Citizenship from Birth for Certain Children of U.S. Citizen Parents Born Abroad

INTRODUCTION

In the majority of situations in which a child is born outside of the United States and one or both of his or her parents are U.S. Citizens, the child will be a U.S. citizen from birth. This article will look at the situations in which children born to U.S. citizen parent(s) abroad are entitled to citizenship from birth, and explain how parents in these situations may go about obtaining proof of their child's citizenship. In any scenarios when the parents are unsure if they will transmit citizenship automatically, they should consult an experienced immigration practitioner if there is any possibility that they may deliver a child abroad.

Please note that this article generally provides rules for when children born abroad to U.S. citizens are U.S. citizens from birth now. For people in some of these scenarios born before November 13, 1986, their claims to citizenship from birth would be evaluated under the statutes that were in force at the time. This article will note some of those cases where it is also applicable to the issue concerning this article, but it is not intended to be a guide for them.

SCENARIOS IN WHICH A CHILD BORN TO U.S. CITIZEN PARENT(S) ABROAD IS A CITIZEN FROM BIRTH

PARENTS ARE MARRIED AND AT LEAST ONE PARENT IS A U.S. CITIZEN

Under current law, a child who is born to married parents and one or both parents are U.S. citizens; the child is a U.S. citizen from birth in the following scenarios:

• When both parents are U.S. citizens, the child shall be a U.S. citizen from birth provided that at least one of the parents has had a residence in the United States, or one of its outlying possessions (American Samoa and Swains Island),[1] prior to the birth[2] or 
• When one parent is a U.S. citizen who has been physically present in the United States or one of its outlying possessions for a continuous period of at least one year prior to the birth, and the other parent is a U.S. national;[3] or 
• When one parent is an alien, and the other parent is a U.S. citizen who, prior to the birth, was physically present in the United States for at least five years (need not be consecutive) with at least two years having occurred before the U.S. citizen reached 14 years of age. This time includes periods of honorable service in the United States Armed Forces and periods of employment overseas with the United States Government or with certain international organizations.[4] This period also includes time that the U.S. citizen parent spent as a dependent of a person serving honorably in the United States Armed Forces or working overseas for the United States government or certain international organizations. These provisions are applicable to all persons born on or after December 24, 1952.[5] 

Pursuant to statute, "physical presence" is determined based on what the laws were for physical presence at the time of the birth.[6] Thus, for any birth occurring overseas now, the above rules on physical presence are the requirements. However, for births occurring between December 24, 1952, and November 13, 1986, the physical presence requirement is 10 years physical presence with at least 5 years occurring after the age of 14.[7] If the parent was naturalized as a U.S. citizen, time before and after naturalization may count in determining physical presence toward 5-year physical presence requirement.[8]

Normally, persons born in American Samoa or Swains Island are U.S. nationals at birth rather than U.S. citizens. However, there is a special provision for children born to a U.S. citizen parent in one of the two U.S. outlying possessions:

• When one parent is a U.S. citizen and has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth.[9] 

PARENTS ARE UNMARRIED AND ONLY MOTHER IS A U.S. CITIZEN

Under current law, children who are born to unmarried parents, with the mother being a U.S. citizen, are U.S. citizens from birth under the following scenario:

• The mother is a U.S. citizen who has been physically present in the United States or one of its outlying possessions for a continuous person of at least one year (the father in this scenario is not relevant to whether the child inherits his or her mother's citizenship).[10] 

PARENTS ARE UNMARRIED AND ONLY FATHER IS A U.S. CITIZEN

The scenario is a bit more complicated if a child is born to unmarried parents and only the father is a U.S. citizen. For all scenarios where a child is born overseas, "presumption of alienage" for persons born outside of the United States that the child's parents must overcome.[11] This can be especially difficult in scenarios where the child's mother is not a U.S. citizen and the child's paternity cannot be easily ascertained. In order for the child to be a U.S. citizen from birth under this scenario, the following must be true:

• The blood relationship between the child and U.S. citizen father is established by clear and convincing evidence,[12] 
• Father was a U.S. citizen at the time of birth,[13] 
• Provided that the father is living, he has agreed in writing to provide child support until the child turns 18,[14] 
• And, while less than 18 years of age, the child must be legitimized under law of where he or she lives, and the father must either acknowledge his paternity of the child or the paternity of the child is established by a competent court.[15] 

In cases where the U.S. citizen father is not inclined to cooperate in order to demonstrate that he is the father of a child (such as to establish that the child was entitled to U.S. citizenship from birth), and the non-U.S. citizen mother wants the child to have U.S. citizenship, she should consult with an experienced immigration practitioner who may help her obtain the requisite proof through adjudication that her child was entitled to U.S. citizenship from birth.

