Chapter 3 - U.S. Citizens at Birth (INA 301 and 309)
A. General Requirements for Acquisition of Citizenship at Birth
A person born in the United States who is subject to the jurisdiction of the United States is a U.S. citizen at birth, to include a child born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.[1]
In general, a person born outside of the United States may acquire citizenship at birth if all of the following requirements are met at the time of the person’s birth:
- The person is a child[2] of a U.S. citizen parent(s);
- The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession before the person’s birth in accordance with the applicable provision;[3] and
- The person meets all other applicable requirements under either INA 301 or INA 309.
Until the Act of October 10, 1978, persons who had acquired U.S. citizenship through birth outside of the United States to one U.S. citizen parent had to meet certain physical presence requirements to retain their citizenship. This legislation eliminated retention requirements for persons who were born after October 10, 1952. There may be cases where a person who was born before that date, and therefore subject to the retention requirements, may have failed to retain citizenship.[4]
An officer should determine whether a person acquired citizenship at birth by referring to the applicable statutory provisions and conditions that existed at the time of the person’s birth. These provisions have been modified extensively over the years.[5] The following sections provide the current law.
B. Child Born in Wedlock[6]
USCIS must determine whether a child is born in wedlock or out of wedlock at the time of birth in order to determine which citizenship provision is applicable.[7]
USCIS considers a child to be born in wedlock when the legal parents are married to one another at the time of the child’s birth and at least one of the legal parents has a genetic or gestational relationship to the child.
USCIS views post-birth formalization of the legal relationship between a parent and a child as establishing the relationship from the time of the child’s birth. This is because the relevant jurisdiction’s recognition of the legal relationship between the parent and child is based on the circumstances of the child’s conception and birth, including, for example, the existence of a valid surrogacy contract memorializing all parties’ understanding of parental rights pre-conception. This rule applies unless otherwise specified in the law of the relevant jurisdiction or in the applicable court order.
A child born outside the United States acquires U.S. citizenship at birth under INA 301 if at the time of the child’s birth:
-
The person is a child[8] of a U.S. citizen parent(s);
-
The child’s legal parents are married to each other and at least one legal parent is the genetic or gestational parent of that child at the time of the child’s birth; and
-
The parent meets the residence or physical presence requirements under the applicable law and the child meets all other applicable requirements under INA 301.
The tables below provide examples of different relationships and whether USCIS considers the child to be born in or out of wedlock at the time of birth in each scenario.
|
Marriage Between[9] … |
… and |
In or Out of Wedlock? |
|---|---|---|
|
Legal genetic and gestational mother |
Legal genetic father |
In wedlock |
|
Legal genetic and gestational mother |
Non-genetic legal mother or father |
In wedlock |
|
Legal genetic and gestational mother |
Non-legal mother or father |
Out of wedlock |
|
Marriage Between[11] … |
… and |
In or Out of Wedlock? |
|---|---|---|
|
Legal genetic and non-gestational mother |
Legal genetic father |
In wedlock |
|
Legal genetic and non-gestational mother |
Non-genetic legal mother or father |
In wedlock |
|
Legal genetic and non-gestational mother |
Legal gestational mother |
In wedlock |
|
Legal genetic and non-gestational mother |
Non-genetic and non-legal mother or father |
Out of wedlock |
|
Marriage Between[12] … |
… and |
In or Out of Wedlock? |
|---|---|---|
|
Legal gestational mother |
Legal genetic mother or father |
In wedlock |
|
Legal gestational mother |
Non-genetic legal mother or father |
In wedlock |
|
Legal gestational mother |
Non-genetic and non-legal mother or father |
Out of wedlock |
|
Marriage Between[14] … |
… and |
In or Out of Wedlock? |
|---|---|---|
|
Legal genetic father |
Legal genetic mother or legal gestational mother (or both) |
In wedlock |
|
Legal genetic father |
Non-genetic, non-gestational legal mother or father |
In wedlock |
|
Legal genetic father |
Non-genetic, non-gestational, and non-legal mother or father |
Out of wedlock |
|
Marriage Between[16]… |
… and |
In or Out of Wedlock? |
|---|---|---|
|
Legal genetic mother or father |
Legal genetic mother or father |
In wedlock |
|
Legal genetic mother or father |
Legal non-genetic mother or father |
In wedlock |
|
Legal non-genetic mother or father |
Legal non-genetic mother or father |
Out of wedlock[17] |
Parent’s Residence and Physical Presence Requirements
Depending on the law applicable at the time, the U.S. citizen parent(s) also have residency or physical presence requirements in the United States to transmit citizenship to a child.[18] The following table provides the current requirements under INA 301 based on the parents' citizenship.
