Legal Question in Immigration Law in California

Re: Constructive Retention

I'm not sure if I've heard of the "Doctrine of Constructive Retention," as you put it, but the "retention requirement" was a part of US immigration statutes until its repeal in 1978. This required a child born to a US citizen parent and an alien parent to come to the US before the age of 23 or face the loss of American citizenship. But, as noted, this is no longer the law, and the child can still get citizenship, even if he or she hasn't been in the US, provided that other requirements are met.

These requirements are that for a child born outside the US of a US citizen parent and an alien parent, the citizen parent was in the US for at least five years, at least two of which were after the age of fourteen. For a person born in 1970, however, the time periods were about twice longer (at least ten years of which at least five years were after age of fourteen). I had a case with an applicant born in 1970, the same as you, so we had to apply the longer requirement. However, in your case, your father, even though he's a US citizen has never resided in the US so it won't work for you. He was able to get his citizenship probably because HIS father had resided in the US.

Liem Doan, Esq.

Re: Constructive Retention

Hi-

You stated you were born in 1970. In order for your father to have been able to transmit his U.S. citizenship to you, he would have had to have been physically present in the US or a US possession for at least 10 years prior to your birth, with at least 5 of those after he was 14 years of age.

This "transmission" requirement appears to be the problem for you based on what you stated, as opposed to the retention issue.

US citizens can file visa petitons on behalf of their adult sons and daughters to qualify them for eligibility to become lawful permanent residents. You have to wait until your turn to qualify (called "priority date") is "current", and the wait is longer for married sons and daughters (approximately 5 years) than it is for unmarried adult sons and daughters (approximately 2 years). This may be something to consider in your overall planning.

You should get some legal advice on all of these issues as they pertain to your specific case, though. Good luck.

Eric Schultz (ph# 716-854-1541)