Citizenship by birth for foreign-born child

The U.S. law on citizenship by birth incorporates two traditional legal principles:

Jus soli ("right of the soil") - under which citizenship results from being born in the U.S.

jus sanguinis ("right of the blood") - under which citizenship results from having an American parent or parents.

Each of these principles is subject to certain restrictions. For example, children born in the U.S. to foreign diplomats are not U.S. citizens. Also, children born abroad to parents who have U.S. citizenship but have never lived in the U.S. are not U.S. citizens (this rule being designed to prevent the proliferation of endless generations of foreign-born and -raised "Americans").

Section 301 of the INA [8 USC § 1401] defines the following classes of people as having U.S. citizenship from the time of birth:

* Anyone born in the U.S. and subject to its jurisdiction (basically meaning anyone other than a child of foreign government representatives with diplomatic immunity);

* Indians (Native Americans) and other aboriginal people born in the U.S.;

* Anyone born outside the U.S., if at least one parent is a U.S. citizen and certain residency or physical presence requirements were fulfilled by the citizen parent or parents prior to the child's birth;

* Anyone who is found in the U.S. while under five years of age, whose parents cannot be identified, and who is not shown prior to his or her 21st birthday to have been born outside the U.S.

The only part of this section that is mandated by the 14th Amendment is the part giving citizenship to anyone born in the U.S. and subject to its jurisdiction. The Supreme Court, in Rogers v. Bellei, held that the citizenship status of a person born outside the U.S. to an American parent is not constitutionally protected.

Under certain conditions, children born outside the U.S. may have U.S. citizenship by birth.

This depends on whether one or both parents have U.S. citizenship, how long (if at all) the American parent(s) lived in the U.S. prior to the child's birth, and whether the parents were married to each other or not.

Under the current law, if both parents are U.S. citizens and are married, then the child is a U.S. citizen if either parent had a "residence" in the U.S. at any time in his or her life prior to the child's birth.

It appears that physical presence in the U.S. for at least one year (even if it was as an infant) is considered sufficient to establish that a parent had a "residence" in the U.S. for purposes of transmitting citizenship.

If one parent is a U.S. citizen, and the other is not, and the parents are married, then the current law says the child is a U.S. citizen if the American parent was physically present in the U.S. for one or more periods of time totaling at least 5 years, at some time or times in his or her life prior to (but not necessarily immediately prior to) the child's birth. Additionally, at least two years out the required five years of physical presence must have taken place after the parent's 14th birthday; thus, for example, a parent who was born and grew up in the U.S., but who left before reaching age 16 and never returned, doesn't meet the requirement.
Note that physical presence does not require residence in the U.S.. Time spent on vacation in the U.S. may be counted toward the five-year total.

If a foreign-born child's parents are not married, the child's claim to U.S. citizenship depends on whether the American parent is the mother or the father.

Section 309 of the INA [8 USC § 1409] grants U.S. citizenship at birth to an "illegitimate" child if his/her American mother had previously spent at least one continuous full year in the U.S.

If the child's American parent is his/her father, however, the child has U.S. citizenship at birth only if the father's paternity is formally established and the father agrees in writing to support the child financially. This sex-based disparity was upheld by the Supreme Court in 2001 (Nguyen v. INS).

It is important to note that a foreign-born child whose parents have fulfilled the residency or physical presence requirements is a U.S. citizen by birth. This citizenship is automatic.