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Birthright Citizenship Laws

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What is Birthright Citizenship?

Birthright citizenship refers to the idea that a person’s U.S. citizenship is acquired automatically through the circumstances of their birth.  This is different from other means of obtaining citizenship later on in life, such as through naturalization.  Birthright citizenship is granted according to both 14th Amendment constitutional principles as well as federal statutes.

Birthright citizenship may be classified according to two common law principles:  jus solis (by geographic location) or jus sanguinis (by blood relations).  U.S. citizenship by birth may be granted under both principles.

What if a Person is born in the U.S.?

The Citizenship Clause of the 14th Amendment to the U.S. constitution 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…” 

This means that all persons who are born in the U.S. are considered to be U.S. citizens.  Citizenship is automatically granted for persons born in the U.S., regardless of the citizenship status of the parents.  This type of birthright citizenship also applies to persons born in the U.S. territories of Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

Can U.S. Birthright Citizenship be granted to persons born Overseas?

In some instances, birthright citizenship can also be extended to persons who are born outside of the U.S.  Federal laws contain a number of statutes based on jus sanguinis principles.  These allow a person to obtain birthright citizenship according to parentage when they are born on foreign soil. 

If the parents are married and the child is born overseas, citizenship is granted as follows:

  • When both parents are citizens of the U.S., the child is also a U.S. citizen if either parent has ever lived in the U.S. at some time prior to the child’s birth
  • When only one parent is a U.S. citizen, and the other is a U.S. national, the child is granted citizenship if the U.S. citizen parent had ever lived in the U.S. continuously for at least one year before the child’s birth
  • When one parent is U.S. citizen, but the other is not, then the child is granted birthright citizenship only if:
    • the parent with U.S. citizenship had been “physically present” in the U.S. for a period of time before the child’s birth totaling at least 5 years (need not be continuous residence), AND
    • a minimum of two of the five years were after the citizen parent’s 14th birthday

On the other hand, U.S. laws for overseas births differ when the parents are unmarried.  A child born overseas to unmarried parents is granted U.S. citizenship as follows:

  • If the unmarried mother is a U.S. citizen, the child is also granted citizenship, as long as the mother had lived in the U.S. for a continuous period of time for at least one year, at any time prior to the child’s overseas birth
  • If the unmarried father is U.S. citizen, the child is a citizen if the father meets the “physically present” requirements listed above, AND: 
    • Unless deceased, the father agrees to provide the child with financial support until the child reaches the age of 18,
    • The father establishes paternity through clear and convincing evidence, while the child is less than 18 years old.  Paternity may be proven for example by the father acknowledging paternity under oath in writing, or through court adjudication (often involving a paternity test)

In the case of an unmarried U.S. citizen father, it is especially important for the father to establish paternity before the child reaches the age of 18.  Once the child is 18, the father is no longer entitled to prove paternity, and thus the child may never obtain their birthright citizenship.  This could even lead to possible removal or deportation in the future.

Do I Need a Lawyer for proving Birthright Citizenship?

If you or your child need advice on birthright citizenship, an experienced lawyer can be of great help.  Your immigration attorney will be able to explain the various citizenship laws to you, and can help determine you or your child’s eligibility for birthright citizenship.  Also, if you have other related concerns such as paternity or deportation, your attorney can provide you with further assistance.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 01-16-2013 03:20 PM PST

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