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Child Born Abroad and US Citizenship

Posted: August 12th, 2013 | Author: | Filed under: Jaensch Immigration Law Firm | Tags: , | No Comments »

We recently had an inquiry concerning a child born abroad and US citizenship.  We provide information about this issue on our main website, VisaAmerica.com, but felt we should provide an explanation here as well.

There are two main possibilities with children born abroad:

  1. Two married US-citizen parents have a child abroad.  The child acquires US citizenship at birth, provided one of the parents resided in the US prior to the child’s birth.  No specific period of time for such residence is required.
  2. One US-citizen parent and another alien parent who are married have a child abroad.  The child acquires U.S. citizenship at birth, provided the citizen parent was physically present in the U.S. for the time period required by the law.

Reporting the Birth to Establish Citizenship:

The birth of a child abroad to a U.S. citizen parent(s) should be reported as soon as possible to the nearest U.S. embassy or consulate to establish an official record of the child’s claim to U.S. citizenship at birth. The official record is a Consular Report of Birth of a Citizen of the United States of America, or Form FS-240. This document, known as the Consular Report of Birth Abroad, is a basic United States citizenship document. An original FS-240 is furnished to the parents at the time the registration is approved. A Consular Report of Birth can be prepared only at a U.S. embassy or consulate. It cannot be prepared if the child has been brought back into the United States (although a different document may be requested – see the next two paragraphs), or, if the child is 18 years of age or older at the time the application is made. For more information, see Documentation of U.S. Citizens Born Abroad Who Acquire Citizenship at Birth.

If the child returns to the U.S. without a Form FS-240 being filed, an application may be made for a Certificate of Citizenship. Obtaining this certificate involves presentation of basically the same documentation required to obtain a Consular Report of Birth. Under law, the Consular Report of Birth and the Certificate of Citizenship are equally acceptable as proof of citizenship. File Form N-600 (Application for Certificate of Citizenship) with your nearest USCIS office.

A U.S. passport is also proof of citizenship. Click here for a list of the documentation needed to obtain a U.S. passport — you will need to apply in person to the nearest U.S. passport agency.

For additional information, see the State Department’s website for American citizen’s abroad, and, if you are outside the U.S., contact your nearest U.S. Embassy or Consulate.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “New” Section 309(a)

A person born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) of the INA, as made applicable by the “new” Section 309(a) of the INA provided:

  1. A blood relationship between the person and the father is established by clear and convincing evidence;
  2. The father had the nationality of the United States at the time of the person’s birth;
  3. The father was physically present in the United States or its outlying possessions prior to the child’s birth for five years, at least two of which were after reaching the age of 14.
  4. The father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and
  5. While the person is under the age of 18 years —
    • the person is legitimated under the law of his/her residence or domicile,
    • the father acknowledges paternity of the person in writing under oath, or
    • the paternity of the person is established by adjudication of a competent court.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father – “Old” Section 309(a) of the INA- A child born out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under the former Section 301(a)(7) of the INA as made applicable by the “old” Section 309(a) of the INA if the U.S. citizen father, prior to the child’s birth, had been physically present in the United States or one of its outlying possessions for ten years, five of which were after the age of 14, and if the paternity of the child had been established by legitimation prior to the child reaching the age of 21. The “old” Section 309(a) of the INA is applicable to individuals who were 18 on November 14, 1986 and to individuals whose paternity had been established by legitimation prior to that date. Individuals who were at least 15 on November 14, 1986, but under the age of 18, could opt to have their claim determined in accordance with the provisions of either the “old” or the “new” Section 309(a).

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother:

A person born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 309(c) of the INA if the mother was a U.S. citizen at the time of the person’s birth and if the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person’s birth. The mother must be genetically related to the person in order to transmit U.S. citizenship.