Children Born Outside of the US May be US Citizens at Birth

By Reuben Seguritan


May 16, 2018


When a child is born in the United States, he or she is a United States citizen at birth. If a child is born outside the United States, the child may also be a US citizen at birth, so long as at least one parent is a US citizen at the time of the child’s birth.


When both parents are US citizens, there is no doubt that the child is a US citizen at birth, even if the child was born abroad. The same is true when a US citizen is married to a non-US citizen and a child is born because of this union. The child is a US citizen from birth, regardless of where the child was born. However, the law requires that the US citizen parent must have lived in the United States for at least five years prior to the birth of the child and at least two years of that period must be after the age of 14.


If the child was born in the Philippines, the United States requires that the birth of the child be reported to the US Embassy in Manila. After completing the required forms, submitting the required documents, payment and interview at the Embassy, the Consular Report of Birth Abroad (CRBA) will be issued. The CRBA is an official record of U.S. citizenship issued to a person under age 18 who was born abroad to United States citizen parent(s) and acquired citizenship at birth. Only the child’s biological parent or legal guardian, preferably the US citizen parent, can apply for the CRBA.  Either parent, including the non-US citizen parent, may execute and sign the application.  If it will be signed and executed by a legal guardian, a special power of attorney from the parent or parents or guardianship affidavit must be submitted.  The application must be made before the child’s 18th birthday and the child must make a personal appearance at the US Embassy.


In a recent case decided by the US Supreme Court, the question was raised as to whether a child born abroad to his unwed parents, his US citizen father and his South American mother, made him a US citizen at birth.


The Immigration and Nationality Act (INA) provides the framework for ac­quisition of US citizenship from birth by a child born abroad, when one parent is a US citizen and the other parent is a citizen of another nation. Applicable to married couples, the main rule requires the US citizen parent to have five years of physical presence in the United States prior to the child’s birth, at least two of which were after attaining the age of 14. The rule is made applicable to unwed US citizen fathers. However, this rule does not apply to unwed US citizen mothers. The rule for unwed US citizen mothers only requires them to have continuously lived in the US for one year prior to the child’s birth.


In the said case, the child was born out of wedlock and lived in the United States since he was 13. He asserted his US citizenship based on the US citizenship of his biological father. His father moved to the Dominican Republic 20 days short of his 19th birthday, therefore failing to satisfy the required five years’ physical presence after age 14. There, he lived with the Do­minican mother of the child. The US citizen accepted parental responsibility and included the child in his house­hold. He then married the mother of his child and his name was then added to hers on the child’s birth certificate.


In 2000, the Government sought to remove the child based on several criminal convictions, stating that he was an alien because, at his birth, his father did not satisfy the requirement of five years of physical presence after age 14. The immigration judge rejected his citizenship claim and ordered his removal.


Lawyers for the child argued that the gender-based difference in the law governing acquisition of US citizenship by a child born abroad, when one parent is a US citizen, and the other a citizen of another nation was unconstitutional.


The US Supreme Court agreed with the child and stated the gender-difference in the pre-birth residence in the United States requirement of the US citizen parent violated the equal protection principle and must be struck down. Hence, the rule now states that the five-year physical presence requirement should apply, prospectively, to children born to unwed US citizens, regardless of gender.


On April 18, 2018, the United States Citizenship and Immigration Services (USCIS) issued a policy alert clarifying the new requirement. The required pre-birth physical presence of five years in the United States for the US citizen parent, regardless of gender, applies to children born out of wedlock on or after June 12, 2017. For children born before June 12, 2017, the old rule applies.


The USCIS also added that a separate agreement or contract is not required in order to prove the father of the child accepted the legal obligation to support the child (before the age of 18) or that such obligation to provide support was imposed on the father by a court or an administrative governmental agency.