U.S. Citizenship Acquired by Birth Abroad
Written by Henry J. Chang
The laws regarding the transmission of United States citizenship to children born outside the United States can be very complex. A distinction is made between legitimate and illegitimate childen for the purposes of citizenship eligibility. In addition, the laws that were in effect at the time of the child's birth determine whether citizenship is transmitted in a particular case. Finally, depending upon when the child was born, he or she may have been subject to certain conditions subsequent, which were required for retention of citizenship.
Conditions Precedent -- Required Residence of Parent(s)
Prior to May 24, 1934, children born outside the limits and jurisdiction of the United States, whose fathers were United States citizens, acquired U.S. citizenship at birth unless the father had never "resided" in the United States prior to the child's birth. In the absence of a specific definition of "resided", the Immigration and Naturalization Service took the position that even a temporary sojourn by the U.S. citizen parent was sufficient to comply with this requirement.
Prior to May 24, 1934, U.S. citizen mothers were not permitted to transmit U.S. citizenship to their children born abroad. The Act of May 24, 1934 (the "1934 Statute") gave U.S. citizen mothers equality of status regarding their ability to transmit U.S. citizenship. However the provision was not applied retroactively. Therefore, children born before May 24, 1934 to a U.S. citizen mother and an alien father did not acquire U.S. citizenship.
On or after May 24, 1934, a child born outside the limits and jurisdiction of the United
States, whose father or mother (or both) was a citizen of the United States at the time of
the child's birth, would be considered a United States citizen provided that the U.S. citizen
parent had resided in the United States prior to the birth of the child. The previous
interpretation of "resided" continued to apply under the 1934 Statute.
The 1940 Statute became effective on January 13, 1941. The 1940 Statute defined the meaning of residence as the general place of abode. Although this did not necessarily require the establishment of a domicile or place of permanent residence, it contemplated the establishment of an actual principal dwelling
The 1940 Statute also provided for more stringent requirements for prior residence where, at the time of the child's birth, one of the parents was a U.S. citizen and the other was an alien. On or after January 13, 1941, in the case of a child born to a U.S. citizen parent and an alien parent, the U.S. citizen parent
had to have resided in the United States or its outlying possessions for 10 years, at least 5
of which were after attaining the age of 16 years in order to transmit U.S. citizenship to
In 1946, Congress modified the requirement slightly but only for the benefit of U.S. citizens who had served honorably in the U.S. armed forces during World War II. The U.S. parent's prior residence requirement could be satisfied by residence in the U.S. for 10 years, at least five of which were after attaining the age of 12 years if the U.S. citizen parent had served honorably in the U.S. armed forces after December 7, 1941 but before December 31, 1946.
On December 24, 1952, the Immigration and Nationality Act of 1952 (the "1952
Statute") became effective. As under the previous statute, where both parents were U.S.
citizens, one parent would have to have resided in the United States prior to the child's
birth in order to transmit U.S. citizenship. The meaning of residence previously applied
under the 1940 Statute was essentially the same as under the 1952 Statute.
In the case of a child born to one U.S. citizen parent and one alien parent, the U.S. citizen parent now had only to be physically present in the United States or its outlying possessions prior to the child's birth for 10 years, at least 5 of which were after the age of 14. "Physical presence" was different from the concept of "residence" which had applied under the previous statute. The physical presence requirement could be satisfied by mere presence in the United States even if the person had not established a legal residence there.
The physical presence requirement was intended to preclude extended absences from the United States during the required period. However, it was found to be too restrictive. In 1966, Congress passed an amendment which, for children born on or after December 24, 1952, permitted the transmitting U.S. citizen parent to count presence abroad in the following capacities towards the physical presence requirement:
- honorable service in the United States Armed Forces;
- employment by the United States Government;
- employment by an international organization with which the United States is associated; or
- physical presence abroad as a dependent unmarried son or daughter and a member of the household of a person employed in one of the above categories.
