Deriving Citizenship Through Parents at Birth

 

Introduction

In most scenarios where a child is born abroad and one or both of his or her parents are U.S. citizens (USC), citizenship will be transmitted to the child at birth by effect of the law. This article will examine various scenarios involving USC parent(s) giving birth abroad and in which scenarios citizenship is transmitted to the child and the process for obtaining documentation of the child's citizenship. This article has been updated to reflect the Supreme Court decision in Sessions v. Morales-Santana, 582 U.S. __ (2017) [PDF version] [see article].

Derivation of citizenship

In order to learn about deriving citizenship from parents after birth, please follow this link.

Birth in the United States

Pursuant to section 1 of the Fourteenth Amendment of the U.S. Constitution, all persons born in the United States1 are U.S. citizens from birth. If a child is born in the United States, he or she is a citizen regardless of the status of the parents, and need not derive citizenship through his or her parents. Please follow this link to learn more about obtaining documentation to show U.S. citizenship from birth in the United States.

Children Born to Married Parents

Where Both Parents are USCs

If a child is born outside of the United States or its territories to two USC parents, he or she will be a citizen from birth if either parent had at any time had residence in the United States or one of its outlying possessions [INA § 301(c)].2

The following is a chart reproduced from Kurzban's Immigration Law Sourcebook explaining the rules that apply in this scenario depending on when the birth occurred:

Birth Abroad to Two U.S. Citizen Parents

Date of Birth

Transmission Requirements

(Parents' Residence)

Applicable Laws

Reference

Before noon (EST) 5/24/34 One parent resided in the U.S. §1993, Revised Statutes (RS); §301(h) INA; §101 P.L. 103-416 7 FAM 1135.1

Noon (EST) 5/24/34 and

prior to 1/13/41

One parent resided in the U.S. §1993, RS as amended by Act of 5/24/34 7 FAM 1135.6-1
1/13/41 and prior to 12/24/52 One parent resided in the U.S. or possession §201(c) NA 7 FAM 1134.2, 1134.3-1, 1134.3-2
On or after 12/24/52 One parent resided in the U.S. or possession §301(a)(3), now 301(c) INA 7 FAM 1133.2-1a, 1133.3-1a

Source: I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014), Page 1056

Notes (paraphrased from source):

  1. In all cases, the parent's residence in the United States must have occurred prior to the child's birth.
  2. The statutes do not require any specific length of residence for the parents in the United States.
  3. Children born abroad to two U.S. citizen parents where one U.S. citizen parent resided in the United States never had retention requirements.

Where One Parent is a USC and the Other Parent is Neither a USC nor U.S. National (USN)3

In this scenario, the child is a USC from birth if:

  • The birth occurred on or after November 13, 1986;
  • The USC parent was physically present in the United States or its territories for at least five years in the aggregate before the birth of the child;4
  • At least two years of the required five years of physical presence occurred after the USC parent's fourteenth birthday.

Furthermore, the following periods will be considered as time spent toward meeting the five and two year physical presence requirements:

  • Honorable service abroad in the U.S. Armed Forces;
  • Employment abroad with the U.S. government;
  • Employment abroad with certain international organizations;
  • Time spent as an unmarried child of a parent serving abroad in any of the three capacities listed above.

The statutory provisions for this scenario are found in INA § 301(d).

If the USC parent is a naturalized citizen, the requisite physical presence may have occurred prior to naturalization [7 FAM 1133.3-3(a)(2)].

Please note that for this and subsequent mentions of “physical presence,” the rules for physical presence are the rules at the time of the birth of the child. See U.S. v. Flores-Villar, 536 F.3d 990, 994-98 (9th Cir. 2008) which held that a father could not transmit citizenship under the current laws requiring five years of physical presence because the law when the child was born required ten years of physical presence.5 The ten-year physical presence requirement applies to all births that occurred between October 10, 1952 and November 14, 1986. In addition to the ten-year physical presence requirement, five of the ten years must have occurred before the parent turned 14 years of age.

