United States nationality law
Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Nationality Act of 1952 sets forth the legal requirements for the acquisition of, and divestiture from, American nationality. The requirements have become more explicit since the ratification of the Fourteenth Amendment to the Constitution, with the most recent changes to statutory law having been made by the United States Congress in 2001.
Rights and responsibilities of U.S. citizens
Rights of citizens
Adult citizens of the United States who are residents of one of the 50 states or the District of Columbia (Washington, D.C.) have the right to participate in the political system of the United States, as well as their state and local governments (with most states having restrictions on voting by persons convicted of felonies, and a federal constitutional prohibition on naturalized persons running for President and Vice President of the United States), to be represented and protected abroad by the United States (through U.S. embassies and consulates), and to live in the United States and certain territories without any immigration requirements. Felons can vote in over 40 states, and in at least 2 while incarcerated. Felons can also serve jury duty if approved.
Responsibilities of citizens
Some U.S. citizens have the obligation to serve in a jury, if selected and legally qualified. Citizens are also required (under the provisions of the Internal Revenue Code) to pay taxes on their total income from all sources worldwide, including income earned abroad while living abroad. Under certain circumstances, however, U.S. citizens living and working abroad may be able to reduce or eliminate their U.S. federal income tax via the Foreign Earned Income Exclusion or the Foreign Tax Credit. U.S. taxes payable may be alternatively reduced by credits for foreign income taxes regardless of the length of stay abroad. The United States Government also insists that U.S. citizens travel into and out of the United States on a U.S. passport, regardless of any other nationality they may possess.
Male U.S. citizens (including those living permanently abroad and those with multiple citizenship) from 18–25 years of age are required to register with the Selective Service System at age 18 for possible conscription into the armed forces. Although no one has been drafted in the U.S. since 1973, draft registration continues in the case of a possible reinstatement on some future date.
In the Oath of Citizenship, immigrants becoming naturalized U.S. citizens swear that when required by law they will bear arms on behalf of the United States, will perform noncombatant service in the U.S. Armed Forces, and will perform work of national importance under civilian direction. In some cases, the USCIS allows the oath to be taken without the clauses regarding the first two of these three sworn commitments.
Acquisition of citizenship
Section 1 of the Fourteenth Amendment to the United States Constitution provides that "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."
In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a person becomes a citizen of the United States at the time of birth, by virtue of the first clause of the 14th Amendment, if that person:
- Is born in the United States
- Has parents that are subjects of a foreign power, but not in any diplomatic or official capacity of that foreign power
- Has parents that have permanent domicile and residence in the United States
- Has parents that are in the United States for business
The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment, but it has generally been assumed that they are.
As of 2015, the "United States" includes all inhabited territories except American Samoa and Swains Island. (See § Citizenship at birth on the U.S. territories and former U.S. territories.)
Through birth abroad to United States citizens
A child is automatically granted citizenship if:
- Both parents were U.S. citizens at the time of the child's birth;
- The parents are married; and
- At least one parent lived in the United States prior to the child's birth. INA 301(c) and INA 301(a)(3) state, "and one of whom has had a residence."
The FAM (Foreign Affairs Manual) states "no amount of time specified."
A person's record of birth abroad, if registered with a U.S. consulate or embassy, is proof of citizenship. They may also apply for a passport or a Certificate of Citizenship as proof of citizenship.
Birth abroad to one United States citizen
- The person's parents were married at time of birth
- One of the person's parents was a U.S. citizen when the person in question was born
- The citizen parent lived at least five years in the United States before the child's birth
- A minimum of two of these five years in the United States were after the citizen parent's 14th birthday.
INA 301(g) makes additional provisions to satisfy the physical-presence requirements for periods citizens spent abroad in "honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization." Additionally citizens, who spent time living abroad as the "dependent unmarried son or daughter and a member of the household of a person" in any of the previously mentioned organizations can also be counted.
A person's record of birth abroad, if registered with a U.S. consulate or embassy, is proof of citizenship. Such a person may also apply for a passport or a Certificate of Citizenship to have a record of citizenship. Such documentation is often useful to prove citizenship in lieu of the availability of an American birth certificate.
Different rules apply for persons born abroad to one U.S. citizen before November 14, 1986. United States law on this subject changed multiple times throughout the twentieth century, and the law is applicable as it existed at the time of the individual's birth.
- The person's parents were married at the time of birth
- One of the person's parents was a U.S. citizen when the person was born
- The citizen parent lived at least ten years in the United States before the child's birth;
- A minimum of 5 of these 10 years in the United States were after the citizen parent's 14th birthday.
