Derivative U.S. Citizenship at Birth

By Angela J. Schnell, Esq.

The United States is one of the few countries that still offer birthright citizenship to any person born on U.S. soil.  Birthright is enshrined in the 14th Amendment to the Constitution and was originally intended to give citizenship rights to all slaves born in the U.S. following the Civil War.  Birth in the United States is the most straightforward way to acquire U.S. citizenship, but it is not the only way a person is born a U.S. citizen.

Derivative citizenship is when a child is born outside of the U.S. to at least one U.S. citizen parent who meets certain eligibility requirements.  If the requirements are met, the child automatically derives citizenship upon his or her birth.  No affirmative action is required of the child to acquire citizenship.

Determining Whether You are A U.S. Citizen

Derivative citizenship is governed by the laws in effect at the time of birth of the potential citizen.  The laws differentiate between children born in and out of wedlock, and generally require presence of the U.S. citizen parent for a certain time period.  Practitioners should refer to the USCIS Nationality Charts for applicable laws.  Additionally, practitioners should request of potential citizens: their birthdate, parental citizenship, and parental marital status at the time of birth.

For example, a client was born in Canada to a U.S. citizen parent married to a Canadian parent on January 1, 1990.  The client’s U.S. citizen parent lived in the U.S. from birth until age 22.  Practitioners would refer to USCIS Nationality Chart 1.  Nationality Chart 1 shows persons born in wedlock outside the U.S. after November 11, 1986 to a U.S. citizen parent and alien parent derive U.S. citizenship when the citizen parent was physically present in the U.S. for five years, at least two years of which were after the parent was age 14.  Therefore, given the scenario above, the client derived U.S. citizenship at birth.

Alternatively, if the same client’s U.S. citizen parent resided in the U.S. from birth to age 10, that client would not derive citizenship because his citizen parent was not present in the U.S. for two years after age 14 and therefore does not meet the statutory requirements to pass citizenship to the client.

Establishing Your U.S. Citizenship Claim

Once a practitioner determines that a client derived U.S. citizenship, the next step is to assist the client in obtaining proof of their citizenship.  The most straightforward way of establishing U.S. citizenship is to apply for a U.S. passport.

Derivative citizens must apply for a U.S. passport in person at either a Passport agency in the United States or a U.S. Embassy or Consulate abroad.  In addition to the normal documentary requirements for a U.S. Passport application, a derivative citizen must also submit of their U.S. citizen parent’s citizenship and presence.

If the U.S. citizen parent is still alive, the parent must execute a statement detailing their residence or physical presence in the United States prior to the derivative citizen’s birth.  This statement should be as detailed as possible, including dates and location addresses for time spent in the United States.  Additionally, if the child was born in wedlock, the parents’ Marriage Certificate will need to be presented for inspection.

The U.S. citizen parent should also provide additional documentation of their time spent in the U.S. prior to the derivative citizen’s birth.  Practitioners should request detailed affidavits from friends or family members who can attest to the citizen parent’s presence in the U.S. as well as supporting documentation such as school records, social security wage statements, taxation documents, leases, etc.  This documentation should be organized under a Table of Contents and careful accounting should be made of the parent’s time spent in the United States to evidence fulfillment of the statutory requirements.

When applying for a U.S. Passport, original documentation is required for inspection.  Applicants should bring with them their original Birth Certificate and original supporting documents as well as copies for submission.  Once the original documents are inspected, the officer will return the originals and keep the copies for inclusion with the Passport application.

“Accidental Americans”

It is important for practitioners to determine if their clients are U.S. citizens.  Primarily because a U.S. citizen does not need to apply for immigration benefits to live or work in the United States.  Citizenship is a permanent benefit that allows the derivative citizen the privileges afforded to all other citizens.

Along with the privileges of U.S. citizenship, derivative citizens are also subject to the same responsibilities as other U.S. citizens.  Specifically: the responsibility of paying U.S. taxes.  Even if a derivative citizen does not affirmatively claim citizenship, U.S. citizenship was derived at birth and the derivative citizen is a citizen for taxation purposes.  Derivative citizens who are unaware of their U.S. citizenship are often called “accidental Americans,” and they may be responsible for significant U.S. taxes even if they are unaware of their U.S. citizenship.  As such, it is very important to determine whether someone is a derivative citizen so that they can take advantage of the privileges as well as fulfill their responsibilities as U.S. citizens.