|
Parents' Citizenship Status |
Residence or Physical Presence Requirement |
|---|---|
|
Child of Two U.S. Citizen Parents |
At least one parent had resided in the United States or one of its outlying possessions. |
|
Child of a U.S. Citizen Parent and a U.S. Noncitizen National |
The U.S. citizen parent was physically present in the United States or one of its outlying possessions for a continuous period of at least 1 year. |
|
Child of A U.S. Citizen Parent and Noncitizen Parent who is NOT a U.S. National |
The U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after 14 years of age.[19] |
C. Child Born Out of Wedlock[20]
1. Child of U.S. Citizen Father
General Requirements for Fathers of Children Born Out of Wedlock
The general requirements for acquisition of citizenship at birth[21] for a child born in wedlock also apply to a child born out of wedlock outside of the United States (or one of its outlying possessions) who claims citizenship through a U.S. citizen father. Specifically, the provisions apply in cases where:
-
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:
-
The child is legitimated under the law of his or her residence or domicile;
-
The father acknowledges in writing and under oath the paternity of the child; or
-
The paternity of the child is established by adjudication of a competent court.
-
In addition, the residence or physical presence requirements contained in the relevant paragraph of INA 301 continue to apply to children born out of wedlock, who are claiming citizenship through their fathers.
Written Agreement to Provide Financial Support
In order for a child born out of wedlock outside of the United States (or one of its outlying possessions) to acquire U.S. citizenship through his or her father, Congress included a requirement that the father agree in writing to provide financial support for the child until the child reaches the age of 18.[22] Congress included the language to prevent children from becoming public charges.[23] USCIS interprets the phrase in the statute “has agreed in writing to provide financial support”[24] to mean that there must be documentary evidence that supports a finding that the father accepted the legal obligation to support the child until the age of 18.
The written agreement of financial support may be dated at any time before the child’s 18th birthday. If the child is under the age of 18 at the time of filing an Application for Certificate of Citizenship, the father may provide the written agreement of financial support either concurrently with the filing of the application or prior to the adjudication of the application. USCIS may request the written agreement of financial support at the time of issuance of a Request for Evidence or at the time of an interview (unless the interview is waived).
Alternatively, if the applicant is already over the age of 18, he or she may meet the requirement if one or more documents support a finding that the father accepted his legal obligation to support the child. In such cases, the evidence must have existed (and have been finalized) prior to the child’s 18th birthday and must have met any applicable foreign law or U.S. law governing the child’s or father’s residence to establish acceptance of financial responsibility.[25]
In all cases, the applicant has the burden of proving the father has met any applicable requirements under the law to make an agreement to provide financial support. A written agreement of financial support is not required if the father died before the child’s 18th birthday.[26]
Written Agreement Requirements
In order for a document to qualify as a written agreement of financial support under INA 309(a)(3), the document:
-
Must be in writing and acknowledged by the father;[27]
-
Must indicate the father’s agreement to provide financial support for the child;[28] and
-
Must be dated before the child’s 18th birthday.
In addition, USCIS considers whether the agreement was voluntary.