For persons born out of wedlock, the person is a U.S. citizen if all the following apply:
- the mother was a U.S. citizen at the time of the person's birth and
- the mother was physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the person's birth. (See link for those born to a U.S. father out of wedlock)
The Child Citizenship Act of 2000 (CCA), which went into effect on February 27, 2001, amends the Immigration and Nationality Act (INA) to provide U.S. citizenship to certain foreign-born children—including adopted children—of U.S. citizens.
A person who was not born a U.S. citizen may acquire U.S. citizenship through a process known as naturalization.
Eligibility for naturalization
To become a naturalized United States citizen, one must be at least eighteen years of age at the time of filing, a legal permanent resident (or non-citizen national) of the United States, and have had a status of a legal permanent resident in the United States for five years before they apply (this requirement is reduced to three years if they (a) acquired legal permanent resident status, (b) have been married to and living with a citizen for the past three years and (c) the spouse has been a U.S. citizen for at least three years prior to the applicant applying for naturalization.) They must have been physically present for at least 30 months of 60 months prior to the date of filing their application. Also during those 60 months if the legal permanent resident was outside of the U.S. for a continuous period of 6 months or more they are disqualified from naturalizing (certain exceptions apply for those continuous periods of six months to 1 year). They must be a "person of good moral character", and must pass a test on United States history and government. Most applicants must also have a working knowledge of the English language. There are exceptions, introduced in 1990, for long-resident older applicants and those with mental or physical disabilities.
Some exemptions from permanent residency exist for certain qualifying naturalization applicants. For example, an undocumented immigrant who served in the US military during a designated period of hostility may naturalize without having first been a permanent resident. An immigrant who successfully completes the MAVNI program may naturalize in 10 weeks without first having been a permanent resident. Similarly, an immigrant who has made extraordinary contributions can be exempted from residency as well as the physical presence requirement and prohibitions for support of totalitarianism and or communism.
A non-citizen U.S. national (see below) is also eligible for naturalization after becoming a resident of any state.
Applicants for citizenship are asked ten questions, and must answer at least six with the expected answers. U.S. Citizenship and Immigration Services has published a list of 100 sample questions (with the answers that should be given when taking the test), from which the questions asked are always drawn. The full list of questions is in the document "A Guide to Naturalization", available for free from the USCIS. The test examines the applicant's knowledge of American society and the English language. Sample questions and answers are published by the USCIS in English, Spanish, and Chinese.
An applicant will also be required to submit to an in-person interview.
Eligibility for public office
A person who becomes a U.S. citizen through naturalization is not considered a natural born citizen. Consequently, naturalized U.S. citizens are not eligible to become President of the United States or Vice President of the United States, which would ordinarily be the case as established by the Presidential Succession Act. For example, though the Secretary of Commerce and the Secretary of Labor are tenth and eleventh in the presidential line of succession, Elaine Chao and Carlos Gutierrez (respectively former U.S. Secretaries of Labor and Commerce under President George W. Bush) would have been unable to succeed to the presidency because they became U.S. citizens through naturalization. The highest-ranking naturalized citizens to have been excluded from the Presidential Line of Succession were Henry Kissinger and Madeleine Albright, each of whom would have been fourth in line as Secretary of State had they been natural born citizens.
Whether this restriction applies to children born to non-U.S. citizens but adopted as minors by U.S. citizens is a matter of some debate, since the Child Citizenship Act of 2000 is ambiguous as to whether acquisition of citizenship by that route is to be regarded as naturalized or natural-born. Those who argue that the restriction does not apply point out that the child automatically becomes a citizen even though violating every single requirement of eligibility for naturalization, and thus the case falls closer to the situation of birth abroad to U.S. citizens than to naturalization.
Some argue that the phrase "natural born citizen" describes a category of citizenship distinct from that described by the phrase "U.S. Citizen" in Article Two of the United States Constitution, and this was discussed during the constitutional convention of 1787. While it is true that "natural born citizen" is not defined anywhere within the text of the Constitution and that the Constitution makes use of the phrase "citizen" and "natural born citizen", Supreme Court Decisions from United States v. Wong Kim Ark to the present have considered the distinction to be between natural-born and naturalized citizenship.
In her 1988 article in the Yale Law Journal, Jill Pryor wrote, "It is well settled that 'native-born' citizens, those born in the United States, qualify as natural born. It is also clear that persons born abroad of alien parents, who later become citizens by naturalization, do not. But whether a person born abroad of American parents, or of one American and one alien parent, qualifies as natural born has never been resolved."
