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The ABCs of Immigration - Citizenship Rules for People Born Outside the U.S.
by Greg Siskind and Amy Ballentine

All persons born in the United States are citizens of the United States. This is perhaps the only simple rule of US citizenship. One of the most complicated areas of US citizenship law involves the passage of citizenship to children born outside the US to one or more US citizen parents. While naturalized US citizens are treated like natural born citizens, which includes those who are deemed citizens even when born outside the US, in almost every respect, there is one important office that only natural born citizens can hold – the presidency. Also, a person who is a citizen from birth cannot be denaturalized.

The rules determining when such children are citizens are extremely detailed, and vary a great deal depending on when the child was born.

Birth before May 24, 1934

Persons born abroad before May 24, 1934 to a US citizen father who had resided in the US at any point before the birth are considered US citizens at birth. The status of the mother did not matter unless the child was born out of wedlock. There were numerous legal challenges to this rule, claiming that it violates equal protection by treating the children born to US citizen women different than those born to US citizen men. The issue was never fully resolved by the courts, but in 1994, Congress passed a law retroactively granting citizenship at birth to children born abroad to US citizen women.

In 1940 Congress passed a law making illegitimate children born abroad to US citizen women citizens if the mother had resided in the US. However, under this law, if the child was legitimated by the foreign national father before his or her eighteenth birthday, the child would not be considered a citizen. In 1998, the Supreme Court issued an opinion upholding the requirement that a child born out of wedlock to a US citizen woman be legitimated before his or her eighteenth birthday. However, the decision lacked a clear majority opinion. Sometime later this year the Court will issue an opinion in another case dealing with illegitimate children that may finally resolve the issue. The case is Nguyen v. INS.

The US citizen parent must have resided in the US prior to the birth. This residence can be in the US itself, or in certain US territories after certain dates. The residence can have been while the parent was a minor, and there is no length of time for which the parent must have resided in the US.

Birth between May 24, 1934 and January 13, 1941

In 1934, Congress passed a law allowing US citizen parents, regardless of their gender, to pass citizenship to their children born abroad. If both parents were citizens, only one was required to have resided in the US, and as with the previous law, there was no required length of time that the parent must have resided in the US.

However, if one parent was a US citizen and the other a foreign national, the child would lose their citizenship if they did not either reside in the US for the five years immediately prior to their eighteenth birthday or, within six months of turning 21, take an oath of allegiance to the US. These requirements were gradually relaxed between 1934 and 1940.

Illegitimate children born aboard between 1934 and 1941 became citizens under the general provision, and because the child was considered to have only one parent, no requirements were imposed that could result in the loss of citizenship.

Birth between January 14, 1941 and December 23, 1952

As before, children born abroad to two US citizens, with one parent having resided in the US, the child was a US citizen at birth. No further action was required to maintain citizenship.

When one parent was a citizen and the other a foreign national, however, the rules changed substantially. To pass citizenship, the citizen parent must have resided in the US for at least 10 years before the birth of the child, and at least five of those years had to be after the parent turned 16. Because this rule made it impossible for parents under 21 to pass citizenship, in 1946 the requirement was amended to create an exception for parents who had served in World War Two.

Originally, for children born during this period to retain US citizenship, they had to reside in the US for five years between the age of 13 and 21. However, an exception was made for children of US citizens who were employed abroad by the US government or a US company.

Children born out of wedlock to a US citizen mother who met the residence requirements were automatically citizens, and they retained US citizenship even if legitimated by the foreign national father. For a child born out of wedlock to a US citizen father, to obtain US citizenship the child must have been legitimated before the age of 21.

Birth between December 23, 1952 and November 13, 1986

Again, children born abroad to two US citizen parents were US citizens at birth, as long as one of the parents resided in the US at some point before the birth of the child.

When one parent was a US citizen and the other a foreign national, the US citizen parent must have resided in the US for a total of 10 years prior to the birth of the child, with five of the years after the age of 14. An exception for people serving in the military was created by considering time spent outside the US on military duty as time spent in the US.

While there were initially rules regarding what the child must do to retain citizenship, amendments since 1952 have eliminated these requirements.

Children born out of wedlock to a US citizen mother were US citizens if the mother was resident in the US for a period of one year prior to the birth of the child. Children born out of wedlock to a US citizen father acquired US citizenship only if legitimated before turning 21.

Birth on or after November 14, 1986

Children born abroad to two US citizen parents, one of whom has resided in the US prior to the birth of the child, continue to be US citizens at birth, and need take no special actions to retain citizenship.

Children born to one citizen parent and one foreign national will obtain citizenship at birth if the citizen parent resided in the US for five years before the birth, with two of those years after the age of 14. The child does not need to take any special action to retain US citizenship.

Children born out of wedlock to a US citizen mother will be US citizens if the mother resided in the US for one year prior to the birth of the child. Children born out of wedlock to a US citizen father will acquire US citizenship if the following conditions are met:

There is an established blood relationship between the father and the child,
The father was a US citizen at the time of the birth,
The father has agreed to financially support the child until it is 18, and
Before the child is 18 it is legitimated, or the father acknowledges paternity in a document signed under oath
While these are general rules, Congress has continually amended and revised many laws relating to citizenship, particularly those dealing with the requirements for retention of citizenship. If a person believes that they have a claim to US citizenship, they should consult with an attorney for a full examination of that possibility.


About The Author

Gregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

After graduating magna cum laude from Vanderbilt University, Gregory Siskind went on to receive his law degree from the University of Chicago. For the past several years, he has been an active member of the American Immigration Lawyers Association and he currently serves as a member of the organization's Technology Committee. He is the current committee chair for the Nashville Bar Association's International Section. Greg is a member of the American Bar Association where he serves on the LPM PublishGregory Siskind has experience handling all aspects of immigration and nationality law and has represented numerous clients throughout the world. Mr. Siskind provides consultations to corporations and individuals on immigration law issues and handles cases before the Immigration and Naturalization Service, the Department of State, the Department of Labor and other government agencies. Gregory Siskind is also committed to community service. He regularly provides free legal services to indigent immigration clients and speaks at community forums to offer information on immigration issues.

Greg regularly writes on the subject of immigration law. He has written several hundred articles on the subject and is also the author of the new book The J Visa Guidebook, published by Matthew Bender and Company, one of the nation's leading legal publishers. He is working on another book for Matthew Bender on entertainment and sports immigration.

Greg is also, in many ways, a pioneer in the use of the Internet in the legal profession. He was one of the first lawyers in the country (and the very first immigration lawyer) to set up a web site for his practice. And he was the first attorney in the world to distribute a firm newsletter via e-mail listserv. Mr. Siskind is the author of the American Bar Association's best selling book, The Lawyer's Guide to Marketing on the Internet. He has been interviewed and profiled in a number of leading publications and media including USA Today, the New York Times, the Wall Street Journal, Lawyers Weekly, the ABA Journal, the National Law Journal, American Lawyer, Law Practice Management Magazine, National Public Radio's All Things Considered and the Washington Post. As one of the leading experts in the country on the use of the Internet in a legal practice, Greg speaks regularly at forums across the United States, Canada and Europe.

In his personal life, Greg is the husband of Audrey Siskind and the proud father of Eden Shoshana and Lily Jordana. He also enjoys collecting rare newspapers and running in marathons and triathlons. He can be reached by email at GSiskind@visalaw.com

Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at aballentine@visalaw.com


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