The Immigration and Nationality Amendments of November 14, 1986 further liberalized the transmitting U.S. citizen parent's physical presence requirements. For children born on or after November 14, 1986, a child born to one U.S. citizen parent and one alien parent would acquire U.S. citizenship if the U.S. citizen parent was physically present in the United States or its outlying possessions for at least 5 years, at least 2 of which were after attaining the age of 14 years.
Conditions Subsequent -- Required Residence of the Child
Prior to May 24, 1934, there were no requirements imposed on the child born abroad as a condition subsequent to retaining U.S. citizenship. However, the 1934 Statute did impose retention requirements on the child unless both parents were U.S. citizens.
Where only one of the child's parents was a U.S. citizen, the child would have to reside continuously in the United States for at least 5 years immediately before his 18th birthday and take the Oath of Allegiance within 6 months after his or her 21st birthday. The retention requirements contained in the 1934 statute were repealed by the Nationality Act of 1940 (the "1940 Statute"). Therefore, no one actually lost their citizenship before the retention requirements were repealed. However, the 1940 Statute retroactively applied its new retention requirements to any children born to one U.S. citizen parent and one alien parent on or after May 24, 1934.
As stated above, the 1940 Statute retroactively applied more liberal retention requirements
to children born abroad with one U.S. citizen parent and one alien parent on or after May
24, 1934. Such a child had to have resided in the United States or its outlying
possessions for a period or periods totalling at least five years between the ages of 13 and
21 in order to retain U.S. citizenship. The child would also lose U.S. citizenship if he or
she did not establish residence by the time he or she reached the age of 16 or the child's
continued residence abroad made it impossible to comply with the residence requirements.
The retention requirement was made specifically inapplicable to a child whose U.S. citizen parent, at the time of the child's birth, was employed by the United States Government, certain United States organizations, or an international organization with which the United States was associated. However, the 1946 amendment which permitted relaxed prior residence requirements for a U.S. citizen parent who had served honorably in the United States Armed Forces during World War II specified that citizenship retention requirements would apply to the children of such parents.
The 1952 Statute imposed a revised requirement on any such children to be
continuously physically present in the United States for at least 5 years between the ages
of 14 and 28 in order to retain citizenship. The retention requirement was retroactively
applied to any person born on or after May 24, 1934.
It was not certain whether or not persons who had already lost citizenship under the 1940 Statute's retention requirements would be reinstated even if they were able to comply with the 1952 Statute's retention requirements. However, as persons who have previously lost citizenship for failure to comply with prior retention requirements may now regain their citizenship by taking the Oath of Allegiance (discussed below), the issue is no longer as significant as it once was.
The physical presence requirement was found to be too restrictive and it was soon modified in a 1957 amendment. The amendment provided that absences from the United States aggregating less than 12 months would not break the continuity of physical presence for retention of citizenship.
Recognizing the hardships resulting from the 1952 Statute's retention requirements, Congress passed an amendment in 1972. The Act of October 27, 1972 (the "1972 Statute") liberalized the retention requirement so that any person who had acquired U.S. citizenship by birth abroad to one U.S. citizen parent and one alien parent was now required to be continuously and physically present in the United States for only 2 years between the ages of 14 and 28. In addition, the 1972 Statute provided that absences from the United States for an aggregate of less than 60 days during the required 2 year period would not break the continuity of physical presence for the purpose of satisfying the retention requirements. Finally, the 1972 Statute provided relief from the normal retention requirements for a child whose alien parent was naturalized as a U.S. citizen before the child reached the age of 18 and the child began residing in the United States before attaining that age.
The 1972 Statute left unchanged the language in the 1952 Statute which provided that it was applicable to persons born on of after May 24, 1952. It is at least arguable that the liberal retention requirements of the 1972 Statute should apply even to persons born on or after that May 24, 1952 who had already lost their citizenship for failure to comply with previous retention requirements. However, as persons who have previously lost citizenship for failure to comply with prior retention requirements may now regain their citizenship by taking the Oath of Allegiance, the issue is no longer as significant as it once was.