The following is a chart reproduced from Kurzban's Immigration Law Sourcebook explaining the rules that apply for children born abroad to a married USC parent and an alien parent depending on when the birth occurred:

Birth Abroad to U.S. Citizen Parent and Alien Parent

Date of Birth

Transmission Requirements

Reference

Retention Requirements

Reference

Before noon EST 5/24/34 Either U.S. citizen father or mother could transmit. U.S. citizen parent resided in U.S. before child's birth §1993, Revised Statutes (RS); 7 FAM 1135; §301(h) INA; P.L. 103-416 None  
Noon EST 5/24/34 and prior to 1/31/41

Either U.S. citizen father or mother could transmit.

U.S. citizen parent resided in U.S. before child's birth

§1993, RS as Amended in 1934; 7 FAM 1135.1.

11.35.2.

Persons failing to fulfill below requirements may have citizenship restored upon taking oath of allegiance.

(1) 5 years residence between the ages 13-21 if begun before 12/24/52; or

 

(2) 2 years continuous physical presence between ages 14-28;1 or

(3) 5 years continuous physical between ages 14-28 if begun before 10/27/72.2

(4) None if parent employed certain occupation.3

(5) None if alien parent naturalized and child began to reside permanently in U.S. while underage 18.

§324(dX 1) Immigration and Nationality Act of 1952 (INA). §101 PL. 103-116;
7 FAM 1133.5-15.

(1) §201(g) and (h) Nationality Act of 1940 (NA). 54 Stat. 1137;
7 FAM 1134.6-3

(2) Former §301(b). (c) INA; 7 FAM 1133.5-7.5-8

(3) Former §301(b), (d) INA; 7 FAM 1133.5-2.
1133.5- 9

 

(4) §201(g) INA; 7 FAM
1134.6- 2

 

(5) Former §301(b) IN A;
7 FAM 1133.5-7. 1133.5-11

 

1/13/41 and prior to 12/24/52 Citizen parent resided in U.S. or possession 10 years prior to child's birth, five of which after (lie age of 16. 201(g) NA.7FAM 1134.2. 1134.3

Persons failing to fulfill below requirements may have citizenship restored upon taking oath of allegiance.

(1) 2 years continuous physical presence between ages 14-28:1 or

(2) 5 years continuous physical presence between ages 14-28 if begun before 10/27/72.2

(3) None if parent employed in certain occupation.3

(4) None if child bom on or after
 10/10/52;

(5) None if alien parent naturalized and child began to reside permanently in U.S. while underage 18.

Sec. 324(d)(1) IN A. §101 PL. 103-416: 7 FAM
 1133.5-15

 

 

(1) Former §301(b). (c) INA: 7 FAM 1133.5-7.5-8

 

(2) Former §301(b). (d) INA. 7 FAM 1133.5-2,
1133.5- 9

(3) 201(g) NA: 7 FAM
1134.6- 2

 

(4) P.L. 95-432: 7 FAM
1133.5- 13

(5) Former §301(b) INA: 7 FAM 1133.5-7.
 1133.5-11

 

  Citizen parent in U.S. military 12/7/41- 12/31/46 and resided in U.S. or possession 10 years prior to child's birth, five of which after age 12. 201(i) NA: 7 FAM 1134.2. 1134.4

Persons failing to fulfill below requirements may have citizenship restored upon taking oath of allegiance.

(1) 2 years continuous physical presence between ages 14-28;1 or

(2) 5 years continuous physical presence between ages 14-28 if begun before 10/27/72.2

(3) None if child bom on or after
 10/10/52.

(4) None if alien parent naturalized and child began to reside permanently in U.S. while underage 18.

§324(d)(l) INA. §101 P.L. 103-416: 7 FAM
1133.5- 15

 

 

(1) Former §301(b) INA: 7 FAM 1134.4c. 1133.5

(2) Former §301(b). (d) INA: 7 FAM 1133.5-2.
1133.5- 9

 

(3) P.L. 95-432: 7 FAM
1133.5- 15

(4) Former §301(b) INA: 7 FAM 1133.5-7.
1133.5- 11

 

1/13/41 and prior to 12/24/52 (cont') Citizen parent in U.S. military 1/1/47- 12/24/52 and physically present in U.S. or possession 10 years prior to child's birth, five of which after age 14. and who did not qualify under either provision above. §301 (a)(7). now 301(g) INA: 7 FAM 1134.4f

Persons failing to fulfill below requirements may have citizenship restored upon taking oath of allegiance.

