Birthright Citizenship Laws

In the United States, the concept of “birthright citizenship” is generally described as a legal right to citizenship that is granted to all children born within the borders of a particular country (in this case the U.S.), regardless of the origins of their parents. This means that any child who is born in the United States will legally and automatically obtain U.S. citizenship simply through the circumstances of their birth no matter where their parents are originally from.

Generally speaking, it is typically much easier to obtain U.S. citizenship by proving birthright citizenship than it is to acquire through other methods, such as naturalization. The reason as to why it may be easier is because birthright citizenship is granted in accordance with federal immigration laws as well as through the Citizenship Clause of the 14thAmendment to the U.S. Constitution.

In addition, it should be noted that birthright citizenship in the U.S. may also be granted and classified under two common law principles:

• Jus soli (“right of soil”): Birthright citizenship is derived from the common law principle of jus soli, which translates to “right of the soil.” Similar to the concept of birthright citizenship, the principle of jus soli refers to the idea that anyone born within a territory of a country will automatically assume the right to that country’s citizenship. Jus soli is the controlling principle in the United States.
• Jus sanguinis (“right of blood”): In contrast, jus sanguinis is the controlling principle in many other countries and refers to the idea that citizenship is derived from the nationality or citizenship of a child’s parents. Although jus sanguinis is the lesser applied principle of the two, a child can still obtain U.S. citizenship under it if one or both parents are U.S. citizens.

To learn more about the laws and the requirements of determining birthright citizenship for you and/or your child, you should speak to an immigration law attorney in your area for further legal guidance.

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

As previously mentioned, a person who is originally born in the United States will automatically be granted the legal right to U.S. citizenship through the circumstances of their birth. This is true regardless of where their parents are from or in which country their parents hold citizenship. The reason that this right exists is due to the Citizenship Clause of the 14thAmendment to the U.S. Constitution.

Specifically, the Citizenship Clause of the 14th Amendment provides that:

“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

The idea of birthright citizenship stems from this clause and will apply to all persons born in the United States as well as any territories that belong to the U.S., such as Puerto Rico, Guam, the U.S. Virgin Islands, and the North Mariana Islands. Therefore, a child who is born in any U.S. territory, the District of Columbia, or one of the fifty states will automatically assume U.S. citizenship through birth (i.e., jus soli).

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

There are certain situations in which U.S. birthright citizenship may be granted to persons who are born outside of the United States. In most of these instances, the principle of jus sanguinis as well as other federal laws that are based upon the principle will apply.

In such a scenario, these laws will permit a person who is born abroad to obtain U.S. birthright citizenship through their parentage, as opposed to assigning it by location like under the principle of jus soli.

In essence, if a child is born overseas and their parents are married to one another at the time of their birth, then U.S. citizenship may be granted to that child when any of the following conditions apply:

• A child born overseas may be granted valid U.S. citizenship when both parents are U.S. citizens and at least one parent has lived in the U.S. at some point before the child was born.
• A child born overseas may also be granted valid U.S. citizenship when one parent is a U.S. citizen and the other parent is a U.S. national if the parent who is a U.S. citizen has lived in the United States continuously for at least a year before the child was born.
• A child born overseas may even be granted valid U.S. citizenship when one parent is a U.S. citizen and the other parent is not, but only if:
  • The parent who holds U.S. citizenship was “physically present” in the United States for a total of five years (need not be consecutive or continuous) before the child was born; and
  • At least two of those five years were after the parent with U.S. citizenship was either over or was 14 years of age.

However, if the parents to a child born overseas are not married at the time of their child’s birth, then a different set of U.S. laws will apply. For instance, a child born abroad to unmarried parents will be granted U.S. birthright citizenship only in the following circumstances:

• When the mother is a U.S. citizen and has lived in the United States for a continuous period of time that amounts to at least one year, so long as their residency in the U.S. occurred before the child was born abroad.
• When the father is a U.S. citizen, has been physically present in the United States for a total of five years, and at least two of those five years were after their 14th birthday. In addition, an unmarried father with U.S. citizenship will also need to demonstrate the following in order for a child born overseas to be granted U.S. birthright citizenship:
  • That they will provide financial support for their child until the child turns 18 years of age or they become deceased; and
  • That they can establish paternity with clear and convincing evidence before the child reaches the age of 18 years old. Clear and convincing evidence for paternity may include acknowledging they are the child’s biological father through a written affirmation, taking a paternity test, and/or having paternity formally declared by a court.

In cases where the parent who holds U.S. citizenship is the father and is also not married to the mother of a child born overseas, it is very important for the child’s father to establish paternity before the child reaches their 18th birthday.

Otherwise, once the child turns 18 years of age, then the father will no longer be required or entitled to prove paternity since they are considered an adult. Thus, this could result in the child never exercising their right to birthright citizenship. In extreme cases, the now adult child may even be subject to removal or deportation from the United States if other legal requirements are not met.

Do I Need a Lawyer for proving Birthright Citizenship?

If you and/or your child require further guidance on the concept of birthright citizenship or need to know how to obtain valid proof of birthright citizenship, then it may be in your best interest to contact a local immigration lawyer as soon as possible.

An experienced immigration lawyer will be able to inform you of the requirements for proving birthright citizenship as well as can explain how immigration laws in the United States may affect the outcome of your issue.

Your lawyer can also assist you in gathering the right documents and legal forms. They can help you and/or your child to establish eligibility for birthright citizenship and all of the benefits that accompany it once it is confirmed.

In addition, if you have any other matters that are related to your birthright citizenship issue, such as preventing deportation or determining the father of your child, your lawyer will be able to offer legal services that may resolve these issues as well.