An April 2000 CRS report by the Congressional Research Service, asserts that most constitutional scholars interpret the phrase "natural born citizen" as including citizens born outside the United States to parents who are U.S. citizens under the "natural born" requirement.
Chester Arthur, born in the U.S. state of Vermont of an American mother and Irish father, was sworn in as President, but his status as a "natural-born citizen" was challenged on the grounds that he was allegedly born in Canada or Ireland. Presidential candidates George W. Romney (born in Mexico), Barry Goldwater and John McCain (born in U.S. territories), were never seriously challenged on the basis of their "natural born" citizenship, but no candidate falling under this classification has been elected President.
Expeditious naturalization of children
Effective April 1, 1995, a child born outside the U.S. to a U.S. citizen parent, if not already a citizen by birth because the parent does not meet the residency requirement (see above), may qualify for expeditious naturalization based on the physical presence of the child's grandparent in the U.S. In general the grandparent should have spent five years in the U.S., at least two of which were after the age of 14.
The process of naturalization, including the oath of allegiance, must be completed before the child's 18th birthday. It is not necessary for the child to be admitted to the U.S. as a lawful permanent resident.
Child Citizenship Act of 2000
Effective February 27, 2001, the Child Citizenship Act of 2000 provided that a non-U.S. citizen child (aged under 18) with a U.S. citizen parent, and in the custody of that parent while resident in the United States, automatically acquired U.S. citizenship. To be eligible, a child must meet the definition of "child" for naturalization purposes under immigration law, and must also meet the following requirements:
- The child has at least one United States citizen parent (by birth or naturalization)
- The child is under 18 years of age
- The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent
- The child has been admitted to the United States as a lawful permanent resident or has been adjusted to this status
- An adopted child must also meet the requirements applicable to the particular provision under which they qualified for admission as an adopted child under immigration law
Based on the U.S. Department of State regulation on dual citizenship (7 FAM 1162), the Supreme Court of the United States has stated that dual citizenship is a "status long recognized in the law" and that "a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact he asserts the rights of one citizenship does not, without more, mean that he renounces the other", Kawakita v. U.S., 343 U.S. 717 (1952). In Schneider v. Rusk, 377 U.S. 163 (1964), the U.S. Supreme Court ruled that a naturalized U.S. citizen has the right to return to his native country and to resume his former citizenship, and also to remain a U.S. citizen even if he never returns to the United States.
The Immigration and Nationality Act (INA) neither defines dual citizenship nor takes a position for it or against it. There has been no prohibition against dual citizenship, but some provisions of the INA and earlier U.S. nationality laws were designed to reduce situations in which dual citizenship exists. Although naturalizing citizens are required to undertake an oath renouncing previous allegiances, the oath has never been enforced to require the actual termination of original citizenship.
Although the U.S. government does not endorse dual citizenship as a matter of policy, it recognizes the existence of dual citizenship and completely tolerates the maintenance of multiple citizenship by U.S. citizens. In the past, claims of other countries on dual-national U.S. citizens sometimes placed them in situations where their obligations to one country were in conflict with the laws of the other. However, as fewer countries require military service and most base other obligations (such as the payment of taxes) on residence and not citizenship, these conflicts have become less frequent.
A U.S. citizen may lose his or her dual citizenship by obtaining naturalization in a foreign state, by taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or political subdivision thereof, by serving in the armed forces of a foreign state, or by performing certain other acts, but only if the act was performed "voluntarily and with the intention to relinquish U.S. nationality".
One circumstance where dual citizenship may run counter to expectations of government agencies is in matters of security clearance. For example, any person granted a Yankee White vetting must be absolutely free of foreign influence, and for other security clearances one of the grounds that may result in a rejected application is an actual or potential conflict of national allegiances.
Visa requirements for the United States citizens are administrative entry restrictions by the authorities of other states placed on citizens of United States. According to the 2016 Visa Restrictions Index, holders of a United States passport can visit 174 countries and territories visa-free or with visa on arrival. The United States passport is currently ranked joint 4th alongside in terms of travel freedom in the world.
Although all U.S. citizens are also U.S. nationals, the reverse is not true. As specified in 8 U.S.C. § 1408, a person whose only connection to the U.S. is through birth in an outlying possession (which is defined in 8 U.S.C. § 1101 as American Samoa and Swains Island (which is administered as part of American Samoa)), or through descent from a person so born, acquires U.S. nationality but not U.S. citizenship. This was formerly the case in only four other current or former U.S. overseas possessions.
- Guam (1898–1950) (Citizenship granted by an Act of Congress through the Guam Organic Act of 1950).
