Understanding U.S. Citizenship by Descent

Tadeo & Silva Law can help if you’re trying to establish U.S. citizenship by descent. Let us guide you through the process of obtaining citizenship. Contact us today!

Author: Massiel Silva Tadeo, Founder, Tadeo & Silva

Attorney Massiel Silva Tadeo is a partner and owner at The Tadeo & Silva Law Firm. She specializes in removal (deportation) defense, family immigration, and hardship waivers. Updated on: September 19, 2023.

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Unlocking Your Heritage: U.S. Citizenship by Descent

Do you have a parent or grandparent who was a U.S. citizen at the time of your birth? If so, you might already be a U.S. citizen and not even know it! U.S. citizenship by descent is a concept that allows citizenship to be passed down from a parent to their child. It’s a fascinating aspect of immigration law that could potentially change your life.

The United States is often referred to as the land of opportunity. U.S. citizens have the right to live, work, and study anywhere in the country without needing a visa or permit. Furthermore, they are eligible for federal benefits and protection of the U.S. government policies. You might be eligible for all these benefits without knowing it.

It can be helpful to understand this branch of law if you plan to live outside the U.S. for a while and think you may have a child during your time away. It will help you understand how your citizenship passes down to your newborn. Read on to discover how you can become a U.S. citizen by descent.

 

Eligibility Criteria for Citizenship by Descent

 

If you were born in the U.S., you already have citizenship by birth. A child born abroad, however, can acquire citizenship from their U.S. citizen parent.

US citizenship by descent operates under certain legal principles, which differ depending on the following:

  • Whether the American parent of the child born abroad resides inside or outside the United States.
  • The parents’ marital status at the time of their child’s birth abroad.

Where the Parents Reside in the U.S.

According to Section 320 of the Immigration and Nationality Act (INA), children who were born outside of the U.S. but are currently residing in the United States automatically acquire U.S. citizenship when all the circumstances listed below are satisfied on or after February 27, 2001:

  • The child is under 18.
  • The child is a lawful permanent resident.
  • At least one parent, including an adoptive parent, is a U.S. citizen by birth or naturalization.
  • The child currently resides in the U.S. under their US citizen parent’s legal and physical custody.

You can file Form N-600, Application for Certificate of Citizenship, with the United States Citizenship and Immigration Services.

 

Where the Parents Reside Outside the U.S.

Under Section 322 of the INA, a child born abroad who ordinarily resides outside of the U.S. may become a citizen if all of the following requirements are satisfied:

  • The child is under 18.
  • At least one parent, including an adoptive parent, is a U.S. citizen by birth or naturalization.
  • The child currently resides outside the U.S. under the legal and physical custody of their US citizen parent or, if the U.S. citizen parent is deceased—a person who does not object to the application.
  • The child’s parent or grandparent is a citizen of the United States and satisfies specific conditions for physical presence in the country or an outlying possession, i.e., American Samoa and Swains Island.
  • When the application is granted, and the naturalization takes place, the child is physically present, admitted legally, and maintains their legal status in the country.

An exception, however, exists for children of U.S. citizens who are in military service. Such families can complete the entire process from abroad.

Children Born Abroad to Two U.S. Citizen Parents in Wedlock

Such children can acquire citizenship at birth if, before their child’s birth, at least one parent had a residence in the United States or one of its outlying possessions. In these situations, a child cannot acquire U.S. citizenship without at least one of the American parents having a genetic or gestational tie with them.

Children Born Abroad to One U.S. Citizen Parent in Wedlock

 

Such children can acquire citizenship by descent if each of the following conditions has been met:

  • The child was born on or after November 14, 1986.
  • The U.S. citizen parent has been physically present in the United States or one of its outlying possessions before the child’s birth for five years.
  • Out of the five years, at least two years were spent by the parent in the U.S. after they turned fourteen.

Contact citizenship naturalization attorneys from Tadeo & Silva Law to understand the requirements if you or your child was born overseas between December 24, 1952, and November 13, 1986.

Children Born Abroad to a U.S. Citizen Father and an Alien Mother Out-of-Wedlock

Such children may be entitled to U.S. Citizenship if the following conditions are met:

  • Clear and persuasive proof is shown to prove that the individual in question is the child’s biological father.
  • When the child was born, the father was a citizen of the United States.
  • The father agreed in writing to provide financial support for the child until they reach the age of 18.
  • If the child was born on or after November 14, 1986, then the U.S. citizen father was physically present in the United States or one of its outlying possessions for five years before the child’s birth. At least two of those years must be spent being physically present in the U.S. after turning 14.

 

Children Born Abroad to a U.S. Citizen Mother Out-of-Wedlock

If the child was born between December 24, 1952, and June 11, 2017, they may be entitled to U.S. citizenship, provided the mother was:

  • An American citizen at the time of the child’s birth.
  • Physically present in the United States for at least 365 continuous days before the child’s birth.

If the child was born on or after June 12, 2017, they may be entitled to U.S. citizenship, provided the mother was:

  • An American citizen at the time of the child’s birth.
  • Physically present in the United States or one of its outlying possessions for five years before the child’s birth. At least two of those five years must be spent being physically present in the U.S. after turning 14.

What Happens if You Are Already Over 18?

If you are over 18 and were born abroad to U.S. citizen parents, you may still be eligible for citizenship. However, you won’t be eligible for a Consular Report of Birth Abroad.

You would need to prove that at least one of your parents was an American citizen at the time of your birth. Additionally, they are required to have been physically present in the U.S. for a sufficient period of time to be able to transmit citizenship. You may also need to submit proof of legitimation.

You may benefit from consulting a top immigration lawyer from Tadeo & Silva Law. We can properly guide and advise you on the steps involved in acquiring citizenship after you have turned 18.

 

Documents Required for Filing Citizenship by Descent

 

To establish your claim to citizenship by descent, you may need to provide a variety of documents, including:

  1. Your birth certificate.
  2. Your American parent’s birth certificate.
  3. Evidence of your parent’s physical presence in the U.S. before your birth.
  4. Your parents’ marriage certificate and evidence of the termination of any previous marriages. (If applicable)

The list of documents varies depending on the specifics of your situation. Consider consulting a family-based immigration lawyer to help you put together the list of documents applicable to your case.

Ready to Uncover Your Heritage? Let Tadeo & Silva Law Help You

The legal journey of obtaining U.S. citizenship can be complex and tricky. The interpretation of laws and documentary requirements can change based on individual circumstances and even court rulings. Without proper guidance, you may end up with a denied naturalization application.

Our legal professionals at Tadeo & Silva Law handle immigration law and citizenship matters. We understand the intricacies involved in claiming U.S. citizenship by descent. We are here to help you explore your eligibility, guide you through document preparation, and assist you in dealing with any challenges that might arise. Our experienced team is here to help you every step of the way. Contact us today – let’s embark on this exciting journey together.

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