:

Chief of Naturalization Branch
INS Headquarters
425 I Street, NW, Room 3214
HQADN
Washington, DC 20536

INS will then send application and instructions to inquirer.

Section 322 INA allows a U.S. Citizen parent who was unable to transmit U.S. citizenship to a child born aboard as a result of an inability to satisfy the transmission period requirement, to apply for the expeditious naturalization of that child. One of two prerequisites must be satisfied. Either 1) the child must be residing permanently in the U.S. with the citizen parent pursuant to a lawful admission (the "old section 322) or 2) for a child residing abroad), a citizen parent of the citizen parent child's AMCIT grandparent) must have been physically present in the U.S. or its outlying possessions for a period or periods totalling not less than five years, at least two of which were after attaining the age of fourteen years. The amendment to section 322 provides the AMCIT Grandparent's physical presence in the U.S. to allow for the expeditious naturalization of a child without LPR status.

Once INS has its program in place; it is envisioned that the following process will be instituted:

A) Applicant forwards a section 322 INA application (N-600 application for certificate of citizenship), along with supporting documents, to one of the 51 INS field offices in the U.S.;

B) INS determines whether applicant is eligible, approves application, and then forwards a letter and naturalization appointment date to applicant.

C) Applicant presents the INS approval and appointment letter to post.

D) Post issues a B-2 visa to applicant (see 9 FAM 41.31, Note 11.5).

This process will allow parents to make a one stop visit to the United States for purposes of naturalizing their child as a U.S. citizen such process is clearly what Congress intended, as noted in the House of Representatives report accompanying the legislation. Dept. will forward procedures to posts as soon as they are available.

3. Former citizens of the United States regaining United States Citizenship

Section 324(d)(1) INA provides for the restoration of U.S. citizenship by former citizens who lost their nationality for failing to comply with the former retention requirements of the Immigration and Nationality Act of 1952 and the Nationality Act of 1940.

History of the retention provisions: AMCITS born abroad to one U.S. citizen parent and one alien parent between May 24, 1934 and October 10, 1952 were subject to varying retention requirements in order to keep their U.S. citizenship. Specifically, these AMCITS were required to reside or be physically present in the U.S. for specific periods in order to keep U.S. citizenship acquired at birth. Persons who failed to comply with the requirements ceased to be U.S. citizens. Although the retention requirements were repealed on 10/10/78.

The repeal was prospective, not retroactive, and AMCITS born during that time period mentioned above still fell victim to the residency/physical presence requirements, unless affirmative defenses to failing to retain (unawareness, impossibility of performance, or official misinformation) were present to support a conclusion that constructive compliance had occurred.

INTCA Amendment: In essence, the INTCA amendment allows an individual, who lost U.S. citizenship because of failure to meet the retention requirements, to regain such citizenship upon application and upon taking the oath of allegiance, provided such person is not excluded under section 313 INA regarding the disqualification of persons who advocate totalitarian forms of government. This amendment does not restore citizenship retroactively, therefore, these persons would be unable to transmit citizenship to their children born during the period between their loss of and restoration to U.S. citizenship. The INTCA amendment takes effect on March 1, 1995.

Section 103 of INTCA amends section 324 INA by adding at the end the following new subsection.

"(d)(1) a person who was a citizen of the United States at birth and lost such citizenship for failure to meet the physical presence retention requirements under section 301(b) (as in effect before October 10, 1978) shall, from and after taking the oath of allegiance required by section 337 be a citizen of the United States and have the status of a citizen of the United States by birth, without filing an application for naturalization, and notwithstanding any of the other provisions of section 313. Nothing in this subsection or nay other provision of law shall be construed as conferring United States citizenship retroactively upon such person during any period in which such person was not a citizen.

(2) The provisions of paragraphs (2) and (3) of subsection (c) shall apply to a person regaining citizenship under paragraph (1) in the same manner as they apply under subsection (c)(1)."