SPECIAL CASE: ASSISTED REPRODUCTIVE TECHNOLOGY

In order for a child born using assisted reproductive technology to be a U.S. citizen from birth under the preceding provisions, one of the following must be true:

• The genetic father must be a U.S. citizen; or 
• The genetic mother must be a U.S. citizen; or 
• The genetic mother must be a U.S. citizen and the gestational and legal mother of the child at the time and place of the child's birth.[16] 

In most situations, the parents will likely be required to provide details of the circumstances surrounding the child's conception in order to establish that the child was a U.S. citizen from birth.

ADOPTED CHILDREN

None of the preceding provisions apply to children adopted by U.S. citizen parents abroad.[17] [18]

OBTAINING PROOF OF CITIZENSHIP

In situations where a child is born overseas and eligible for citizenship from birth on account of the citizenship of one or both parents, his or her parents should contact the nearest U.S. embassy or consulate to apply for an FS-240, Consular Report of Birth Abroad of a Citizen of the United States of America.[19] The FS-240 serves as proof of citizenship. Since obtaining an FS-240 is the easiest way to obtain proof of citizenship expeditiously, eligible U.S. citizen parents who anticipate that they may give birth to a child overseas are well advised to ensure that they know the location of the nearest U.S. embassy or consulate.

Parents who return to the United States without acquiring an FS-240 may instead file a Form N-600, Application for Certificate of Citizenship[20] at their nearest United States Citizenship and Immigration Services (USCIS) office.

A child who is lawfully a citizen at birth does not need proof of citizenship in order to be a U.S. citizen.[21] However, failure to obtain documentation that a child born to U.S. citizen parents abroad is a U.S. citizen may lead to complications later when seeking to obtain a U.S. passport or registering for a U.S. school.[22]

Please visit the myattorneyusa.com website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

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[1] The two "outlying possessions" pursuant to 8 C.F.R. § 1101(29) are Swains Island and American Samoa
[2] INA § 301(c)
[3] INA § 301(d)
[4] Defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288)
[5] INA § 301(g)
[6] S. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 1788, citing; U.S. v. Flores-Villar, 536 F.3d 990, 994-98 (9th Cir. 2008), affirmed by an equally divided court, 564 U.S. __, 131 S.Ct. 2312 (2011) (per curiam) [holding that a father could not transmit citizenship to child under current law requiring 5 years of physical presence in the United States since the law required 10 years of physical presence in the United States when the child was born]
[7] Kurzban 1858
[8] Kurzban 1789
[9] INA § 301(e)
[10] INA § 309(c)
[11] S. Kurzban 1790, citing; 8 C.F.R. ; Matter of Tijerina-Villarreal, 13 I&N Dec. 327, 330 (BIA 1969), citing Matter of A.M., 7 I&N Dec. 332, 336 (BIA 1956) and U.S. ex rel. Rongetti v. Neely, 207 F.2d 281, 284 (7th Cir. 1953); 8 C.F.R. pt. 301; 8 C.F.R. § 341.2(c) [explaining that the burden is on the petitioner to rebut alienage]
[12] INA § 309(a)(1)
[13] INA § 309(a)(2)
[14] INA § 309(a)(3)
[15] INA §§ 309(1)(4)(A)-(C)
[16] Kurzban 1788, citing;
[17] Kurzban 1789, citing; Marquez-Marquez v. Gonzalez, 455 F.3d 548 (5th Cir. 2006); Colainni v. INS , 490 F.3d 185, 197-89 (2d Cir. 2007)
[18] Kurzban 1789, for obtaining U.S. citizenship for children adopted abroad, see instead INA § 322
[19] Follow the link for info from the Department of State regarding Form FS-240s
[20] Follow the link for the USCIS page on instructions for filing Form N-600
[21] Kurzban 1788, citing; U.S. v. Smith-Baltither, 424 F.3d 913, 920-21 (9th Cir. 2005)
[22] "Birth Abroad of a U.S. Citizen," CBP, September 4, 2014 (Retrieved Jul. 28, 2015), available at https://help.cbp.gov/app/answers/detail/a_id/1043/~/birth-abroad-of-a-u.s.-citizen

Sources:

• Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 1788-90, 1853, Print. Treatises & Primers.
• "Birth Abroad of a U.S. Citizen," CBP, September 4, 2014 (Retrieved Jul. 28, 2015), available at https://help.cbp.gov/app/answers/detail/a_id/1043/~/birth-abroad-of-a-u.s.-citizen
• "Birth of U.S. Citizens Abroad," DOS, Bureau of Consular Affairs, (Retrieved Jul. 28, 2015), available at http://travel.state.gov/content/passports/english/abroad/events-and-records/birth.html