Other Acceptable Documentation
A written agreement of financial support may come in different forms and documents. USCIS may consider other similar documentation in which the father accepts financial responsibility of the child until the age of 18. Some examples of documents USCIS may consider include:
-
A previously submitted Affidavit of Support (Form I-134) or Affidavit of Support Under Section 213A of the INA (Form I-864);
-
Military Defense Enrollment Eligibility Reporting System (DEERS) enrollment;
-
Written voluntary acknowledgement of a child in a jurisdiction where there is a legal requirement that the father provide financial support;[29]
-
Documentation establishing paternity by a court or administrative agency with jurisdiction over the child’s personal status, if accompanied by evidence from the record of proceeding establishing the father initiated the paternity proceeding and the jurisdiction legally requires the father to provide financial support; or
-
A petition by the father seeking child custody or visitation with the court of jurisdiction with an agreement to provide financial support and the jurisdiction legally requires the father to provide financial support.
2. Child of U.S. Citizen Mother
The rules that determine whether a child born out of wedlock outside of the United States derives citizenship at birth from the U.S. citizen mother vary depending on when the child was born.
Child Born On or After December 23, 1952 and Before June 12, 2017
A child born between December 23, 1952 and June 12, 2017 who is born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:
-
The person is a child[30] of a U.S. citizen parent(s);
-
The child’s mother was a U.S. citizen at the time of the child’s birth; and
-
The child’s U.S. citizen mother was physically present in the United States or one of its outlying possessions for 1 continuous year before the child’s birth.[31]
Child Born On or After June 12, 2017
A child born on or after June 12, 2017, who is born out of wedlock outside of the United States or one of its outlying possessions acquires citizenship at birth if:
-
The person is a child[32] of a U.S. citizen parent(s);
-
The child’s mother was a U.S. citizen at the time of the child’s birth; and
-
The child’s U.S. citizen mother was physically present in the United States or one of its outlying possessions for at least 5 years before the child’s birth (at least 2 years of which were after age 14).[33]
Effect of Sessions v. Morales-Santana Decision
Prior to the U.S. Supreme Court’s decision in Sessions v. Morales-Santana,[34] the physical presence requirements for children born out of wedlock were different for a child acquiring citizenship through a U.S. citizen mother than for those acquiring through a U.S. citizen father. An unwed U.S. citizen mother could transmit citizenship to her child if the mother was physically present in the United States for 1 continuous year prior to the child's birth.[35] An unwed U.S. citizen father, by contrast, was held to the longer physical presence requirement of 5 years (at least 2 years of which were after age 14) in the United States or one of its outlying possessions.[36]
On June 12, 2017, the U.S. Supreme Court held, in Sessions v. Morales-Santana, that the different physical presence requirements for an unwed U.S. citizen father and an unwed U.S. citizen mother violated the U.S. Constitution’s Equal Protection Clause.[37] The U.S. Supreme Court indicated that the 5 years of physical presence (at least 2 years of which were after age 14)[38] requirement should apply prospectively to all cases involving a child born out of wedlock outside the United States to one U.S. citizen parent and one noncitizen parent, regardless of the gender of the parent.[39]
The U.S. Supreme Court decision effectively eliminated, prospectively, the 1 year continuous physical presence requirement that previously applied to unwed U.S. citizen mothers, and replaced it with the higher physical presence requirement that previously applied to unwed U.S. citizen fathers.[40] After Sessions v. Morales-Santana, the 1-year continuous physical presence requirement[41] remains in effect only for those children born prior to June 12, 2017 outside of the United States to unwed U.S. citizen mothers.