Implementation Procedures: The Department has established the following procedures for persons requesting the restoration of U.S. citizenship pursuant to Section 324 (d)(1):

A) These procedures apply only to persons born abroad between May 24, 1934 and Oct 10, 1952 to one AMCIT and one alien parent who 1) lost their citizenship for failure to satisfy retention requirements and received an official determination to that effect by the Dept of State, or, 2) did not fulfil the retention requirements and are making a first time claim for U.S. citizenship.

B) Post should prepare a statement of post letterhead entitled "Oath of Allegiance to the United States Under the Immigration and Nationality Act." The statement should include the following language: Begin text:

This statement is for use under section 324(d)(1) of the Immigration and Nationality Act by a person who was a citizen of the United States at birth and lost such citizenship for failure to meet the physical presence retention requirements under section 301(b) INA.

Name of Applicant (Please Print Name in Full) Date of Birth Place of Birth

I Solemnly swear that I have performed no voluntary act which would cause me to be within any of the provisions of Section 313 of the Immigration and Nationality Act relating to persons opposed to government or law or who favor totalitarian forms of government. I hereby apply to take the oath of allegiance to the United States as prescribed by Section 337(a) of the same Act. I understand that taking the oath restores U.S. citizenship as of the date of the oath and is not retroactive to the date of failure to retain.

Oath of Allegiance

I hereby declare, on oath, that I absolutely and entirely renounce and adjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform non-combatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

Signature of Applicant

Subscribed and sworn to before me the above named applicant

Signed and dated by ConOff

End Text.

C) Upon presentation of documentation supporting a claim to U.S. citizenship pursuant to section 324(d)(1), the applicant should fill out an sign the top portion of the statement. Upon signature, ConOff or any other person duly authorized to take an oath shall administer the Oath of Allegiance. (Due to the importance placed on naturalization, the applicant should recite the oath.) ConOff should then sign and date the statement. It is not necessary to include a Consular seal.

(D) Applicant should be asked to execute a passport application (DSP-11), with all required supporting documentation, two pictures and appropriate fees.

(E) Attach the above statement to the applicant's documentation and PPT application (if any) and forward to Dept (CA/PPT/TD).

(F) A PPT may be issued without referral to the Dept.

(G) Post should prepare a lookout removal request form and forward it to CA/PPT/TD if PPT namecheck clearance revealed the presence of a lookout.

Case brought by persons born during the relevant time period who met the retention requirements, may be adjudicated as normal. (See 7 FAM 1133.5).

Department's intent in proposing and supporting this legislation was partially founded on our desire to do away with unawareness, impossibility of performance and misinformation cases. Therefore, the above procedures are to be used in all cases where retention of citizenship and a failure to retain is the core issue of adjudication. Should an applicant insist on alleging unawareness, etc, and the consul is unable to dissuade the applicant, then the normal procedure for adjudicating unawareness, etc. cases should be followed. It is important to note that there would be very limited circumstances when an applicant would want to establish an unawareness claim, e.g. the ability to transmit citizenship to children under section 301(c) INA.

4. Intent to Reside Permanently in the United States after Naturalization

Current section 340(d) INA has been repealed. This former section provided a means for a court to revoke a naturalized person's U.S. citizenship if it were determined that the individual had taken up permanent residence abroad within one year of the date of naturalization. INTCA removed the language of the statement from naturalization certificates. "intends to reside permanently in the United States." Posts should cease further development of an action on cases under this former section of law.

If a case in suspense, posts should notify the subject that all further actions on case are terminated.

Please note that the repeal of section 340(d) INA does not reinstate persons who were judicially denaturalized in the past. Denaturalization is a judicial procedure and loss of citizenship is an administrative action. We have no discretion to reinstate judicial denaturalization.

5. Appropriate sections of 7 FAM will be revised to reflect this guidance as soon as possible.

6. The above mentioned implementing procedures were designed to make the process as simple as possible for post and the AMCIT. Please contact the Dept (CA/OCS/ACS) if posts have any comments or concerns.