Immigration TALK: Acquiring U.S. Citizenship through Birth to a U.S. Citizen Parent

Jul 17, 2011 News

By Attorney Gail S. Seeram
This past week, the question of deriving U.S. citizenship from a U.S. citizen parent arose more than once, so I wanted to educate my readers on this sometimes confusing law. We all know that if you are born in the United States, then you are a U.S. citizen by birth under the Fourteenth amendment of the U.S. Constitution.
Note, if you are born in the United States, your parent’s immigration status is irrelevant in determining whether you are a U.S. citizenship by birth. If you are born in the United States, your birth certificate is proof of your U.S. citizenship.
In certain cases, a child born outside the U.S. where one or both parents are U.S. citizens may acquire U.S. citizenship at birth. The child may still acquire U.S. citizenship where born out-of-wedlock. The U.S. immigration laws require the U.S. citizen parent to reside or be physically present in the U.S. for certain periods prior to the birth of the child so that he or she may “transmit” citizenship.
The specific requirements depend on the law in effect at the time of the child’s birth. A child born outside the U.S. who acquires citizenship is a citizen at the moment of birth and does not need a certificate of citizenship. In the situation where a child is born abroad to a U.S. citizen, it is recommended to report the birth to the local U.S. Embassy and submit required evidence to prove child is a U.S. citizen.
Further, a child born outside the U.S. may become a U.S. citizen by virtue of his or her parent’s naturalization. One becomes a naturalized U.S. citizen when one applies for U.S. citizenship after residing as a permanent resident for five years (three years if married to a U.S. citizen), pass a reading/writing test and government history test, and demonstrate good moral character.
A child could be a derivative U.S. citizen through its parent’s naturalization while the child was under age 18 and the child resided in the U.S. after lawful admission as a permanent resident (green card holder). The law before June 2001 required both parents or the parent with legal custody to be naturalized U.S. citizens before the child’s eighteen birthday. The prior law required proving which parent had legally custody where child born out-of-wedlock or parent’s were legally separated or divorced.
The law since June 2001 allows for a child to derive citizenship as long as one parent is a citizen by birth or naturalization, the child is under age 18, the child is residing in the U.S. as a lawful permanent resident, and the child is in the legal and physical custody of the U.S. citizen parent. A child deriving U.S. citizenship in this manner may apply directly for a U.S. passport.
Also, the child can apply for a Certificate of Citizenship with U.S. Citizenship and Immigration Services.
Lastly, step-children of a U.S. citizen are precluded from deriving or acquiring U.S. citizenship from their step-parent because a step-child is not within the definition of a “child” for purposes of automatic citizenship.
Again, these rules are quite complex and the question of whether a child is a U.S. citizen through birth to U.S. citizen parents depends on the laws in effect when the child was born or the laws in effect when the parent became a naturalized U.S. citizen.

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Immigration TALK: Acquiring U.S. Citizenship through Birth to a U.S. Citizen Parent

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