Sometimes people who were not born in the United States are citizens anyway, based on the state of the law at the time of their birth. In fact, the history of citizenship laws in the United States is fairly complicated. Anyone born before 1941, to one parent who is a United States citizen, is also a citizen as long as the parent resided at any time in the United States prior to the child’s birth.
Also, anyone born from January 13, 1941 to December 24, 1952 is automatically a citizen upon birth, provided their U.S. citizen parent was physically present in the United States for ten years prior to the birth of the child, and five of those ten years were after the parent’s 16th birthday. Thus, only parents who had their kids after turning 21 would be able to transmit citizenship to them. Recently, I had a client fall in this trap, because his father had him when he was a few months under 21, and therefore he, after having been in the United States since he was just a few days old, had to apply for permanent residence as a 50+ year old man. Luckily for him, he was allowed to do this under the “registry” laws of the 1970s.
From 1952 to 1986, the requirements were that the parent have resided in the United States for ten years prior to the child’s birth, five of which were after the age of 14, instead of 16. This small correction would have helped the client mentioned above, as his father would have been able to transmit citizenship to him.
Currently, the United States citizen parent need only live in the U.S. for five years before the child’s birth, two of which are after the age of 14. *This article does not include analysis of the situation where the parent is in the military. If this situation applies to you, I suggest you contact an attorney for a detailed review of your case.
One other consideration is that those born to United States citizen men, who were not married to the foreign mother bear, a serious burden of additional hurdles to “transmitting” citizenship to the child. That is, under Immigration and Nationality Act 309: the father (unless deceased) must have agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and while the person is under the age of 18 years the person is legitimated under the law of the person’s 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.
For women, between 1855 and 1922, the laws of the United States declared that whenever a woman married, she took the citizenship of her husband. That means that if she were a citizen of the U.S., and she married a foreigner, she would take on the citizenship of that foreigner. Similarly, if she were a foreigner and married a citizen, she would become a citizen automatically, without all the petitions, applications, fees, etc. that are required today.
Because of these complex citizenship laws, which alter citizenship as of the date of birth of the child even if no one knows about it until later in life, it’s important to consider these situations for anyone born abroad to at least one U.S. citizen parent. I have had a number of clients where these issues come up in removal proceedings, that is, where the person born abroad now faces deportation, only to find out that he or she is in fact a citizen of the United States, since the date of their birth.