Although, taking the Oath of Allegiance reinstates U.S. citizenship only from the date of the oath, unless establishing U.S. citizenship during the period between purported loss of citizenship and the taking of the oath of allegiance is crucial (such as where the individual seeks to transmit U.S. citizenship to a child born during this period), the whether or not the 1972 Statute is retroactively applied will not be relevant.
On October 10, 1978, the retention requirements were completely repealed.
However, Congress did not give this statute retroactive effect. Although any persons who
had not yet lost citizenship for failure to satisfy the previous retention requirements were
relieved of the requirement to do so, those persons who had lost U.S. citizenship prior to
October 10, 1978 were not reinstated.
Where the U.S. Citizen is the Mother
As mentioned above, the statutes prior to 1934 did not permit the transmission of citizenship through a U.S. citizen mother. However, the 1934 Statute permitted either the father or mother to transmit U.S. citizenship. This was construed as also authorizing the transmission of citizenship to an illegitimate child born abroad on or after May 24, 1934 to a U.S. citizen mother. However, the 1934 Statute did not apply retroactively to births prior to May 24, 1934.
The 1940 Statute was the first to specifically adopt provisions regulating the status of illegitimate children. It provided that, where paternity had not been established before the child reached the age of 21 through legitimation (normally accomplished by the marriage of the child's parents) or court adjudication, an illegitimate child could acquire U.S. citizenship through its citizen mother as long as the mother had previously resided in the United States or one of its outlying possessions. .
The 1940 Statute applied to illegitimate children born either before or after the date of its enactment. While it did not confer U.S. citizenship on an illegitimate child of a U.S. citizen mother who had been legitimated by an alien father prior to the child reaching the age of 21, it did not adversely affect the status of anyone who acquired U.S. citizenship prior to such legitimation. Children born on or after January 13, 1941 could acquire U.S. citizenship at birth under the 1940 Statute and did not lose such status, even they were later legitimated by their alien father. Further, children who were born after May 24, 1934 but before January 13, 1941 could acquire U.S. citizenship at birth under the 1934 Statute and did not lose such status as a result of the 1940 Statute, even if they were later legitimated by their alien father. In other words, an illegitimate child born to a U.S. citizen mother and alien father would only be denied citizenship if he or she:
- was born before May 23, 1934;
- was legitimated before reaching the age of 21; and
- was legitimated before January 13, 1941(the effective date of the 1940 Statute).
In light of the 1994 amendment (discussed below) which retroactively authorizes the transmission of U.S. citizenship by U.S. citizen mothers to children (legitimate or illegitimate) born prior to May 23, 1934, the issue of legitimation by an alien father is no longer relevant to the transmission of U.S. citizenship by a U.S. citizen mother to an illegitimate child.
The 1952 Statute provided that an illegitimate child acquired U.S. citizenship from a U.S. citizen mother if the mother was a U.S. citizen at the time of the child's birth and had been physicially present in the United States or one of its outlying possessions for a continuous period of one year. This provision did not adversely affect the status of anyone who had previously acquired U.S. citizenship. This provision is still in effect.
Where the U.S. Citizen Parent is the Father
Where the U.S. citizen parent is the father or an illegitimate child, the issue of legitimation becomes important. Prior to the 1940 Statute, there was no statutory provision defining the rights of an illegitimate child born to a U.S. citizen father. However, the prior case law had determined that legitimation of an illegitimate child in accordance with the laws of the father's domicile retroactively conferred U.S. citizenship on the child, provided that the father had resided in the United States prior to the child's birth. According to these cases, there was no time limit for when legitimation had to occur.
The 1940 Statute provided that citizenship rights could be transmitted to such children, under the same conditions as a legitimate child, only if the child's paternity took place while the child was still under the age of 21. Paternity could be established by either legitimation or court adjudication.