- the Philippines (1898–1935) (National status rescinded in 1935; granted independence in 1946; United States citizenship never accorded)
- Puerto Rico (1898–1917) (Citizenship granted through the Jones–Shafroth Act of 1917).
- the U.S. Virgin Islands (1917–1927) (Citizenship granted by an Act of Congress in 1927).
The nationality status of a person born in an unincorporated U.S. Minor Outlying Island is not specifically mentioned by law, but under international law and Supreme Court dicta, they are also regarded as non-citizen U.S. nationals.
In addition, residents of the Northern Mariana Islands who automatically gained U.S. citizenship in 1986 as a result of the Covenant between the Northern Marianas and the U.S. could elect to become non-citizen nationals within 6 months of the implementation of the Covenant or within 6 months of turning 18.
Non-citizen U.S. nationals may reside and work in the United States without restrictions, and may apply for citizenship under the same rules as resident aliens. Like resident aliens, they are not presently allowed by any U.S. state to vote in federal or state elections, although, as with resident aliens, there is no constitutional prohibition against their doing so.
Citizenship at birth on the U.S. territories and former U.S. territories
Separate sections of law handle territories that the United States has acquired over time, such as Alaska 8 U.S.C. § 1404 and Hawaii 8 U.S.C. § 1405, both incorporated, and unincorporated Puerto Rico 8 U.S.C. § 1402, the U.S. Virgin Islands 8 U.S.C. § 1406, and Guam 8 U.S.C. § 1407. Each of these sections confer citizenship on persons living in these territories as of a certain date, and usually confer native-born status on persons born in incorporated territories after that date.
For example, for Puerto Rico, all persons born in Puerto Rico between April 11, 1899, and January 12, 1941, were automatically conferred U.S. citizenship as of the date the law was signed by the President Harry S. Truman on June 27, 1952. Additionally, all persons born in Puerto Rico on or after January 13, 1941, are citizens at birth of the United States. Note that because of when the law was passed, for some, the citizenship status was retroactive.
The law contains one other section of historical note, concerning the Panama Canal Zone and the nation of Panama. In 8 U.S.C. § 1403, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother or father who is a United States citizen, was "declared" to be a United States citizen at birth.
All persons born in the U.S. Virgin Islands on or after February 25, 1927, are native-born citizens of the United States. The 8 U.S.C. § 1406 also indicate that all the persons and their children born in the U.S. Virgin Islands subsequent to January 17, 1917, and prior to February 25, 1927, are declared to be citizens of the United States as of February 25, 1927 if complied with the U.S. law dispositions.
All persons born in Alaska on or after June 2, 1924, are native-born citizens of the United States. Alaska was declared a U.S. State on January 3, 1959.
All persons born in Hawaii on or after April 30, 1900, are native-born citizens of the United States. Hawaii was declared a U.S. State on August 21, 1959.
All persons born in the island of Guam on or after April 11, 1899 (whether before or after August 1, 1950) subject to the jurisdiction of the United States, are declared to be citizens of the United States.
Currently under the Immigration and Nationality Act of 1952 (INA) effective from December 24, 1952 to present the definition of the "United States" for nationality purposes, was expanded to add Guam; and, effective November 3, 1986, the Northern Mariana Islands (in addition to Puerto Rico and the Virgin Islands of the United States). Persons born in these territories on or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States; and "Outlying possessions of the United States" was restricted to American Samoa and Swains Island.
Congressional Research Service Report number RL30527 of April 17, 2000, titled "Presidential Elections in the United States: A Primer" asserts that citizens born in Guam, Puerto Rico, and the U.S. Virgin Islands are legally defined as natural born citizens, and are, therefore, also eligible to be elected President.
Loss of citizenship
As a historical matter, U.S. citizenship could be forfeited upon the undertaking of various acts, including naturalization in a foreign state (with a willful intent to renounce U.S. citizenship) or service in foreign armed forces. In addition, before 1967 it was possible to lose the citizenship due to voting in foreign elections. However, the Supreme Court ruled unconstitutional the provisions of Section 349(a) which provided for loss of nationality by voting in a foreign election in the case Afroyim v. Rusk, 387 U.S. 253, 8 U.S.C. § 1481 specifically outlines how loss of nationality may occur, which predominantly involves willful acts over the age of 18 with the intention of relinquishing United States nationality. U.S. Supreme Court decisions beginning with Afroyim v. Rusk constitutionally limited the government's capacity to terminate citizenship to those cases in which an individual engaged in conduct with an intention of abandoning their citizenship.
