Citizenship By Operation of Law

Naturalization is not the only way to acquire U.S. Citizenship. U.S. laws also confer citizenship automatically on certain qualifying persons. The three circumstances are: (1) birth in the U.S.; (2) birth outside the U.S. to qualifying parents; and (3) derivative citizenship through naturalization of the parents. Also discussed at this page is dual citizenship.

Birth in the U.S.

Persons born in the U.S., including the Virgin Islands and Puerto Rico, are U.S. Citizens under the 14th Amendment of the U.S. Constitution. The concept is jus soli. Exceptions include children born to foreign heads of state, to diplomats on the “Blue List,” on vessels in U.S. waters, and in U.S. possessions.

The U.S. Possessions are American Samoa, Guam, the Marshall Islands, the Federal States of Micronesia, the Northern Marianas and Palau. Persons born in these Possessions are nationals but not citizens of the U.S. They can live and work in the U.S. But they can neither vote nor pass nationality to their children.

Birth Abroad to Qualifying Parents

Some persons born outside the U.S. acquire citizenship at birth. This depends on their date of birth, whether one or both parents are USC’s, which parent is the citizen, and whether the child was born in or out of wedlock. All parental requirements must exist before the child’s birth.

After December 24, 1952, a child born abroad is a U.S. Citizen if (1) both parents are citizens, one with prior U.S. residence; or (2) one parent is a U.S. Citizen with 10 years of prior physical presence in the U.S., at least 2 after age 14 (for births on or after November 14, 1986). For births between 12/24/1952 and 11/14/1986, the citizen parent must have been physically present in the U.S. for 5 years after age 14.

The rules for illegitimate children and for all children born abroad before 12/24/1952 are complex. Consult an immigration attorney.

Derivative Citizenship Through Naturalizing Parents

On February 27, 2001, the Child Citizenship Act of 2000 became law. It permits a child to derive citizenship automatically if one parent is a USC by birth or naturalization, the child is under 18, is an LPR, and resides in the United States In the legal and physical custody of the USC parent. All requirements must be met on or after February 27, 2001. The effective date of citizenship is when all these requirements are met.

Children present in the U.S. who potentially qualify for this benefit but are not yet LPR’s must undergo the I-485 green card application process. But the child does not receive a green card if "adjusted." Instead, the adjustment date is the date of citizenship.

Obtaining Proof of Automatic or Derivative Citizenship

There are two ways to secure proof of such citizenship. The first is by applying for a U.S. passport through a Passport Agency Office of the U.S. State Department. This involves securing and completing a passport application (from most main post offices) and taking an oath before the postal official. The second method is by submitting an I-600 form (I-600K if an adopted child) to the local CIS office with jurisdiction over the place of residence.

In our firm’s experience, submitting a passport application is far faster, easier and more certain than struggling through the N-600 process. In both instances, however, the supporting documentation must be properly assembled, authenticated, translated and indexed.

Dual Citizenship

Dual citizenship can occur in several situations. Three of the most common are:

1. Birth in the U.S. to parents whose country bases its citizenship on parentage (jus sanguinis).

2. Birth in a foreign country that follows jus soli for at least one USC parent and under INA §301(g).

3. Naturalization of a USC in a foreign state.

The U.S. disfavors dual citizenship because of its complications – but it is not prohibited. And while the U.S. Oath of Citizenship requires renouncing foreign sovereigns, the law of the foreign state determines whether that oath results in loss of citizenship in that other state.

How We Can Help You

Some potential clients with longstanding physical presence in the U.S. are surprised to learn that they may be U.S. citizens without realizing it. The benefits can be enormous – from qualifying for in-state tuition rates to avoiding possible deportation for criminal conduct. There is no substitute for review of your situation by a qualified and experienced immigration lawyer.

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Please note: The information at this page is general in nature. It does not create an attorney- client relationship. You rely on it at your own risk. We urge you to consult with qualified immigration counsel for help with your own immigration situation.

Copyright 2005-2008 Everett P. Anderson. All rights reserved.