(1) 2 years continuous physical presence between ages 14-28:1 or

(2) 5 years continuous physical presence between ages 14-28 if begun before 10/27/72.2

(3) None if child bom on or after 10/10/52.

(4) None if alien parent naturalized and child began (o reside permanently in U.S. while underage 18.

§324(d)(1) INA: P.L. 103-416: 7 FAM
 1133.5-15

 

 

(1) Former §301(b) INA; 7 FAM 1133.5-7. 5-8

(2) Former §301(b). (d) INA; 7 FAM 1133.5-2.
1133.5- 9

 

(3) P.L. 95-432: 7 FAM
1133.5- 13

(4) Former §301(b) INA: 7 FAM 1133.5-7.
 1133.5-11

 

12/24/52 and prior to 11/14/86 Citizen parent physically present in U.S. or possession 10 years prior to child's birth, five of which after age 14. Honorable U.S. military service, employment with U.S. Government or inter-governmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such service or employment, may be included. §301(a)(7). how 301(g) INA: 7 FAM 1133.2-2. 1133.3-3 None  
On or after 11/14/86 Citizen parent physically present in U.S. or possession 5 years prior to child's birth, two of which after age 14. Honorable U.S. military) service, employment with U.S. Government or inter-governmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such service or employment, may be included. 301(g) INA. P.L. 99-653. P.L. 100-525: 7 FAM 1133.2-1 None  
  1. Absences of less than 60 days in aggregate during 2 year period do not break continuity
  2. Absences of less than one year in aggregate during 5 year period do not break continuity.
  3. U.S. Government. American education, scientific. philanthropic, religious, commercial, or financial organization or an International Agency in which the U.S. takes part. Note: residence or physical presence of parent must take place before child's birth.

Source: I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014), Page 1057-59

Where One Parent is a USC and the Other Parent is a USN

The requirements are the same as for where a child is born to a USC parent and a non-USC/USN, except the requisite physical presence period for the USC parent is only one year in this scenario [INA § 301(d)]. There is no exception to the physical presence requirement in this scenario.

Children Born to Unmarried Parents

On June 12, 2017, the Supreme Court of the United States issued a decision in Sessions v. Morales-Santana, 582 U.S. __ (2017) which struck down different residency requirements for children born abroad to unwed USC fathers and mothers. Since 1952, mothers were subject to a 1-year residency requirement, whereas fathers had 10 or 5 year requirements (depending on when the birth occurred). In Morales-Santana, the Supreme Court struck down the less stringent requirements for unwed USC mothers conferring citizenship. Accordingly, the new rule is that an unwed USC mother must meet the same residency requirements that were or are in effect in order to confer citizenship to a child born abroad. We have updated the article accordingly.

Where the Mother is a USC

Under Morales-Santana, unwed USC mothers are subject to the same residency requirement for conferring citizenship to a child born abroad as USC fathers. This applies for births from January 13, 1941, onward. Accordingly, please see our chart titled “Child Born Out Of Wedlock to U.S. Citizen Father And Alien Mother (and, post-1/13/41, to a U.S Citizen Mother and Alien Father)” for more information. Please see our appendix for our section on the outdated rules [see appendix].

The following is a chart reproduced from Kurzban's Immigration Law Sourcebook with modifications explaining the rules that apply for children born abroad to an unmarried USC mother explaining the rules that hold depending on when the birth occurred:

Child Born Out Of Wedlock to U.S. Citizen Mother

Date of Birth

Transmission Requirements (Parents' Residence)

Applicable Laws

Reference

Before noon (EST) 5/24/34 Mother resided in the U.S. or possession prior to child's birth: child not legitimated by alien father before 1/13/41. §205. paragraph 2. NA 7 FAM 1135.3-2
Noon (EST) 5/24/34 and prior to 1/13/41 Mother resided in U.S. or possession prior to child's birth. §1993. RS as amended by Act of 5/24/34; §205. paragraph 2. NA 7 FAM 1135.7-2
1/13/41 and prior to 12/24/52

Mother resided in U.S. or possession prior to child's birth.

Struck down in Morales-Santana.