D. Application for Certificate of Citizenship (Form N-600)
A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship (Form N-600). A person who seeks documentation of such status, however, must submit an application to obtain a Certificate of Citizenship from USCIS. A person may also apply for a U.S. passport with the Department of State to serve as evidence of his or her U.S. citizenship.[42]
A person who is at least 18 years of age may submit the Application for Certificate of Citizenship on his or her own behalf. If the application is for a child who has not reached 18 years of age, the child's U.S. citizen parent or legal guardian must submit the application.[43]
USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship if the Application for Certificate of Citizenship is approved and the person takes the Oath of Allegiance, if required to do so.[44]
E. Citizenship Interview and Waiver
In general, an applicant must appear in person for an interview before a USCIS officer after filing an Application for Certificate of Citizenship. This includes the U.S. citizen parent or legal guardian if the application is filed on behalf of a child under 18 years of age.[45] USCIS, however, may waive the interview requirement if all the required documentation necessary to establish the applicant's eligibility is already included in USCIS administrative records, or if the application is accompanied by one of the following:
-
Consular Report of Birth Abroad (FS-240);
-
Applicant’s unexpired U.S. passport issued initially for a full 5 or 10-year period; or
-
Certificate of Naturalization of the applicant's parent or parents.[46]
F. Decision and Oath of Allegiance
1. Approval of Application, Oath of Allegiance, and Waiver for Children under 14 Years of Age
If an officer approves the Application for Certificate of Citizenship, USCIS administers the Oath of Allegiance before issuing a Certificate of Citizenship.[47]
However, the Immigration and Nationality Act (INA) permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[48] USCIS has determined that children under the age of 14 are generally unable to understand the meaning of the oath.
Accordingly, USCIS waives the oath requirement for a child younger than 14 years of age. If USCIS waives the oath requirement, USCIS issues a Certificate of Citizenship after the officer approves the application.
2. Denial of Application
If an officer denies the Certificate of Citizenship application, the officer must notify the applicant in writing of the reasons for denial and include information on the right to appeal in the notice.[49] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).
Footnotes
[^ 1] See INA 301(a) and INA 301(b). Children of certain diplomats who are born in the United States are not U.S. citizens at birth because they are not subject to the jurisdiction of the United States. See 8 CFR 101.3. For more information, see Volume 7, Adjustment of Status, Part O, Registration, Chapter 3, Foreign Nationals Born in the United States to Accredited Diplomats [7 USCIS-PM O.3].
[^ 2] For the definition of child, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].
[^ 3] Any periods of honorable service in the U.S. armed forces, periods of employment with other qualifying organizations, or time spent outside the United States as the dependent unmarried son or daughter and member of the household of a person honorably serving in the U.S. armed forces or employed by another qualifying organization count towards that physical presence requirement. See INA 301(g).
[^ 4] The Act of October 10, 1978, Pub. L. 95-432 (PDF), repealed the retention requirements of former INA 301(b). The amending legislation was prospective only and did not restore citizenship to anyone who, prior to its enactment, had lost citizenship for failing to meet the retention requirements.
[^ 5] Officers should use the Nationality Charts to assist with the adjudication of these applications.
[^ 6] See INA 301. See Appendix: Nationality Chart 1 - Children Born Outside the United States in Wedlock [12 USCIS-PM H.3, Appendices Tab].
[^ 7] See INA 301 and INA 309.
[^ 8] For the definition of a child, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].
[^ 9] Marriage must have existed at the time of birth.
[^ 10] In addition, see the chart entitled In-Wedlock Determinations: Cases Involving Gestational Carriers.
[^ 11] Marriage must have existed at the time of birth.
[^ 12] Marriage must have existed at the time of birth.
[^ 13] In addition, see the chart entitled In-Wedlock Determinations: Cases Involving Gestational Carriers.
[^ 14] Marriage must have existed at the time of birth.
[^ 15] Persons using ART may use a gestational carrier who is a person who gestates, or carries, an embryo that was formed from the egg of another person on behalf of the intended parent or parents. The gestational carrier is genetically unrelated to the child and usually has a contractual obligation to return the infant to his or her intended legal parents. For additional information on ART, see the Centers for Disease Control (CDC) website. A non-genetic gestational parent who is not the legally recognized parent may not transmit U.S. citizenship to the child (for example, a gestational carrier who is not a legal parent). USCIS follows any applicable court judgment of the relevant jurisdiction if parentage is disputed. In addition, USCIS does not adjudicate cases involving children whose legal parentage remains in dispute unless there has been a final determination by a proper authority.
[^ 16] Marriage must have existed at the time of birth.
[^ 17] An unmarried non-genetic, non-gestational legal parent may not transmit U.S. citizenship to the child.
[^ 18] Some children may also have retention requirements. See Appendix: Nationality Chart 1 - Children Born Outside the United States in Wedlock [12 USCIS-PM H.3, Appendices Tab] for additional information.
