As a cross-border law firm located in Canada. an issue that often comes up in our practice is the citizenship of our clients’ children. Well, what I mean by that is sometimes the kids were born here, but automatically acquired U.S. citizenship at birth without knowing it. Of course, this can be a hassle for the kids from a tax perspective if they are indeed U.S. citizens and they have never filed taxes with the IRS.
Then there are those clients who want their seemingly non-U.S. citizen children to have an opportunity to live and work in the U.S. Going through the U.S. immigration system can be quite time-consuming and costly for these clients, so we look at whether their children may have some kind of claim to citizenship through their parents or even a grandparent, or analyze whether they meet the basic requirements for citizenship for children.
Whether a child’s citizenship is automatic at birth or at some time after birth refers to citizenship by acquisition, derivation, or application – three ways that children born outside the U.S. to a U.S. citizen parent either already have or can obtain U.S. citizenship. A successful case often turns on a myriad of factors and the law in effect during various periods of time.
Citizenship by Acquisition
Children born abroad to one or both U.S. citizen parent(s) automatically acquire U.S. citizenship at birth. While this rule may seem simple enough, it unfortunately is not. To determine whether a child has been born abroad to U.S. parents, a review of the law in effect at the time of the child’s birth is required. This review often includes analyzing certain residency requirements for the U.S. parents, which, until last year, differed depending on whether the parent was married or unmarried. In June 2017, the U.S. Supreme Court held that it is unconstitutional sex discrimination for U.S. law to impose different residency requirements on unmarried citizen mothers and unmarried citizen fathers.
Citizenship by acquisition is often confused with citizenship by derivation because there are many similarities between the two; however, there are just as many differences.
Citizenship by Derivation
At the heart of the citizenship by derivation analysis is a foreign-born child automatically becoming a U.S. citizen after they have been born as opposed to at their time of birth, which is the case with citizenship by acquisition. U.S. citizenship is more often derived through a parent becoming a naturalized citizen of the United States at some point after their child’s birth. Taking into account the child’s age, U.S. immigration status, and other factors, s/he can automatically become a U.S. citizen upon the occurrence of the parent’s naturalization or on the date of the last act required to automatically derive citizenship.
Children who would have derived U.S. citizenship but fail to do so for lack of having the requisite U.S. immigration status may still become citizens of the United States on application by their parents.
Citizenship by Application
Often referred to as “Naturalization of Children”, some minor-aged, unmarried children of U.S. citizens born and living outside the U.S. may obtain a certificate of citizenship. Five (5) requirements involving the parent’s or grandparent’s citizenship, the child’s age, the legal and physical custody of the child, residency, and U.S. immigration status must all be satisfied to be eligible for citizenship by application, and the entire process must be completed by the child’s 18th birthday.
The analysis to determine whether and when a child automatically becomes a U.S. citizen is a difficult undertaking, and sufficiently documenting the case can be tricky. Proving some elements may require historical documents that are no longer in existence, or those with knowledge of relevant facts may have passed on. Therefore, child citizenship is a complex area of immigration law that is very difficult to navigate on your own.