§205. paragraph 2. NA

Struck down in Morales-Santana

7 FAM 1134.5-4
On or after 12/24/52

Mother physically present in U.S. or possession continuously 12 months prior to child's birth.

Struck down in Morales-Santana.

§309(c). INA

Struck down in Morales-Santana

7 FAM 1133.4-3

Note: Children bom out of wedlock to a U.S. citizen mother never had retention requirements.

Source: I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014), Page 1060 (modified by myattorneyusa.com after Morales-Santana decision)

Where the Father is a USC

The scenario for deriving citizenship from a USC father where the parents were unmarried and the mother was not a USC is more complicated than the parallel scenario for where the mother is the USC and the father is not. In order for citizenship to be transmitted at birth by the father, the following must be true:

  • The blood relationship between the child and USC father must be established by clear and convincing evidence [INA § 309(a)(1)];
  • The father was a USC at the time of the birth [INA § 309(a)(2)];
  • The father, provided that he is living, agrees in writing to provide child support until the child turns 18 [INA § 309(a)(3)];6
  • While less than 18 years of age, the child must be legitimized under the laws of where he or she lives, and either the father must acknowledge the paternity of the child or the paternity of the child must be established by a “competent court” [INA § 309(a)(4)].

Furthermore, the physical presence requirements for the USC father to transmit citizenship are the same as those found in the relevant provisions of INA § 301 described in the above sections [the five and two year physical presence requirements, or one year in the event that the mother is a U.S. national]. This law is effective for all children who turned 18 years of age after November 13, 1986. For those who turned 18 years of age prior to November 13, 1986, the person must have been legitimized before the age of 21 and the USC father must meet the ten/five year requirement instead of the five/two year requirement [7 FAM 133.4-2; old INA § 309(a)]. Persons who were between 15 and 18 years of age on November 13, 1986, may acquire citizenship through a USC father under either the either set of rules.

The following is a chart reproduced from Kurzban's Immigration Law Sourcebook explaining when the new rules apply and when the old rules apply:

Adjudicating citizenship based on birth out of wedlock to a U.S. father Determining Whether to Use “New” or “Old” INA §309(a)

Date of Birth

Applicable
 Statute

Age Before Which “Legitimation” Must Occur

Date Before Which “Legitimation” Must Occur *

Statement of Support Required?

Before 11/14/68 Old Section 309(a) 21 11/14/89 No

On or After 11/14/68 and
Before 11/14/71

Old Section 309(a) 21 11/14/92 No
  New Section 309(a) 18 11/14/89 Yes

On or After 11/14/71 and
Before 11/14/86

Old Section 309(a) 15 11/14/86 No
  New Section 309(a) 18 11/14/04 Yes
On or After 11/14/86 New Section 309(a) 18 None Yes

Note that under current Section 309(a), the citizen father can, in lieu of legitimation, acknowledge paternity in writing and under oath, or paternity of the child can be established by adjudication of a competent court. Any one of the three methods of establishing paternity must occur before the child's 18th birthday.

Source: I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014), Page 1056

The following chart, also reproduced from the Sourcebook, explains the scenarios under which a child may acquire birth from a USC father when his or her parents were unmarried under the laws that existed at different points:

Child Born Out Of Wedlock to U.S. Citizen Father And Alien Mother (and, post-1/13/41, to a U.S Citizen Mother and Alien Father)

Date of Birth

Transmission and Legal Relationship Requirements

Reference

Retention Requirements

Reference

Before noon (EST) 5/24/34 Legitimated under law of father's U.S. or foreign domicile. Father resided in U.S. before child's birth. §1993, RS; 7 FAM 1135.3-1 None  
Noon (EST) 5/24/34 and prior to 1/13/41 Legitimated under law of father's U.S. or foreign domicile. Father resided in U.S. before child's birth. §1993. RS as amended in 1934; 7 FAM 1135.7-1

Persons failing to fulfill below requirements may have citizenship restored upon taking oath of allegiance.

(1) 5 years residence between ages 13-21 if begun before 12/24/52: or

(2) 2 years continuous physical presence between ages 14-28;1 or

(3) 5 years continuous physical presence between ages 14-28 if begun before 10/27/72.2

(4) None if parent employed certain occupation.3

(5) None if alien parent naturalized and child began to reside permanently in U.S. while underage 18.

