THE United States of America adheres to the doctrine of jus soli, the law of the place of one’s birth, as contrasted with jus sanguinis, the law of the place of one’s descent or parentage, as to acquisition of citizenship.
Thus, under the Fourteenth Amendment of the United States Constitution, “(a)ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
What about a child born outside the United States to one or both parents who are US citizens?
What about a child born out-of-wedlock?
What about an adopted child? A step-child?
Transmission of citizenship to child by US citizen parent
A child born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such child, is a US citizen at the moment of birth. See Immigration and Nationality Act (INA), § 301(c).
A child born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such child, and the other of whom is a national, but not a citizen of the United States, is a US citizen at birth. See INA § 301(d).
A child born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such child, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years is a US citizen at birth. See INA § 301(g).
Thus, the US citizen parent is required to reside or be physically present in the United States for stated time periods before the birth of the child, for the parent to transmit US citizenship to the child born outside of the United States.
The transmission requirements are set by the law in effect at the time of the birth of the child, not at the time of residence or physical presence of the US citizen parents in the United States.
Child born out-of wedlock
A child born out-of-wedlock may acquire United States citizenship through the US citizen father or mother, under INA § 309.
A child born out-of-wedlock is a US citizen at birth, if:
(1) a blood relationship between the child and the father is established by clear and convincing evidence;
(2) the father had the nationality (or citizenship) of the United States at the time of the child’s birth;
(3) the father (unless deceased) had agreed in writing to provide financial support for the child until the age of 18 years; and
(4) while the child is under the age of 18 years,
(a) the child is legitimated under the law of the child’s residence or domicile;
(b) the father acknowledges paternity of the child in writing under oath; or
(c) the paternity of the child is established by adjudication of a competent court. See INA § 309(a).
A child born, after December 23, 1952, outside of the United States and out of wedlock shall be held to have acquired at birth the nationality status of his or her mother, if the mother had the nationality (or citizenship) of the United States at the time of such child’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year. See INA § 309(c).
US Citizenship for adopted child
A child born outside the United States and adopted by a US citizen parent cannot obtain US citizenship through INA § 301(g).
But such an adopted child may acquire US citizenship under INA § 322, to wit: a parent who is a US citizen may apply for naturalization on behalf of a child born outside the United States who has not acquired citizenship automatically under section 320, provided the following conditions are fulfilled:
– at least one parent is a citizen of the United States, whether by birth or naturalization;
– the United States citizen parent:
– has been physically present in the United States or its outlying possessions
– for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or
– the child is under the age of eighteen years;
– the child is residing outside the United States in the legal and physical custody of the applicant;
– the child is temporarily present in the United States pursuant to lawful admission, and is maintaining such lawful status.
Step-child of a US citizen parent
Simply because the definition of child under INA § 101(c) does not include a step-child, such a step-child does not acquire citizenship at birth under INA § 301, nor by derivation under INA § 320.
Derivation of US citizenship through naturalization or US birth of one parent
Under the Child Citizenship Act of 2000, incorporated as INA §320(a), a child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
– at least one parent of the child is a citizen of the United States, whether by birth or naturalization;
– the child is under the age of eighteen years;
– the child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
And under INA § 320(b), aforesaid subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1)(E)(i): (a) child adopted while under the age of sixteen years, (b) in the legal custody of, and has resided with, the adopting parent(s) for at least two years.
* * *
Roman P. Mosqueda has practiced criminal defense and Immigration law for over 20 years. He is a long-time member of the California Public Defenders Association. , and trained as a prosecutor with the Los Angeles City Attorney under the Trial Advocacy Program of the Los Angeles County Bar Association. He is also a volunteer, State-Bar trained arbitrator on attorney’s fees dispute resolution. Send comments or inquiries to This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or call (213) 252-9481 for free consultation appointment, or visit his website at www.mosquedalaw.com
| < Prev | Next > |
|---|