A July 31, 1946 amendment provided that, even if no legitimating acts occurred, illegitimate children of U.S. citizen fathers could still obtain U.S. citizenship at birth but only if:
- the father served in the U.S. armed forces during World War II (after December 7, 1941 and before December 31, 1946); and
- the father had resided ten years or more in the U.S., at least five years of which were after the age of 12.
The 1952 Statute slightly modified the conditions for the acquisition of U.S. citizenship by illegitimate children born after its effective date. It authorized the transmission of U.S. citizenship from the father if the transmitting father satisfied the prior residence requirements applicable to legitimate children. The provision for adjudication of paternity was omitted from the 1952 Statute. However, the broad definition of legitimation in the 1952 Statute permitted legitimation in accordance with the law of the father's residence or domicile or the child's residence or domicile.
Amendments contained in the Immigration and Nationality Act Amendments of November 14, 1986 granted citizenship at birth to illegitimate children born abroad to U.S. citizen fathers provided that the following applied:
- the father has U.S. citizenship at the time of the child's birth;
- the blood relationship between the child and the father is established by clear and convincing evidence;
- the father (unless deceased) agrees in writing to provide financial support for the child until the child reaches 18 years of age;
- before the child reaches the age of 18, one of the following has occurred:
- the child is legitimated under the law of the child's residence or domicile;
- the father acknowledges paternity of the child in writing under oath; or
- paternity is established by adjudication in a competen court.
The 1986 amendments apply only to persons who had not attained the age of 18 on November 14, 1986. Persons born prior to that date were subject to the previous statutory standard. Persons whose paternity had been established by legitimation before November 14, 1986 were also subject to the previous standard. However, a person who was at least 15 but under 18 on November 14, 1986 could choose either standard to qualify for U.S. citizenship.
Retention Requirements for Illegitimate Children
The retention requirements applicable to legitimate children are inapplicable where U.S. citizenship is transmitted by a U.S. citizen mother to an illegitimate child. Such a child obtains unconditional U.S. citizenship and is not required to establish residence in the U.S. or to take any other action to retain such citizenship. However, where the U.S. citizen parent is the father, statutes before 1986 place an illegitimate child in the same position as a legitimate child once legitimation has occurred. Such a child is therefore required to establish residence in the United States in the same manner as a legitimate child.
The Immigration and Nationality Technical Corrections Act of 1994 (Pub. L. No. 103-416, 108 Stat. 4305) ("INTCA") has given rise to several changes in the Immigration and Nationality Act ("INA") which relate to the transmission, at birth, of U.S. citizenship to children born abroad. The implementation of INTCA has not affected the various residence/physical presence requirements imposed on U.S. citizen parents in previous statutes. In order to determine whether or not the U.S. citizen parent has complied with these requirements, the statute that applied at the time of the child's birth must be considered.
However, INA §301(h) now provides that any person born before noon (Eastern
Standard Time) on May 24, 1934 outside the U.S. to an alien father and a U.S. citizen
mother who resided in the U.S. is considered to be a U.S. citizen at birth. The provision is
to be retroactively applied as though the amendment had been made at the time of the
person's birth, subject to only two exceptions which are outside the scope of this article.
Also, any provision of law that provides for a person's loss of citizenship or nationality if a
person failed to come to, or reside or be physically present in the United States shall not
apply to a person claiming citizenship under §301(h).
Prior to INTCA, a considerable number of children born to one alien parent and
one U.S. citizen parent lost their citizenship as a result of their failure to satisfy the various
retention requirements which were in effect from May 24, 1934 to October 10, 1978.
INA §324(d)(1) now provides that a person who was a U.S. citizen at birth who lost
citizenship for failing to meet certain physical presence retention requirements in effect
before October 10, 1978 will, upon taking the oath of allegiance, once again be considered
be a U.S. citizen and have the status of a U.S. citizen by birth. Persons born prior to May 24, 1934 to a U.S. citizen mother and an alien father and persons born on or after May 24, 1934 but before October 10, 1978 to a U.S. citizen parent and one alien parent, who lost U.S. citizenship for failure to comply with the retention requirements may now regain citizenship in light of these amendments.