Chapter 1: Purpose and Background
A. Purpose
United States laws allow for children to acquire U.S. citizenship other than through birth in the United States.[1] See INA 301, INA 320, and INA 322. Persons who were born outside of the United States to a U.S. citizen parent or parents may acquire or derive U.S. citizenship at birth. Persons may also acquire citizenship after birth, but before the age of 18, through their U.S. citizen parents.
Previously, acquisition of citizenship generally related to those persons who became U.S. citizens at the time of birth, and derivation of citizenship to those who became U.S. citizens after birth due to the naturalization of a parent.
In general, current nationality laws only refer to acquisition of citizenship for persons who automatically become U.S. citizens either at the time of birth or after. In general, a person must meet the applicable definition of child at the time he or she acquires citizenship and must be under 18 years of age.
B. Background
The law in effect at the time of birth determines whether someone born outside the United States to a U.S. citizen parent or parents is a U.S. citizen at birth. In general, these laws require a combination of at least one parent being a U.S. citizen when the child was born and having lived in the United States for a period of time. In addition, children born abroad may become U.S. citizens after birth. Citizenship laws have changed extensively over time with two major changes coming into effect in 1978 and 2001.
Prior to the Act of October 10, 1978, U.S. citizens who had acquired citizenship through birth abroad to one citizen parent had to meet certain physical presence requirements in order to retain citizenship.[2] See Act of October 10, 1978, Pub. L. 95-432, 92 Stat. 1046. This legislation removed all retention requirements. Prior to the Child Citizenship Act of 2000 (CCA), effective February 27, 2001, the INA had two provisions for derivation of citizenship.[3] See the Child Citizenship Act of 2000, Sec. 101, Pub. L. 106-395, 114 Stat 1631, October 30, 2000 (Effective February 27, 2001). The CCA removed one provision and revised the other making it the only method for children under 18 years of age in the United States to automatically acquire citizenship after birth.[4] The CCA amended INA 320 and removed INA 321 to create only one statutory provision and method for children in the United States to automatically acquire citizenship after birth. See INA 320. See Chapter 4, Automatic Acquisition of Citizenship after Birth (INA 320).
C. Table of General Provisions
A child born outside of the United States may acquire U.S. citizenship through various ways. The table below serves as a quick reference guide to the acquisition of citizenship provisions.[5] Except for the reference to INA 321, the references in the table are to the current statutory requirements for citizenship. Previous versions of the law may apply. The chapters that follow the table provide further guidance.
General Provisions for Acquisition of Citizenship for Children Born Abroad | |||
|---|---|---|---|
INA Section | Status of Parents | Residence or Physical Presence Requirements | Child is a U.S. Citizen |
Both parents are U.S. citizens | At least one U.S. citizen parent has resided in the United States or outlying possession prior to child’s birth | At Birth | |
One parent is a U.S. citizen; other parent is U.S. national | U.S. citizen parent was physically present in the United States or its outlying possession for one year prior to child’s birth | At Birth | |
Unknown parentage | Child is found in the United States while under 5 years of age | At Birth | |
One parent is a U.S. citizen; other parent is a foreign national | U.S. citizen parent was physically present in United States or its outlying possessions for at least 5 years (2 after age 14) prior to child’s birth | At Birth | |
Mother is a U.S. citizen and father is a foreign national | U.S. citizen mother resided in the United States prior to child’s birth | At Birth (only applies to birth prior to 1934) | |
Out of wedlock birth, claiming citizenship through father | Requirements depend on applicable provision: INA 301(c), (d), (e), or (g) | At Birth (Out of wedlock) | |
Out of wedlock birth, claiming citizenship through mother | U.S. citizen mother physically present in the U.S. or its outlying possessions for one year prior to the child’s birth | At Birth (for birth after December 23, 1952) | |
At least one parent is a U.S. citizen (through birth or naturalization) | Child resides in the United States as a lawful permanent resident | At Time Criteria is Met | |
321 Repealed by CCA | Both parents naturalize, or in certain cases, one parent naturalizes | Child resides in the United States as a lawful permanent resident | At Time Criteria is Met |
At least one parent is a U.S. citizen (through birth or naturalization) | Child resides outside of the United States and child’s parent (or grandparent) was physically present in the U.S. or its outlying possessions for at least 5 years (2 after age 14) | At Time Oath is Administered | |
D. Legal Authorities
INA 101(c) – Definition of child for citizenship and naturalization
INA 301 – Nationals and citizens of the United States at birth
INA 309 – Children born out of wedlock
INA 320; 8 CFR 320 – Children residing permanently in the United States
INA 322; 8 CFR 322 – Children residing outside the United States