§324(dX 1) INA. §101 P.L. 103-416 1133.5-15

 

 

(1) §201(g) and (h) NA: 7 FAM 1133.6-3

(2) Former §301(b). (c) INA; 7 FAM 1133.5-7,
1133.5- 8

(3) Former §301(b). (d) INA; 7 FAM 1133.5-2,
1133.5- 9

 

(4) §201(g) NA: 7 FAM
1134.6- 2

(5) Former §301(b) INA; 7 FAM 1133.5-7.
 1133.5-11

 

1/13/41 and prior to 12/24/52

Res. Requirement applies to mothers under Morales-Santana

 

(1a) Father physically present in U.S. or possession 10 years prior to child's birth. 5 of which after the age of 14. Honor-able U.S. military service, employment with U.S. Government or intergovernmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such service or employment may be included, and

(1b) Paternity established fore age 21 by the legitimation law of father's or child's residence/domicile: or

(2a) Father resided in U.S. or possession 10 years prior to child's birth, five of which after the age of 16 years: and

(2b) Paternity established during minority bv legitimation or court adjudication before 12/24/52

 

§301(a)(7) INA: 7 FAM 1133.3-3

 

 

 

 

 


§309(b) INA 55

 

201(g) NA

 


§205 NA; 7 FAM 1134.5-2

 

Persons failing to fulfill below requirements may have citizenship restored upon taking oath of allegiance.

(1) 2 years continuous physical presence between ages 14-18:1

(2) 5 years continuous physical presence between ages 14-28 if begun before 10/27/72.2

(3) None if parent employed in certain occupation3

(4) None if child bom on or after 10/10/52.

(5) None if alien parent naturalized and child began to reside permanently in U.S. while underage 18.

§324(dXl) INA: §101 PL. 103-416: 7 FAM
1133.5- 15

 

(1) Former §301(b). (c) INA: 7 FAM 1133.5-7. 5-8

(2) Former §301(b).(d) INA: 7 FAM 1133.5-2.
1133.5- 9

 

(3) 201(g) NA: 7 Fam
1134.6- 2

(4) P.L. 95-432: 7 FAM
1133.5- 3

(5) Former §301(b) INA: 7 FAM 1133.5-7.
1133.5- 11

12/24/52 through 11/14/68

Res. Requirement applies to mothers under Morales-Santana

( 1 ) Father physically present in U.S. or possession 10 years prior to child's birth, five of which after age 14. Honorable U.S. military service, employment with U.S. Government or intergovernmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such sen ice or employment, may be included: and

(2) Paternity established underage 21 by legitimation law of father s or child's residence/domicile.

 

§301(a)(7) INA

 

 

 

 

 

 

§309(a) INA as originally enacted

 

None  

After 11/14/68 through 11/14/71

Res. Requirement applies to mothers under Morales-Santana

(1) Father physically present in U.S. or possession 10 years prior to child's birth, five of which after age 14. Honorable U.S. military service, employment with U.S. Government or intergovernmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such service or employment, may be included: and

(2a) Blood relationship established between father and child, father a U.S. citizen at time of child's birth, father (unless deceased) agrees in writing to support child until 18 years, and while child is under 18 years: (i) child is legitimated, (ii) father acknowledges paternity, or (iii) paternity established by court adjudication, or

(2b) Paternity is established under age 21 by the legitimation law of father's or child's residence/domicile.

§30l(a)(7) INA

 

 

 

 

 

 

§309(a) INA as amended 11/14/86. 102 Stat. 2619: 7 FAM 1133.4-2

 

 

§309(a) INA. as originally enacted

None  

After 11/14/71 and prior to 11/14/86

Res. Requirement applies to mothers under Morales-Santana

( 1 ) Father physically present in U.S. or possession 10 years prior to child's birth, five of which after age 14. Honorable U.S. military service, employment with U.S. Government or intergovernmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such service or employment, may be included: and

(2) Blood relationship established between father and child, father a U.S. citizen time of child's birth, father (unless deceased) agrees in writing to support child until 18 years, and while child is under 18 years (i) child is legitimated, (ii) father acknowledges paternity, or(iii) paternity established by court adjudication

§301(a)(7) INA

 

 

 

 

 

