Derivative Citizenship

A child born outside the U.S. may become a US Citizen (USC) as a matter of law by virtue of his or her parent or parents’ birth or naturalization. 

The Immigration and Nationality Act (INA) grants U.S. citizenship at birth based on:
(1) Birth in the U.S. or certain other places; 
(2) The citizenship of one or both parents; and
(3) A combination of location and parental citizenship. 

U.S. citizenship is also granted to persons after their birth based on a combination of parental citizenship and later residence and by naturalization. U.S. noncitizen national status is granted based on the birth location in certain other places, and the U.S. national status of one or both parents. 

There are two general ways to obtain citizenship through parents, one at birth and one after birth but before the age of 18:
1. A child born outside the U.S. is a citizen at birth if both parents were U.S. citizens at the time of birth, AND the parents were married at the time of birth and at least one parent lived in the U.S. or its territories prior to the birth. 
2. A child born outside the U.S. is a citizen at birth if one parent is a U.S. citizen at the time of birth and the birth date is on or after November 14, 1986 AND the parents were married at the time of birth and the U.S. citizen parent had been physically present in the U.S. or its territories for a period of at least five years at some time in his or her life prior to the birth, of which at least two years were after his or her 14th birthday. If the U.S. citizen parent spent some time abroad in any one of the following three capacities, these can also be counted towards the physical presence requirement: 
  • Employed with the U.S. Government;
  • Serving honorably in the U.S. Armed Forces; or
  • Employed with certain international organizations. 

Additionally, time spent abroad by the U.S. citizen parent while the U.S. citizen parent was the unmarried son or daughter and a member of the household of a person who meets any one of the three conditions above can also be counted. 

Example 1: A child born outside the U.S. is a citizen after birth if the child was under 18 or not yet born on February 27, 2001 AND at least one parent is a U.S. citizen, the child is currently under 18 and residing in the U.S. in the legal and physical custody of the U.S. citizen parent pursuant to lawful admission for permanent residence. 

Example 2: A child born outside the U.S. is a citizen after birth if the child was under 18 from December 24, 1952 to February 26, 2001 AND the child was residing as a Green Card holder in the U.S. and both parents naturalized before the child’s 18th birthday; OR
  • If one parent died, and the surviving parent naturalized before the child turned 18.
  • If the parents legally separated, and the parent maintaining legal and physical custody naturalized before the child turned 18.
  • If the child was born out of wedlock and paternity has not been established by legitimation, the mother naturalized before the child turned 18. 

For more information, please visit the USCIS website at: http://www.uscis.gov/us-citizenship/citizenship-through-parents.  

If any of these situations apply, you may contact your nearest United States Consular Office or visit the Department of State website:  http://travel.state.gov/content/passports/english/abroad/events-and-records/birth.html to find out what are the requisite applications forms necessary for apply for a United States passport for your child. 

There are many scenarios in which the U. S. Citizenship through parents can be granted. Anyone who believes s/he is eligible for derivative citizenship is advised to contact our highly-experienced immigration attorney to gain clarity on the issues and to ensure that the proper filing procedures are followed for a successful citizenship.
Posted On: 2014-Aug-17
 


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