Understanding U.S. Citizenship by Birth

Also termed birthright citizenship, it refers to citizenship acquired by virtue of a person’s circumstances surrounding their birth. There are two forms of birthright citizenship – jus soli and jus sanguinis. The laws of most countries, including the U.S., include both.

Jus Soli Citizenship

Jus soli means “right of soil.” It refers to the right of a child to acquire citizenship in whichever country they are born in. The 14th Amendment recognizes this type of birthright citizenship in the U.S. It 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.”

Under this provision, those born in the U.S. and its territories are automatically recognized as citizens. Their parent’s citizenship status does not matter. However, the phrase “subject to the jurisdiction thereof” limits citizenship from applying to children of foreign diplomats. This is because they are not subject to the jurisdiction of U.S. law. Such children may, however, be able to acquire lawful permanent residence.

Jus Sanguinis Citizenship

Jus sanguinis means “right of blood.” It refers to a child’s right to acquire their parent’s citizenship. Here, the parents’ citizenship becomes the child’s birthright and is passed down automatically. This is irrespective of where the child is born. U.S. law provides for this form of citizenship at birth to children of American citizens born abroad.

• The individual is a child of a U.S. citizenship parent(s).
• Both legal parents of the child are in a lawful marriage, with at least one of them being either the genetic or gestational parent at the child’s birth.
• The parent satisfies the residency or physical presence criteria the relevant law mandates, and the child fulfills all other pertinent conditions under Section 301.

Where the Child Is Born in Wedlock to a U.S. Citizen and an Alien 

A child born abroad under these circumstances will acquire citizenship under the INA if:

• The U.S. citizen parent was present in the United States or one of its outlying possessions for five years.
• These five years were before the child’s birth, at least two of which were after they turned 14.

Where the Child Is Born Out of Wedlock to a U.S. Citizen Father

A child born abroad under these circumstances will acquire citizenship under the INA if:

• There is clear evidence of a blood relationship between the child and the father.
• The father was a U.S. citizen at the time of the birth of the child.
• The father (unless dead) has agreed in writing to financially support the child until they are 18.
• One of the following criteria is met while the child is under 18:
  • They are legitimated under the law of their place of residence or domicile.
  • The father acknowledges the paternity of the child in writing under oath.
  • A competent court establishes the paternity of the child.

Furthermore, the residency or physical presence criteria specified in the corresponding section of INA 301 still apply to children born to unmarried parents seeking citizenship through their fathers.

Where the Child Is Born Out of Wedlock to a U.S. Citizen Mother

Children born under these circumstances between December 23, 1952, and June 11, 2017, will acquire citizenship if:

• The mother was a U.S. citizen when the child was born.
• The mother was present in the U.S. or one of its outlying possessions for a continuous period of one year before the birth of the child.

Children born in these circumstances after June 11, 2017, will acquire citizenship if:

• The mother was a U.S. citizen when the child was born.
• The mother was present in the U.S. or one of its outlying possessions for five years, including two years after turning 14.

Where the Child Is Born Out of Wedlock to Two U.S. Citizens

A child born in these circumstances will acquire citizenship under the INA if:

• The requirements for a child born to a U.S. citizen father outside wedlock are satisfied.

Alternatively, suppose the father does not satisfy any of these criteria. In that case, the child will acquire citizenship if the requirements for a child born to a U.S. citizen mother outside wedlock are satisfied.

NOTE: These laws change over time. Therefore, it helps to seek up-to-date advice from a top immigration lawyer in Atlanta.