 

§309(a) INA. as amended 11/14/86; 102 Stat. 2619; 7 FAM 1133.4-2

None  

On or after 11/14/86

Res. Requirement applies to mothers under Morales-Santana

(1) Father physically present in U.S. or possession five years prior to child's birth, two of which after age 14. Honorable U.S. military service. employment with U.S. Government or intergovernmental international organization, or as dependent unmarried son or daughter and member of the household of a parent in such service or employment, may be included: and

(2) Blood relationship established between father and child, father a U.S. citizen time of child's birth, father (unless deceased) agrees in writing to support child until 18 years, and while child is under 18 years: (i) child is legitimated, (ii) father acknowledges paternity, or(iii) paternity established by court adjudication.

§301(g) INA.
7 FAM 1133.3-3

 

 

 

 

 

 

§309(a) INA as amended 11/14/86; 102 Stat. 2619; 7 FAM 1133.4-2

   

Note: INA §301(h) took effect 10/25/94 and is retroactive to 1790. INA 5324(d) took effect 3/1/95 and is applicable to anyone who failed to retain citizenship regardless of date citizenship ceased.

  1. Absences of less than 60 days in aggregate during 2 year period do not break continuity.
  2. Absences of less than one year in aggregate during 5 year period do not break continuity.
  3. U.S. Government. American educational, scientific, philanthropic, religious, commercial, or financial organization or an international agency in which the U.S. takes part. Note: residence or physical presence of parent must take place before child's birth. Section 301(h) of INA took effect Oct. 25. 1994 and is retroactive to 1790. Section 324(d) of INA took effect March 1. 1995 and is applicable to anyone who failed to retain citizenship regardless of date citizenship ceased.

Source: I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014), Page 1061-64 (modified by myattorneyusa.com after Morales-Santana decision)

Scenarios Involving Assisted Reproductive Technology

In order for a child born using assisted reproductive technology to derive citizenship through a parent, one of the following must be true:

  1. The genetic parent is the USC father;
  2. The genetic parent is the USC mother;
  3. USC mother is the gestational and legal mother of the child at the time and place of the child's birth.7

In order to demonstrate that one of the three listed factors is true, the child's parent(s) may be required to provide evidence demonstrating the biological connection to the child.8 In the scenario where the surrogate mother is the legal mother of the child, she must consent to passport issuance for the child unless an exception found in 22 C.F.R. § 51.28 is met.9

Adoption

A child who is born abroad then adopted by USCs may not derive citizenship from birth from the adoptive USC parent(s).10 However, if the biological parents of the adoptive child meet any of the above criteria for derivation of citizenship from birth, the child may be a USC from birth.

Step-Children

Step-children are not covered because they are not considered “children” pursuant to INA § 101(c).11 Thus, a child may not derive citizenship from birth through a USC step-parent.

Obtaining Proof of Citizenship

If a child is born overseas and meets the requirements for derivation of citizenship from one or both USC parents, the parents should contact the nearest U.S. embassy or consulate to apply for an FS-240, Consular Report of Birth Abroad of a Citizen of the United States of America.

If an FS-240 is not obtained abroad, the parent(s) may instead file for a Form N-600, Application for Certificate of Citizenship at a United States Citizenship and Immigration Services (USCIS) office.

However, neither the FS-240 nor Form N-600 is required for the child to be a USC if the child rightfully derived citizenship from birth from one or both parents.

The Presumption of Alienage

There is a presumption of alienage for a child born abroad.12 The burden will be on the petitioner, in this case the child's parent(s), to rebut the presumption of alienage for the child.13 In effect, this means that the parent(s) must provide clear and convincing evidence that the child, by effect of law, derived citizenship from one or both parents at birth.

Elimination of Retention Requirements

Under old laws, children born abroad who derived citizenship from one or two parents were required to reside in the United States for certain periods of time in order to obtain and maintain U.S. citizenship. These requirements were abolished by statute in 1994.14 As a result, persons born after October 10, 1952 may not lose citizenship due to old retention requirements, and persons born before that date who lost citizenship due to retention requirements may apply for the restoration of citizenship.15

Advice

It is important for USC parent(s) to study the scenarios for transmitting citizenship at birth if there is a chance that a child may be delivered abroad. Understanding these scenarios will help ensure that the child of one or two USC parents will not be born without deriving USC. In the case of any ambiguity, the parent(s) should consult with an experienced immigration attorney for a thorough analysis of the situation.

