U.S. Citizenship

Citizenship by derivation or automatic acquisition

Becoming a United States citizen without going through the Naturalization application process can either happen automatically if born on U.S. soil or incorporated territories, or if born overseas to at least one U.S. citizen parent. Strict requirements apply when deriving from a parent and vary according to the year of birth of the applicant. Thus, it is always recommended to speak to an experienced immigration attorney about your specific situation.

Citizenship

U.S. citizenship is granted either automatically by being born on U.S soil or incorporated territories (jus soli) or by having U.S. citizen parent(s) (jus sanguinis) from birth. A child can also acquire citizenship later through his or her parent(s)’s own naturalization if it occurred prior to the child reaching the age of 18.

Automatic Acquisition Of Citizenship At Birth

A child born outside of the United States to one or two U.S. citizen parents may acquire U.S. citizenship at birth. Note that the laws have changed the requirements over the years, especially the Child Citizenship Act (CCA), effective February 27, 2001. One should consult with an experienced immigration lawyer to find out whether he or she meets those requirements if there is any doubt.

Born In-Wedlock

1. Child of Two U.S. Citizen Parents
   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; an
   • 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
   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
   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 or possession for at least 5 years prior to the child’s birth, 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.

Born Out-of-Wedlock

1. Child of a U.S. Citizen Father
   A child born out of wedlock to a U.S. citizen father and foreign national mother outside of the United States and its outlying possessions acquires citizenship at birth 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.; and
   • The child’s father is physically present in the U.S. or possession five years prior to child’s birth, two of which after age 14.
2. 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 but before June 12, 2017;
   • 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.

   OR

   • The child was born after June 12, 2017;
   • 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 five years prior to the child’s birth, two of which after age 14.
3. Birth Abroad to Two U.S. citizen parent
   For children born prior to June 12, 2017, the child can apply for citizenship through either parent. For children born after June 12, 2017, the agencies will look at whether the father meets the requirements of legitimation and blood relationship as mentioned above as well as whether either parent residing in the U.S. at any time prior to the child’s birth.

Application for Certificate of Citizenship or U.S. Passport

A person born abroad who acquires U.S. citizenship at birth is not required to file an Application for Certificate of Citizenship. It is recommended, however, that if the person seeks documentation of such status, to 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.

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.

Upon the approval of the Application for Certificate of Citizenship and provided the person takes the Oath of Allegiance, USCIS will issue a proof of U.S. citizenship in the form of a Certificate of Citizenship.

II- Automatic Acquisition of Citizenship after Birth- Citizenship by Derivation

A child under 18 who was not born in the U.S. but has a U.S. citizen parent can also become a U.S. citizen upon meeting the requirements.

For a child who resides in the United States to automatically become a United States citizen, the child must:

• Be under 18 years of age
• Be a Legal Permanent Resident of the United States
• Have at least one parent who is a United States citizen by birth or by naturalization
• Reside in the U.S. in the legal and physical custody of the U.S. parent
• Be an adopted child and satisfy the requirements applicable to adopted children under the INA
• If born out-of-wedlock, be legitimated while under the age of 16 and while in the legal custody of the U.S. citizen parent

For a child who regularly resides outside of the United States to be eligible for citizenship, the child must:

• Be under the age of 18 years
• The child is residing outside of the United States in the legal and physical custody of the U.S. citizen parent (or, if the citizen parent is deceased, an individual who does not object to the application).
• The child is temporarily present in the United States after having entered lawfully and is maintaining lawful status in the United States.
• At least one parent is a U.S. citizen or, if deceased, the parent was a U.S. citizen at the time of death.
• The U.S. citizen parent or his or her U.S. citizen parent has (or at the time of death had) been physically present in the United States or its outlying possessions for at least 5 years, at least 2 of which were after attaining the age of 14.
• An adopted child may be eligible for naturalization if the child satisfies the requirements applicable to adopted children under the INA.

This area of law is convoluted. The assistance of a citizenship lawyer is primordial to determine whether you or another family member acquired U.S. citizenship at birth or through derivation (via a U.S. citizen parent or even a grandparent).

If you want to apply for naturalization or you would like to know if you are eligible to apply, contact us today. Orlando immigration attorneys Suzanne Vazquez and Maud Poudat are certified as experts in Immigration Law by the Florida Bar, have helped many clients in the past and would be glad to help you too. Our legal team includes a Hispanic immigration attorney who also speaks Spanish and French. We can be reached during office hours at (407) 674-6968. If you have an emergency after office hours please call us at (407) 925-2554 and we will contact you shortly.