NYC Immigration Lawyer Blog: Birth Abroad

Introduction

I. Acquiring Citizenship at Birth When Born Abroad

1. Children Born in Wedlock

1a. Where Both Parents are U.S. Citizens

1b. Where One Parent is a U.S. Citizen (after November 14, 1986)

1c. Where One Parent is a U.S. Citizen (Between October 10, 1952 and November 14, 1986)

2. Children Born Out of Wedlock

2a. Child of a U.S. Citizen Father

2b. Child of a U.S. Citizen Mother

II. Acquiring Citizenship after Birth Abroad

3. Child is Under the Age of 18, or Not Yet Born, on February 27, 2001

4. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001

4a. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001 [Second Scenario]

5. Adopted Child Who Was Born Abroad

5a. IR-3 and IH-3 Categories

5b. IR-4 and IH-4 Categories

Introduction

U.S. immigration law recognizes the importance and sanctity of U.S. citizenship. Because of this, there are provisions of U.S. immigration law that make it easy in many scenarios for U.S. citizen parents to transfer citizenship to a child born abroad.

Under current law, provided that certain conditions are met, a U.S. citizen parent may transfer citizenship to his or her child automatically. While the parent should still obtain documentation of the child’s citizenship, documentation is not required for the child to be a U.S. citizen where conditions are met.

Furthermore, there are scenarios in which citizenship may be transferred to a child after birth and before the child turns eighteen years of age.

U.S. Citizenship and Immigration Services (USCIS) published a very clear and helpful guide explaining when citizenship is transferred from a U.S. citizen parent to a child born abroad, and when citizenship may be transferred after birth abroad. You may read by following this link: USCIS Policy Manual guidance on Children of U.S. Citizens.

I. Acquiring Citizenship at Birth When Born Abroad

1. Children Born in Wedlock:

1a. Where Both Parents are U.S. Citizens

The child is a U.S. citizen at birth if at least one of the parents had lived in the United States, including in one of its territories, at and for any time prior to the birth of the child. It is important, though not a prerequisite for the child to be a U.S. citizen, to report the fact of birth to the nearest U.S. Consulate and have Certificate of Birth Abroad issued.

1b. Where One Parent is a U.S. Citizen (after November 14, 1986)

The child is a Citizen of the United States at birth if:

The birth occurred on or after November 14, 1986;
The parents were married at the time of the birth;
U.S. Citizen parent was physically present in the United States or its territories for at least five years or longer prior to the birth of the child;
At least two of the five years of physical presence occurred before the parent turned 14 years of age.

The following is included for purpose of meeting this physical presence requirement:

Serving honorably in the U.S. Armed Forces abroad;
Employment with the U.S. Government abroad;
Employment with certain international organizations abroad;
Time spent abroad as an unmarried son or daughter or a member of the household of one of the above.

1c. Where One Parent is a U.S. Citizen (Between October 10, 1952 and November 14, 1986)

The child is a Citizen of the United States at birth if:

The birth occurred before November 14, 1986 but after October 10, 1952;
The parents were married at the time of the birth;
U.S. Citizen parent was physically present in the United States or its territories for at least ten years prior to the birth of the child;
At least five of the ten years of physical presence occurred before the parent turned 14 years of age.

The following is included for purpose of meeting this physical presence requirement:

Serving honorably in the U.S. Armed Forces abroad;
Employment with the U.S. Government abroad;
Employment with certain international organizations abroad;
Time spent abroad as an unmarried son or daughter or a member of the household of one of the above.

2. Children Born Out of Wedlock

2a. Child of a U.S. Citizen Father

The provisions listed above for a child born in wedlock apply to a child born out of wedlock outside of the United States claiming citizenship through a U.S. citizen father if:

A blood relationship between the child and the father is established by clear and convincing evidence;
The child's father was a U.S. citizen at the time of the child's birth;
The child's father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age; and

One of the following criteria is met before the child reaches 18 years of age:

             o    The child is legitimated under the law of his or her residence or domicile;
             o    The father acknowledges in writing and under oath the paternity of the child;
             o    The paternity of the child is established by adjudication of a competent court.

Furthermore, the five/two year physical presence requirement applies to the U.S. citizen father for purpose of transmitting citizenship to the child.

The above law is effective for children who turned 18 years of age prior to November 13, 1986. Under the previous law, a child was required to be legitimized before the age of 21 and the U.S. citizen father was required to meet the ten/five year physical presence requirement. For more detail on the old rules for derivation of citizenship from a U.S. citizen father in this scenario, please follow this link.

2b. Child of a U.S. Citizen Mother

A child born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:

The child was born after December 23, 1952;
The mother was U.S. citizen at the time of the child's birth;
The mother was physically present in the United States or outlying possession for one continuous year prior to the child's birth (note there are no exceptions from the physical presence requirement in this scenario).

II. Acquiring Citizenship after Birth Abroad

3. Child is Under the Age of 18, or Not Yet Born, on February 27, 2001

At least one parent was a U.S. citizen or became a U.S. citizen by naturalization;
The child was residing in the legal and physical custody of the U.S. citizen parent(s);
The child is admitted to the United States as a lawful permanent resident (LPR).

4. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001

Both parents became U.S. citizens before the child turned 18 years of age;
The child became an LPR before turning 18 years of age.

4a. Where the Child Was Under the Age of 18 at any Time between December 24, 1952 and February 26, 2001 [Second Scenario]

The child became an LPR before turning 18 years of age;
One parent became a U.S. citizen before the child turned 18 years of age;
The child was in the legal and physical custody of only one parent, who was a U.S. citizen, where the other parent was;

             o    Dead;
             o    Legally separated from the parent with legal and physical custody of the child;
             o    Or the child was born out of wedlock and his or her legitimacy was never established.

5. Adopted Child Who Was Born Abroad

The child was adopted by a U.S. Citizen parent;
The child resides legally in the United States;
The child is in the legal and physical custody of the U.S. citizen parent;
The child meets those and the following conditions after February 27, 2001, but before his or her 18th birthday:

o The Child was adopted by the parent prior to the Child's 16th birthday or, if the sibling of a child who was also adopted by the same parent prior to his or her 16th birthday, prior to the Child's 18th birthday,
o Resided with the parent for at least two years.

5a. IR-3 and IH-3 Categories

The child was adopted by a U.S. Citizen parent;
The child resides legally in the United States;
The child is in the legal and physical custody of the U.S. citizen parent
The child meets those and the following conditions after February 27, 2001, but before his or her 18th birthday:

o The child was admitted into the United States as an orphan (IR-3) or as a Convention Adoptee (IH-3)
o His or her adoption by the U.S. Citizen parent(s) was completed abroad

5b. IR-4 or IH-4 Categories

The child was adopted by a U.S. Citizen parent;
The child resides legally in the United States;
The child is in the legal and physical custody of the U.S. citizen parent
The child meets those and the following conditions after February 27, 2001, but before his or her 18th birthday:

o The child was admitted into the United States as an orphan (IR-4) or as a Convention Adoptee (IH-4) in order to have his or her adoption completed by the U.S. citizen parent(s) in the United States;
o The adoption is completed before the child’s 18th birthday.

Please visit the nyc immigration lawyers 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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