Nationals and Citizens of The United States At Birth

Posted on September 27, 2013 by Mike Baker

INA: ACT 301 – NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States. 302 persons born in Puerto Rico on or after April 11, 1899

See INA 301. See Nationality Chart 1.

See INA 309. See Nationality Chart 2.

United States 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 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:

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.[3] 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.[4] 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[5] See INA 301. See Nationality Chart 1.

1. Child of Two U.S. Citizen Parents[6] 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[7] 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[8] 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[9] 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[10] See INA 309. See Nationality Chart 2.

Child of a U.S. Citizen Father

The provisions listed above[11] See INA 301 (c), INA 301(d), INA 301(e), and INA 301(g). for a child born in wedlock apply to a child born out of wedlock outside of the United States claiming citizenship through a U.S. citizen father if:

  • 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 claiming citizenship through their fathers.

Child of a U.S. Citizen Mother

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

  • The child was born after December 23, 1952;

  • 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 outlying possession for one continuous year prior to the child’s birth.[12] See INA 309(c).

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.[13] See 8 CFR 341.1.

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.[14] 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.[15] See Section F, Decision and Oath of Allegiance. 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.[16] 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:

  • Department of State Form FS-240 (Consular Report of Birth Abroad of a U.S. Citizen);

  • Applicant’s unexpired U.S. Passport issued initially for a full five or ten-year period; or

  • Certificate of Naturalization of the applicant’s parent or parents.[17] 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.[18] See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

However, the INA permits USCIS to waive the taking of the Oath of Allegiance if USCIS determines the person is unable to understand its meaning.[19] 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.[20] 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).

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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. [^]

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.

4. [^]

Officers should use the Nationality Charts to assist with the adjudication of these applications.

5. [^]

See INA 301. See Nationality Chart 1.

6. [^]

See INA 301(c).

7. [^]

See INA 301(d).

8. [^]

See INA 301(g).

9. [^]

See INA 301(h).

10. [^]

See INA 309. See Nationality Chart 2.

11. [^]

See INA 301 (c), INA 301(d), INA 301(e), and INA 301(g).

12. [^]

See INA 309(c).

13. [^]

See 8 CFR 341.1.

14. [^]

See 8 CFR 341.1.

15. [^]

See Section F, Decision and Oath of Allegiance. See 8 CFR 341.5(b).

16. [^]

See 8 CFR 341.2(a)(2).

17. [^]

See 8 CFR 341.2(a).

18. [^]

See INA 337(a). See 8 CFR 341.5(b). See Part J, Oath of Allegiance, Chapter 2, The Oath of Allegiance.

19. [^]

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

20. [^]

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

A child born abroad to two U.S. citizens acquires U.S. citizenship at birth if, before the child’s birth, one of the parents had a residence in the United States or its outlying possessions. No specific period of residence is required.

SPECIAL REQUIREMENTS FOR CHILDREN To submit an application for a child under age 16 both parents or the child’s legal guardian(s) must appear and present the following: – Evidence of the child’s U.S. citizenship – Evidence of the child’s relationship to parents/guardian(s), AND – Parental/guardian identification.

IF ONLY ONE PARENT APPEARS, YOU MUST ALSO SUBMIT ONE OF THE FOLLOWING: – Second parent’s notarized written statement or DS-3053 (including the child’s full name and date of birth) consenting to the passport issuance for the child. Statement can not be more than 3 months old and must come with a photocopy of the front and back side of the second parent’s identification, OR – Second parent’s death certificate if second parent is deceased, OR – Primary evidence of sole authority to apply, OR – A written statement or DS-3053 (made under penalty of perjury) explaining in detail the second parent’s unavailability. AS DIRECTED BY REGULATION 22 CFR 51.21 AND 51.28: – Each minor child applying for a passport book and/or passport card must appear in person.