In any of the scenarios where citizenship is transmitted through one or two USC parents, documentation of said citizenship is not required for the child to be a USC. However, complications may arise for the parents and child if the child does not have documentation of citizenship. Because the least onerous way to obtain said documentation is to obtain an FS-240, parents who may give birth abroad should be abreast of the location of the nearest U.S. embassy or consulate well in advance of the birth abroad. If the parent(s) do not obtain an FS-240, an experienced immigration attorney may help the parent(s) compile the evidence for the Form N-600 application process.

The one scenario where a child who should be able derive citizenship but may have trouble doing so is where he or she is born to an unmarried mother where the mother is not a USC but the father is. Because the father is required to acknowledge his paternity or have the paternity recognized by a “competent court” and is required to agree in writing to provide child support until the child turns 18, the process for establishing the citizenship of the child may be arduous where the father is not inclined to be cooperative. The mother should immediately consult with an experienced immigration attorney and other qualified legal counsel to ensure that her child derives citizenship from his or her USC father.

Persons who believe that they may be entitled to citizenship from a birth that occurred under older rules should consult with an experienced immigration attorney for a full assessment of the situation.

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  1. Pursuant to INA § 101(a)(15)(M)(36), this includes: Washington D.C., Puerto Rico, Guam, U.S. Virgin Islands, and the Northern Mariana Islands.
  2. The United States currently has two “outlying possessions”: American Samoa and Swains Island
  3. Persons born in American Samoa or Swains Island are USNs from birth unless born to USC parents or to one USC parent where certain conditions are met
  4. See footnote 1 for a list of territories [excluding Washington D.C., which is not a “territory”]
  5. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1788, citing U.S. v. Flores-Villar, 536 F.3d 990, 994-98 (9th Cir. 2008), affirmed by an equally divided court, 564 U.S. __, 131 S.Ct. 2312 (2011) (per curiam)
  6. Kurzban 1789, citing O'Donovan-Conlin v. DOS, 255 F.Supp.2d 1075, 1081-86 (N.D. Cal. 2003) [father provided child support before child turned 18, but did not to agree to do so in writing, and child could not acquire citizenship]
  7. Kurzban 1788
  8.  Id.
  9. Id. citing Bureau of Consular Affair, DOS (Feb. 2014), published on AILA InfoNet at Doc. No. 14020643
  10. Kurzban 1789, citing Marquez-Marquez v. Gonzalez, 455 F.3d 548 (5th Cir. 2006); Colaianni v. INS, 490 F.3d 185, 197-99 (2d Cir. 2007)
  11. Kurzban 1793, citing Memo, Yates, Acting Assoc. Director, BUSCIS, HQ 70/34.2-P (Sept. 26, 2003), published on AILA InfoNet at Doc. No. 03100241
  12. Kurzban 1790, citing Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969), citing Matter of A.M., 7 I&N Dec. 332, 336 (BIA 1956) and U.S. ex rel. Rongetti v. Neely, 207 F.2d 281, 284 (7th Cir. 1953); 8 C.F.R. § 341.2(c)
  13. Kurzban 1790, citing Chau v. DHS, 424 F.Supp.2d 1159 (D. Ariz. 2006)
  14. Kurzban 1789, citing Immigration and Nationality Technical Corrections Act of 1994, PL 103-416, 108 Stat. 4305, 4307-08 (Oct. 25, 1994)
  15. Kurzban 1789, citing INA § 324(d); 22 C.F.R. § 50.30(d)

Appendix:

(Pre-Morales-Santana rule, no longer in effect): The child may derive citizenship from a USC mother if the mother was a USC at the time of the child's birth and if she was physically present in the United States or an outlying possession for one continuous year prior to the child's birth [INA § 309(c)]. There are no exceptions for the physical presence requirement in this scenario. These rules apply to all persons born after December 23, 1952.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1788-89, Print. Treatises & Primers.

“USCIS Policy Manual — Part H — Children of U.S. Citizens,” USCIS, July 21, 2015, available at link [PDF version]