In 1990, the U.S. State Department adopted new regulations which presume that an individual does not intend to give up citizenship when performing one of the above potentially expatriating acts. If asked, the individual can always answer that they did not intend to give it up; this is sufficient to retain their citizenship. Hence, the U.S. effectively allows citizens to acquire new citizenships while remaining a U.S. citizen, becoming a dual citizen.
After a U.S. citizen satisfies the Department of State procedures, the Department of State issues a Certificate of Loss of Nationality (CLN) signifying that the Department of State has accepted the U.S. Embassy/Consulate's recommendation to allow the renunciation. Renunciation of citizenship includes renunciation of all rights and privileges of citizenship. A person who wants to renounce U.S. citizenship cannot decide to retain some of the privileges of citizenship, as the State Department regards this as logically inconsistent with the concept of renunciation. Thus, such a person can be said to lack a full understanding of renouncing citizenship or lack the necessary intent to renounce citizenship, and the Department of State will not approve a loss of citizenship in such instances.
People giving up U.S. citizenship may be subject to an expatriation tax. Originally, under the Foreign Investors Tax Act of 1966, people determined to be giving up citizenship for the purpose of avoiding U.S. taxation were subject to 10 years of continued taxation on their U.S.-source income, to prevent ex-citizens from taking advantage of special tax incentives offered to foreigners investing in the United States. Since 2008, these provisions no longer apply; instead, ex-citizens who meet certain asset or tax liability thresholds pay a one-time capital gains tax on a deemed sale of their U.S. and non-U.S. assets, regardless of their reasons for giving up citizenship. The Reed Amendment, a 1996 law, makes former citizens inadmissible to the U.S. if the Attorney General finds that they renounced citizenship for purposes of avoiding taxes; however, it has never been enforced. Proposals such as the Ex-PATRIOT Act to rewrite the Reed Amendment and make it enforceable failed in 2012 and 2013.
It is also possible to forfeit U.S. citizenship upon conviction for an act of treason against the United States. Prominent former Nazi officers who acquired American citizenship have also had it revoked if the Office of Special Investigations has been able to prove that the citizenship was obtained by concealing their involvement in war crimes committed by the Nazis in World War II.
Emigration from United States
Notes and references
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- In the Panama Canal Zone only those persons born there prior to January 1, 2000 with at least one parent as a U.S. citizen were recognized as U.S. citizens and were both nationals and citizens. Also in the former Trust Territory of the Pacific Islands the residents were considered nationals and citizens of the Trust Territory and not U.S. nationals.
- Organic Act of Guam, Pub.L. 81–630, 64 Stat. 384, enacted August 1, 1950
- An Act to provide for the complete independence of the Philippine Islands, to provide for the adoption of a constitution and a form of government for the Philippine Islands, and for other purposes., Pub.L. 73–127, 48 Stat. 456, enacted March 24, 1934; §8, "... For the purposes of the Immigration Act of 1917, the Immigration Act of 1924 (except section 13(c)) this section, and all other laws of the United States relating to the immigration, exclusion, or expulsion of aliens, citizens of the Philippine Islands who are not citizens of the United States shall be considered as if they were aliens."
- Treaty of Manila (1946), 61 Stat. 1174, TIAS 1568, 7 UNTS 3
- Licudine v. Winter, 603 F. Supp. 2d 129 (D.C. 2009) (“"[f]rom the time the United States obtained dominion over the Philippines in 1899 until it granted independence to the islands in 1946, [the United States] Congress classified natives of the Philippines as Philippine citizens, as non-citizen United States nationals, and as aliens, but never as United States citizens."”).
- An Act to provide a civil government for Porto Rico, and for other purposes, Pub.L. 64–368, 39 Stat. 951, enacted March 2, 1917
- An Act to confer United States citizenship upon certain inhabitants of the Virgin Islands and to extend the naturalization laws thereto, Pub.L. 69–640, 44 Stat. 1234, enacted February 25, 1927
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- "THE LAST". Bozeman Daily Chronicle. Bozeman, Mont. April 4, 2010. p. H.8.
- Carter, Mike (December 12, 2009). "U.S. citizenship trial delayed for elderly Washington state man allegedly involved in Nazi death squad". McClatchy – Tribune News Service. Washington.
- Robert James McWhirter (2007). The citizenship flowchart. American Bar Association. ISBN 978-1-59031-921-5.
- 1952 Immigration and Nationality Act
- U.S. Citizenship Information
- U.S. Naturalization
- Citizenship & Nationality Law – U.S. State Department
- Regulations regarding loss of citizenship
- Free Online U.S. Citizenship Practice Test
- Common U.S. Citizenship Test & Interview Questions
- U.S. Citizenship Practice Test
- Naturalization Test