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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]

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

One parent 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]

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]

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] The following sections provide the current law.

B. Child Born in Wedlock[5]

1. Child of Two U.S. Citizen Parents[6]

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]

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]

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]

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]

Child of a U.S. Citizen Father

The provisions listed above[11] 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]

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]

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]

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]

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] 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]

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]

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] 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] An applicant may file an appeal within 30 calendar days after service of the decision (33 days if the decision was mailed).

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.