1. PROOF OF U.S. CITIZENSHIP

APPLICANTS BORN IN THE UNITED STATES: Submit a previous U.S. passport or certified birth certificate. Passports that are limited in validity will need to be supplemented by other evidence. A birth certificate must include your full name, date and place of birth, sex, date the birth record was filed, the seal or other certification of the official custodian of such records (state, country, or city/town office), and the full names of your parent(s). – If the birth certificate was filed more than 1 year after the birth: It must be supported by evidence described in the next paragraph. – If no birth record exists: Submit a registrar’s notice to that effect. Also, submit a combination of the following evidence: an early baptismal or circumcision certificate, hospital birth record, early census, school, medical, or family Bible records, or newspapers or insurance files. Notarized affidavits of persons having knowledge of your birth may be submitted in addition to some of the records listed above. Evidence should include your given name and surname, date and/or place of birth, and the seal or other certification of the office (if customary) and the signature of the issuing official. Visit travel.state.gov for details.

APPLICANTS BORN OUTSIDE THE UNITED STATES: Submit a previous U.S. passport, Certificate of Naturalization, Certificate of Citizenship, Report of Birth Abroad, or evidence described below: – If you Claim Citizenship through Naturalization of Parent(s): Submit the Certificate(s) of Naturalization of your parent(s), your foreign birth certificate (and official translation if the document is not in English), and proof of your admission to the United States for permanent residence. – If you Claim Citizenship through Birth Abroad to One U.S. Citizen Parent: Submit a Consular Report of Birth (Form FS-240), Certification of Birth (Form DS-1350 or FS-545), or your foreign birth certificate (and official translation if the document is not in English), proof of citizenship of your parent, your parents’ marriage certificate, and an affidavit showing all of your U.S. citizen parents’ periods and places of residence/physical presence in the United States and abroad before your birth. – If you Claim Citizenship through Birth Abroad to Two U.S. Citizen Parents: Submit a Consular Report of Birth (Form FS-240), Certification of Birth (Form DS-1350 or FS-545), or your foreign birth certificate (and official translation if the document is not in English), parents’ marriage certificate, proof of your parents’ citizenship, and an affidavit showing all of your U.S. citizen parents’ periods and places of residence/physical presence in the United States and abroad before your birth. – If you Claim Citizenship through Adoption by a U.S. Citizen Parent(s): Submit evidence of your permanent residence status, full and final adoption, and your U.S. citizen parent(s) evidence of legal and physical custody. (NOTE: Acquisition of U.S. citizenship for persons born abroad and adopted only applies if the applicant was born on or after 02/28/1983.) ADDITIONAL EVIDENCE: You must establish your citizenship to the satisfaction of the acceptance agent and Passport Services. We may ask you to provide additional evidence to establish your claim to U.S. citizenship. NOTE: You may receive your newly issued document and your returned citizenship evidence in two separate mailings. If you are applying for both a passport book and passport card, you may receive three separate mailings; one with your returned citizenship evidence; one with your newly issued passport book, and one with your newly issued passport card.

2. PROOF OF IDENTITY You may submit items such as the following containing your signature AND a photograph that is a good likeness of you: previous or current U.S. passport book; previous or current U.S. passport card; driver’s license (not temporary or learner’s license); Certificate of Naturalization; Certificate of Citizenship; military identification; or federal, state, or municipal government employee identification card. Temporary or altered documents are not acceptable. You must establish your identity to the satisfaction of the acceptance agent and Passport Services

3. RECENT COLOR PHOTOGRAPH Submit a color photograph of you alone, sufficiently recent to be a good likeness of you (taken within the last six months), and 2×2 inches in size. The image size measured from the bottom of your chin to the top of your head (including hair) should not be less than 1 inch and not more than 1 3/8 inches. The photograph must be color, clear, with a full front view of your face, and printed on thin paper with a plain light (white or off-white) background. The photograph must be taken in normal street attire, without a hat, head covering, or dark glasses unless a signed statement is submitted by the applicant verifying the item is worn daily for religious purposes or a signed doctor’s statement is submitted verifying the item is used daily for medical purposes.

If you are under sixteen years of age: Your passport will be valid for 5 years from the date of issue except where limited by the Secretary of State to a shorter period. (see information below about the additional cost for expedited service.)

FEES: http://travel.state.gov/passport/fees/fees_837.html

Please refer to these pages: Passport Application: DS 11 http://travel.state.gov/passport/forms/ds11/ds11_842.html

http://travel.state.gov/passport/get/minors/minors_834.html

FS-240 Vital Records http://travel.state.gov/passport/get/first/first_825.html

This entry was posted in INA 301 and 309, Nationals and CIitizens of The United States At Birth, United States Citizens at Birth. Bookmark the permalink.

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