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 person born to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe. [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 .

In general, a person born outside of the United States may acquire citizenship at birth if:

The person has at least one parent who is a U.S. citizen; and

The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision. [2] Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).

A person born abroad through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not also the genetic mother acquires U.S. citizenship at birth under INA 301 or INA 309 if:

The person’s gestational mother is recognized by the relevant jurisdiction as the child’s legal parent at the time of the person’s birth; and

The person meets all other applicable requirements under either INA 301 or INA 309. [3] For a more thorough discussion, see Chapter 2, Definition of Child for Citizenship and Naturalization, Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

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] The Act of October 10, 1978, Pub. L. 95-432, repealed the retention requirements of former INA 301(b).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.

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] Officers should use the Nationality Charts to assist with the adjudication of these applications. The following sections provide the current law.

B. Child Born in Wedlock [6] See INA 301. See Nationality Chart 1.

1. Child of Two U.S. Citizen Parents [7] See INA 301(c).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

Both of the child’s parents are U.S. citizens; and

At least one parent had resided in the United States or one of its outlying possessions.

2. Child of U.S. Citizen Parent and U.S. National [8] See INA 301(d).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a U.S. citizen and the other parent is a U.S. national; and

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 one year.

3. Child of U.S. Citizen Parent and Foreign National Parent [9] See INA 301(g).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if at the time of birth:

One parent is a foreign national and the other parent is a U.S. citizen; and

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.

Time abroad counts as physical presence in the United States if the time abroad 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 such persons.

4. Child of a U.S. Citizen Mother and Foreign National Father [10] See INA 301(h).

A child born outside of the United States and its outlying possessions acquires citizenship at birth if:

The child was born before noon (Eastern Standard Time) May 24, 1934;

The child’s father is a foreign national;

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 resided in the United States prior to the child’s birth.

C. Child Born Out of Wedlock [11] See INA 309. See Nationality Chart 2.

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 [12] 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)]. 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. [13] 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 (November 14, 1986). Congress included the language to prevent children from becoming public charges. [14] See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (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). USCIS interprets the phrase in the statute “has agreed in writing to provide financial support” [15] See INA 309(a)(3). 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. [16] 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, 14 I&N Dec. 502 (BIA 1973). Officers should consult USCIS counsel about any requirements under the law.

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. [17] See INA 309.

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; [18] 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.

Must indicate the father’s agreement to provide financial support for the child; [19] 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. 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; [20] 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.

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 his or her 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 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 prior to the child’s birth. [21] See INA 309(c).

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 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 prior to the child’s birth (at least 2 years of which were after age 14). [22] See INA 301(g). See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

Effect of Sessions v. Morales-Santana Decision

Prior to the U.S. Supreme Court’s decision in Sessions v. Morales-Santana, [23] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). 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. [24] See INA 309(c). 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. [25] See INA 301(g).

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. [26] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017). See U.S. Constitution, amend. XIV. The U.S. Supreme Court indicated that the 5 years of physical presence (at least 2 years of which were after age 14) [27] See INA 301(g). 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 foreign national parent, regardless of the gender of the parent. [28] See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

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. [29] See INA 309(c). After Sessions v. Morales-Santana, the 1-year continuous physical presence requirement [30] See INA 309(c). 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. [31] 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).

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. [32] See 8 CFR 341.1 .

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. [33] See Section F, Decision and Oath of Allegiance [12 USCIS-PM H.3(F)]. See 8 CFR 341.5(b) .

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. [34] See 8 CFR 341.2(a)(2) . 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. [35] See 8 CFR 341.2(a) .

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. [36] 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].

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. [37] See INA 337(a). See 8 CFR 341.5(b) . 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. [38] See 8 CFR 341.5(d) and 8 CFR 103.3(a) . 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 .

2. [^]

Any time spent abroad in the U.S. armed forces or other qualifying organizations counts towards that physical presence requirement. See INA 301(g).

3. [^]

For a more thorough discussion, see Chapter 2, Definition of Child for Citizenship and Naturalization, Section E, Child Born Abroad through Assisted Reproductive Technology [12 USCIS-PM H.2(E)].

4. [^]

The Act of October 10, 1978, Pub. L. 95-432, 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.

7. [^]

See INA 301(c).

8. [^]

See INA 301(d).

9. [^]

See INA 301(g).

10. [^]

See INA 301(h).

12. [^]

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)].

13. [^]

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 (November 14, 1986).

14. [^]

See the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653 (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).

15. [^]

See INA 309(a)(3).

16. [^]

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, 14 I&N Dec. 502 (BIA 1973). Officers should consult USCIS counsel about any requirements under the law.

17. [^]

See INA 309.

18. [^]

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.

19. [^]

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.

20. [^]

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.

21. [^]

See INA 309(c).

22. [^]

See INA 301(g). See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

23. [^]

See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

24. [^]

See INA 309(c).

25. [^]

See INA 301(g).

27. [^]

See INA 301(g).

28. [^]

See Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).

29. [^]

See INA 309(c).

30. [^]

See INA 309(c).

31. [^]

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).

32. [^]

See 8 CFR 341.1 .

33. [^]

See Section F, Decision and Oath of Allegiance [12 USCIS-PM H.3(F)]. See 8 CFR 341.5(b) .

34. [^]

See 8 CFR 341.2(a)(2) .

35. [^]

See 8 CFR 341.2(a) .

36. [^]

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].

37. [^]

See INA 337(a). See 8 CFR 341.5(b) .

38. [^]

See 8 CFR 341.5(d) and 8 CFR 103.3(a) .