Establishing Alienage for Non-Citizen Born Abroad to One U.S. Citizen Parent

On October 19, 2017, the U.S. Department of State (DOS) published questions submitted by the American Immigration Lawyers Association and the answers provided by the DOS Liaison Committee and Visa Office (AILA) [PDF version].

In question and answer 27 (see page 17 of the PDF), AILA asked about proving non-citizenship. In many cases, an individual who is born outside of the United States to one U.S. citizen parent does not derive citizenship. We explain the rules for derivation of citizenship at birth in our full article [see article]. AILA expressed concern that individuals born abroad to one U.S. citizen parent who did not derive citizenship under the rules in effect at the time of birth often have difficulty proving alienage. AILA noted specifically that this issue is important in the U.S. tax context. AILA asked DOS if it has considered providing a certificate of non-citizenship in such cases.

The DOS responded that it does not document individuals as “non-citizens” except for non-citizen nationals (generally individuals from American Samoa) [see article]. For the cases described by AILA, it stated that it is not willing to consider issuing a “non-citizenship” document. It added that the individual in question has the responsibility of establishing alienage through the use of “personal facts, evidence, and applicable law.”

An individual who is unsure as to whether he or she derived citizenship at birth may consult with an experienced immigration attorney for a case-specific consultation. An attorney may assist in helping an individual establish that he or she derived citizenship in the event that he or she did so, or establish alienage if he or she did not derive citizenship under the laws in effect at the time of birth.