The concept of citizenship, of determining who “belongs” to a particular country and who does not, is fascinating and especially relevant today, with so many Americans holding passionate and often conflicting ideas about U.S. immigration policies. Unfortunately, there is a great deal of misunderstanding about how our laws actually work. The purpose of this article is to explain how U.S. citizenship is acquired, either automatically at birth, or by applying for naturalization through U.S. Citizenship and Immigration Services. This information is intended to serve as a building block for future articles on this complex and intriguing topic. Readers who would like to see particular topics addressed are encouraged to contact me with their suggestions.
Birthright citizenship refers to the manner in which one acquires citizenship based on certain circumstances of birth. Each country has the right to determine by its own laws who will be considered a citizen of that country. Generally speaking citizenship is either determined by place of birth (jus soli, from Latin; literally “law of the soil”), or by the citizenship of the parents regardless of place of birth (jus sanguinis, also from Latin; “law of blood”). Since the adoption of the Fourteenth Amendment to the U.S. Constitution on July 9, 1868, the citizenship of persons born in the United States has been controlled by its Citizenship Clause, which states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The U.S., therefore, adheres to the concept of jus soli citizenship. A child born in the U.S. automatically acquires U.S. citizenship, which conveys the right for that child to enter and reside in the U.S. at any time. That child’s birth in the U.S. and resultant U.S. citizenship conveys no immigration benefit, however, on his/her foreign national parents or siblings – a common misconception. The child has the right to remain in the United States, but the parents and siblings do not unless they qualify on their own. Arguments have been made that by deporting the parents the U.S. is denying the U.S. citizen child the right to reside in the U.S.; these arguments have not been successful.
Some individuals become U.S. citizens at birth even if they are born abroad. For example, under current U.S. law, if a child is born abroad to two U.S. citizens, at least one of whom has resided in the U.S. for a specified period of time, that child automatically becomes a U.S. citizen. Beyond that fairly common scenario, however, derivative citizenship is perhaps unexpectedly complicated. This is particularly true if the father is the U.S. citizen and the child was born out of wedlock; it is also more complicated for adopted children.
Variables that will affect derivative acquisition of citizenship include the date of birth of the child and the law in effect at that time; whether the parents were married when the child was born; whether the U.S. citizen parent is the father or the mother of the child; if the child, born out of wedlock, was legitimated by her U.S. citizen father; and whether the U.S. citizen parent was physically present in the U.S. for certain periods of time and by certain dates. The rules are different for adopted children, although the Child Citizenship Act of 2000 made it easier for adopted children to acquire the citizenship of their adoptive parents.
Part of the reason for the complexity of this area of law is the fact that the requirements have changed numerous times (1934, 1940, 1952, 1978, 1984, 1996 and 2000) and few if any of the changes were made retroactive.
This can lead to some interesting and no doubt unanticipated results. For example, suppose Child is born abroad in 1985 to Mother, a married U.S. citizen who is 17 years of age at the time of Child’s birth. Child’s father is a foreign national. The law pertaining to derivative citizenship in 1985 provided that, in order for Mother to bestow U.S. citizenship upon her child, Mother must have been physically present in the U.S. for 10 years, 5 of which were after she turned 14. Since Mother was only 17 when she gave birth abroad to Child, it will be impossible to establish that she was physically present in the U.S. for 5 years after the age of 14. Therefore Child is not a derivative U.S. citizen.
Had Child been born in, say, 1990, rather than 1985, she would have derivatively acquired U.S. citizenship through Mother – not because Mother could now have acquired the requisite 5 years of physical presence in the U.S. after reaching the age of 14, but rather, because in 1986 the law changed, and only required that Mother have 5 years of physical presence in the U.S., including 2 years after she turned 14, in order for Child to derive U.S. citizenship through her. In fact, Child’s siblings born after the law changed would automatically become U.S. citizens; Child would not. To perhaps add insult to injury, if Mother had been unmarried when she gave birth to Child, Child would be a U.S. citizen. The rule in 1985 for a child born abroad and out of wedlock to a U.S. citizen mother is that the mother need only show 12 months of physical presence in the U.S. prior to the child’s birth. So, if Mother hadn’t gotten married, Child would be a U.S. citizen today.
Naturalization is the process by which a foreign national can acquire U.S. citizenship through application. In order to successfully naturalize, the foreign national must meet certain criteria, as follows:
1.The ability to read, write and speak basic English;
2. The ability to pass a test on U.S. history and government;
3. Must be a permanent resident (“green card” holder) for at least 5 years (if married to a U.S. citizen and “living in marital union,” the requirement is 3 years);
4. Must have been physically present in the U.S. for at least half of that 5- or 3-year period, in the aggregate;
5. Must not have “abandoned” their residence in the U.S. by relocating to another country with the intention to live and work there permanently; and
6. Must be a person of “good moral character.”
Applicants for naturalization go through a screening process to determine whether they have any arrests or convictions. They must demonstrate that they are persons of “good moral character.” This typically means, among other things, no crimes, timely filing of tax returns and no tax debt outstanding, and proof that the applicant is current on any obligations for child or spousal support. The English language and history requirements can be especially challenging for older applicants, and individuals who may never have learned to read or write in any language. These requirements cannot be waived, however, unless there is a medical condition that makes it impossible for the applicant to acquire and retain new information. If the applicant meets all of the criteria and passes the test, he/she takes the oath of allegiance to the United States and becomes a U.S. citizen.
U.S. law and policy on immigration, including citizenship, is indeed fascinating and tells us a great deal about how we as a people view ourselves. Future articles will focus on, among other things, the differences between citizenship, lawful permanent residence, and other immigration statuses; the concept of “good moral character;” exceptions to certain of the naturalization requirements; and the finer points of birthright citizenship.