It is common knowledge that birth in the U.S. gives rise to U.S. citizenship and that foreign-born nationals can become U.S. citizens by naturalization, but most people are not aware of the other ways of acquiring U.S. citizenship. As a result, there are many individuals who were born abroad but have no idea that they may actually be U.S. citizens.
Citizenship is acquired through birth in the U.S. or by being born to U.S. citizen (USC) parents. A foreign-born child may also derive citizenship through the naturalization of a parent.
Generally speaking, a number of factors must be considered to determine if an individual has a claim of acquired citizenship. These include the date of birth of the child; the citizenship of the parents; the parents’ birth dates; whether the child was born in or out of wedlock; whether the parents resided in the U.S. and for how long; and whether the child resided in the U.S. and for how long.
Depending on the law in place at the time of the child’s birth, the USC parent of the child must have resided or been physically present in the U.S. for the requisite period of time before the parent can “transmit” citizenship to the child.
For example, from December 24, 1952 onwards, if a child is born to two USC parents and at least one of the parents had prior residence in the U.S., the child is a USC at birth.
On the other hand, if only one parent is a USC, getting the answer is a bit complicated. For citizenship to be transmitted to the child, the USC parent must have been physically present in the U.S. for a certain number of years, some of which must have been after the parent was fourteen years old. If the child was born before November 14, 1986, the required physical presence of the parent is 10 years, 2 of which after age 14. If the child was born after that date, only 5 years of physical presence is required, 2 of which should be after age 14.
Residence, for this purpose refers to the principal dwelling place of a person without regard to intent. The parent’s actual residence and place of abode must be in the U.S., although time spent in the U.S. before naturalization, regardless of the parent’s legal status, is counted towards the physical presence requirement.
If the child was born out of wedlock, the answer will depend on when the child was born, whether it was the mother or the father who was a USC, and if the father was the USC whether the child was legitimated.
For instance, after December 24, 1952 a child born to a USC mother is a USC at birth if the mother had one year of continuous presence in the U.S. If it was the father who was the USC, paternity must be established before the child reaches a certain age and the legitimation must be valid according to the law of the domicile of the child or the father, whether that is inside or outside the U.S.
Derivation of citizenship is possible if one or both of the parents became naturalized citizens before the child’s 18th birthday.
If only one parent naturalized, one needs to look at the law in effect at the time of the last applicable event. If child turned 18 before February 27, 2001, he may only derive citizenship if the parents divorced or legally separated and he was in the legal custody of the naturalized parent, or if the other parent was deceased.
If the child turned 18 on or after February 27, 2001 when the Child Citizenship Act of 2000 took effect, the child derives U.S. citizenship if he is under 18 years of age, is residing in the U.S. pursuant to a lawful admission for permanent residency; and the child is in the legal and physical custody of the USC parent.
On the other hand, the child can easily establish derived citizenship if both parents were naturalized before the he turned 18 years old and the he himself became a lawful permanent resident (LPR) by that age.