This is one of the most complicated areas of U.S. immigration and nationality law. The laws have changed many times. Typically, current laws are only retroactive to their effective dates. For this reason, it is critical for applicants, counsel and immigration officers to be aware that the law applicable to each person is the law that was in force on the exact date of birth, which may not be the same as the law currently in effect.
Citizenship at Birth in the United States
Almost all children born in the territorial United States are native-born U.S. citizens from the moment of birth. The “territorial United States” is now deemed to include the lower 48 states; Alaska (since 6/2/1924) and Hawaii (since 4/30/1900); Puerto Rico (people born there between 4/11/1899 and 1/12/1941 were later declared citizens; those born on or after 1/13/1941 are native-born U.S. citizens); the U.S. Virgin Islands (people born there between 1/17/1917 and 2/25/1927 were later declared citizens; those born on or after 2/26/1927 are native-born citizens); Guam (people born there between 04/11/1899 and 08/01/1950 residing in Guam were later declared citizens; people born there after 08/01/1950 are native-born citizens); and the Commonwealth of the Northern Mariana Islands (since 11/3/1986).
Certain children born on American soil who are not U.S. citizens at birth include:
– Children born to foreign parents present under diplomatic status. These parents are expressly immune from the application of certain U.S. laws, so they must affirmatively elect for the child to become subject to the laws of the United States. If they file an application to do so, the child can become a lawful permanent resident. If they take no action, the child is born a national and citizen of the foreign country represented by the parents, and shares their diplomatic visa status.
– Children born in U.S. “outlying possessions,” currently including American Samoa, Swains Island, and the “U.S. Minor Outlying Islands.”
Birth in one of the outlying possessions of the United States confers U.S. nationality but not citizenship. Like permanent residents, non-citizen U.S. nationals may work and reside anywhere in the country, but may not vote in state or federal elections.
– A person born in an outlying possession of the United States is a U.S. citizen if one parent is a U.S. citizen who was physically present in the territorial United States for a year or more prior to the birth of the child in the outlying U.S. possession.
– A person born abroad to parents who are both U.S. nationals but not citizens, who have had a residence in the U.S. or an outlying possession prior to the child’s birth, acquires U.S. nationality at birth.
Citizenship at Birth Abroad to U.S. Citizen Parents
Persons born abroad to married parents are U.S. citizens at birth if:
– Both parents are U.S. citizens, and at least one parent resided in the U.S. or an outlying possession prior to the birth of the child abroad. (Prior to 1/13/1941, one parent had to have resided in the territorial U.S.)
– One parent is a U.S. citizen who was physically present in the United States for a continuous year or more prior to the birth of the child abroad, and the other parent is a national but not a citizen of the United States.
– One parent is a foreign national, and one is a U.S. citizen who was physically present in the United States or its outlying possessions for a total of at least five years, two of which were after reaching age 14.
*For children born abroad between 11/14/1986 & 12/24/1952, the U.S. citizen parent had to have been physically present in the United States for at least ten years, five of which were after reaching age 14. (Prior periods with different transmission requirements are 01/13/1941 – 12/24/1952, 05/24/1934 – 01/13/1941, and before 5/24/1934)
A person born in the Panama Canal Zone on or after 02/26/1904 is a U.S. citizen if one or both parents were U.S. citizens at the time of birth. A person born in the Republic of Panama on or after 2/26/1904 is a U.S. citizen if, at the time of birth, one or both parents were U.S. citizens employed by the U.S. government or by the Panama Railroad Company.
Persons born abroad, out of wedlock, to a U.S. citizen mother, are citizens if:
– the mother was physically present in the United States or an outlying possession for any continuous period of 12 months prior to the birth abroad.
(Since 12/24/1952. Prior to 12/24/1952, the mother had to have resided in the U.S. or a possession prior to the child’s birth abroad, but there was no one-year physical presence requirement. An illegitimate child born abroad before 5/24/1934 did not remain a U.S. citizen if legitimated by the foreign father prior to 1/13/1941.)
Persons born abroad, out of wedlock, to a U.S. citizen father and foreign mother, are U.S. citizens if all of the following conditions were met:
– the father was physically present in the U.S. or outlying possession for a total of at least five years, two of which were after reaching age 14 (but honorable U.S. military service or employment abroad with the U.S. government count as physical presence); AND
– father was a U.S. citizen at the time of child’s birth, a blood relationship was established between father & child, and father agreed in writing to support child until age 18; AND
– While the child was still under age 18, either i) child was legitimated by father; ii) father acknowledged paternity, or iii) paternity was established by court adjudication.
– (Since 11/14/1986. Prior periods with different transmission requirements through unmarried U.S. citizen father are 11/14/1971-11/14/1986, 11/14/1968-11/14/1971, 12/24/1952-11/14/1968, 01/13/1941-12/24/1952, 05/24/1934-1/13/1941, and before 05/24/1934)
Acquisition under Child Citizenship Act of 2000
A child born abroad who was not a U.S. citizen at birth automatically acquires U.S. citizenship whenever all of the following conditions are met, on or after 02/27/2001:
– At least one parent is a U.S. citizen, either by birth or naturalization; AND
– The child is residing in the U.S. in the legal and physical custody of the citizen parent; AND
– The child has been lawfully admitted as a permanent resident; AND
– The child is still under age 18.
Before the Child Citizenship Act, the only means of acquiring citizenship automatically at any time after birth was by derivation through the naturalization of a parent.