[^ 19] Time outside the United States counts as physical presence in the United States if the time spent outside the United States was:
-
As a member of the U.S. armed forces in honorable status;
-
Under the employment of the U.S. government or other qualifying organizations; or
-
As a dependent unmarried son or daughter of the household of a person described in one of the above categories of such persons.
[^ 20] See INA 309. See Appendix: Nationality Chart 2 - Children Born Outside the United States Out of Wedlock [12 USCIS-PM H.3, Appendices Tab].
[^ 21] See INA 301(c), INA 301(d), INA 301(e), and INA 301(g). See Section A, General Requirements for Acquisition of Citizenship at Birth [12 USCIS-PM H.3(A)].
[^ 22] A separate agreement or contract is not required for the father to satisfy the requirement. See INA 309(a)(3). See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (PDF) (November 14, 1986).
[^ 23] See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (PDF) (November 14, 1986). The Immigration and Nationality Act (INA) was intended to keep families together and generally construed in favor of family unity and the acceptance of responsibility by family members. See Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).
[^ 24] See INA 309(a)(3).
[^ 25] In many cases, the issue of whether the father agreed to provide financial support depends on foreign law. The applicant bears the burden of proving the father has met any applicable requirements to make a binding agreement under the law. See Matter of Annang (PDF), 14 I&N Dec. 502 (BIA 1973). Officers should consult USCIS counsel about any requirements under the law.
[^ 27] A court document may be signed by a judge rather than the father, but may still serve as evidence to meet this requirement if there is an indication in the record of proceedings that the father consented to the determination of paternity.
[^ 28] Since the statute only provides for the agreement of the father to provide support and does not provide for any loss of citizenship if the agreement is not met, USCIS does not consider whether the father actually provided financial support.
[^ 29] For example, a birth certificate or acknowledgement document submitted and certified by the father. Under U.S. jurisdictions, a written voluntary acknowledgement of a child generally triggers a legal obligation to support the child. However, under foreign jurisdictions, a voluntary written agreement may not always trigger a legal obligation to support the child. The officer may consult with local USCIS counsel for questions regarding the effect of the law.
[^ 30] For the definition of a child, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].
[^ 31] See INA 309(c).
[^ 32] For the definition of a child, see Chapter 2, Definition of Child and Residence for Citizenship and Naturalization [12 USCIS-PM H.2].
[^ 33] See INA 301(g). See Sessions v. Morales-Santana (PDF), 137 S.Ct. 1678 (2017).
[^ 34] See Sessions v. Morales-Santana (PDF), 137 S.Ct. 1678 (2017).
[^ 35] See INA 309(c).
[^ 36] See INA 301(g).
[^ 37] See Sessions v. Morales-Santana (PDF), 137 S.Ct. 1678 (2017). See U.S. Constitution, amend. XIV.
[^ 38] See INA 301(g).
[^ 39] See Sessions v. Morales-Santana (PDF), 137 S.Ct. 1678 (2017).
[^ 40] See INA 309(c).
[^ 41] See INA 309(c).
[^ 42] See 8 CFR 341.1. The Secretary of State has jurisdiction over claims of U.S. citizenship made by persons who are abroad, and the Secretary of Homeland Security has jurisdiction over the administration and enforcement of the INA within the United States. See INA 103(a)(1) and INA 104(a)(3). There is nothing precluding USCIS from accepting a Form N-600 filed under INA 301 or INA 309 by a person who does not live in the United States. See INA 341(a).
[^ 43] See 8 CFR 341.1.
[^ 44] See Section F, Decision and Oath of Allegiance [12 USCIS-PM H.3(F)]. See 8 CFR 341.5(b).
[^ 45] See 8 CFR 341.2(a)(2).
[^ 46] See 8 CFR 341.2(a).
[^ 47] See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance [12 USCIS-PM J.2].
[^ 48] See INA 337(a). See 8 CFR 341.5(b).
[^ 49] See 8 CFR 341.5(d) and 8 CFR 103.3(a).