Derivative Citizenship

DERIVATIVE CITIZENSHIP
Acquired from Parents

§§ 301, 309, 320, 321, 322 of the Immigration and Nationality Act of 1990,
Pub. L. No. 101-649, __ Stat. ___, 8 U.S.C. § 1412, 1420, 1431, 1432, 1433.
8 C.F.R. §§ 301.1, 306.2, 322.2 (1998).

Introduction

Generally, all individuals born in the United States and subject to its jurisdiction of the United States are citizens (e.g., children of diplomatic officials, etc.). Still, other individuals born outside the United States may claim United States citizenship derivatively from a parent who at the time of the individual's birth was a United States citizen. The legal requirements for Derviative Citizenship are extremely complex varying from decade to decade and are often so confusing that one can only figure the regulations from a complicated chart.

Below are a few common examples of ways in which U.S. citizenship can be derived from a U.S. citizen parent for a child born outside the borders of the United States.

Acquisition of U.S. Citizenship By a Child Born Abroad

Birth Abroad to Two U.S. Citizen Parents in Wedlock: A child born abroad to two U.S. citizen parents acquires U.S. citizenship at birth under § 301(c) of the Immigration and Nationality Act (INA).

Birth Abroad to One Citizen and One Alien Parent in Wedlock: A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under § 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father: A child born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under § 301(g) INA, as made applicable by § 309(a) INA provided:

A blood relationship between the applicant and the father is established by clear and convincing evidence;
The father had the nationality of the United States at the time of the applicant's birth;
The father (unless deceased) had agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years, and
while the person is under the age of 18 years -- (a) applicant is legitimated under the law of their residence or domicile; (b) father acknowledges paternity of the person in writing under oath, or; (c) the paternity of the applicant is established by adjudication court.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under § 301(g) INA, as made applicable by § 309(c) INA if the mother was a U.S. citizen at the time of the child's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

Birth Abroad to One Citizen and One Alien Parent in Wedlock, upon Naturalization (Automatically Acquired): A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship upon naturalization under § 320(a) of the INA, provided that the alien parent is naturalized while the child is under the age of eighteen (18) years; and the child is residing in the U.S. pursuant to a lawful admission for permanent residence at the time of naturalization and begins to reside permanently in the U.S. while under the age of eighteen (18). This section may apply to an adopted child only if the child residing in the U.S. at the time of naturalization of the adoptive parent, in the custody of his adoptive parents, and pursuant to a lawful admission for permanent residence. See § 320(b).

Birth Abroad to Alien Parents, or Alien Parent and One Citizen (in or out of Wedlock): Under § 321(a), a child born abroad to alien parents, or of an alien parent and a citizen parent becomes a citizen of the U.S. upon the fulfillment of the following conditions.(1) the naturalization of both parents; or (2) the naturalization of the surviving parent if one of the parents is deceased; or (3) the naturalization of the parent having legal custody of the child when there has been a lawful separation of the parents or the naturalization of the mother if hte child was born out of wedlock and the paternity has not yet been established by legitimatization; and if (4) such naturalization takes palce while the child is under eighteen (18) years of age; and; (5) the child is residing in the U.S. pursuant to a lawful admission for permanent residence. This provision of law may apply to an adopted child only if the child residing in the U.S. at the time of naturalization of the adoptive parent, in the custody of his adoptive parents, and pursuant to a lawful admission for permanent residence. See § 321(b)

For more information about applying for Derivative Citizenship, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed an attorney.