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Laws and Visa Information
“Automatic” Citizenship: Citizenship by Derivation and Acquisition
Attorney Robert L. Reeves, Jan 5, 2013
American citizenship is a status endowed with privilege and protection, as well as personal and social responsibility. It is a source of pride, promise, and opportunity.
There are myriad advantages to being a U.S. citizen. Only United States citizens are allowed to engage in the democratic process to choose leaders for America’s future known as voting. U.S. citizens—regardless of their place of birth—cannot be deported from the United States for acts committed after they became citizens. (Naturalized U.S. citizens can, in some instances, be stripped of citizenship and deported for fraud committed in order to obtain immigration status). Only a U.S. citizen can petition for a parent, a sibling, or a married son or daughter. The wife or child of a U.S. citizen is an “immediate relative” and does not need to wait for a visa to become “current.” Immediate relatives need not still be in status at the time they apply for adjustment of status.
In addition to the application process known as naturalization, the United States recognizes three forms of “automatic” citizenship that require no application: birth, acquisition, and derivation. Any person born in the United States and its territories (except the child of a foreign diplomat) is, at birth, an American citizen, regardless of the status of his or her parents. This includes birth in the 50 states, Puerto Rico, Guam, and the Virgin Islands, and, in some instances (depending on the year of birth), Panama, the Canal Zone, and the Northern Mariana Islands.
For persons born outside of the United States, the rules governing when a child is a citizen or can become a citizen are substantially more complex. The United States recognizes a rule of law known in Latin as jus sanguinis, or “right of blood,” a principle by which citizenship is determined not by place of birth but by one’s birth parents. This is known in immigration law as “acquisition” of citizenship. In order to “acquire” citizenship at birth, at least one parent must be a U.S. citizen at the time of the birth. Different laws of acquisition apply depending on the year of birth: for persons born after November 14, 1986, the current law applies, but persons born prior to that date must refer to the law in existence at the time of birth. Various factors must be considered to determine if a person has acquired citizenship, such as whether one or both parents is a citizen; whether the child was born in or out of wedlock; and whether and for how long did the citizen parent (or parents) physically reside in the United States (and at what ages).
Unlike acquisition of citizenship which occurs at birth, derivation of citizenship occurs after birth. A child can “derive” citizenship automatically in the event that that one parent naturalizes to U.S. citizenship before the child turns 18 years old, provided the child is a lawful permanent resident. Like acquisition, the date of birth dictates the applicable law: in this instance, the current law applies for children born on or after February 27, 2001, but children born earlier must refer to the law in effect at the time of birth. Under the current law, derivation occurs if all of the following requirements are met, regardless of the order in which these events occur: (1) at least one parent is a citizen by birth or naturalization; (2) the child is a lawful permanent resident; (3) the child is under 18 years old and is unmarried; (4) the child is residing in the United States in the legal and physical custody of the citizen parent. For example, if a child immigrates with her parents to the United States as a permanent resident, and, before the child’s 18th birthday, one parent naturalizes, the child is automatically a U.S. citizen by derivation.
Children born abroad who acquired citizenship by birth to a U.S. citizen parent can apply for a Consular Report of Birth Abroad, which must be filed before the child’s 18th birthday. Children who acquire or derive citizenship can apply for a U.S. passport, although the recommended proof is a Certificate of Citizenship A child who does not qualify for derivation or acquisition of citizenship may still apply for naturalization to U.S. citizenship, if eligible.
Citizenship is an extremely valuable status. It is a cornerstone of civilization and social responsibility. Any person born outside of the United States who believes he or she may have a claim to automatic citizenship should consult with an experienced immigration practitioner to determine if citizenship has occurred, and to assist in obtaining proof of citizenship.
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Author's Note: The analysis and suggestions offered in this column do not create a lawyer-client relationship and are not a substitute for the individual legal research and personalized representation that is essential to every case.
Robert L. Reeves is a licensed California attorney and is certified by the California State Bar as an Immigration and Nationality Law Specialist. He has been specializing in immigration law for over 30 years and is admitted to practice before the US Supreme Court, the US Court of Appeals for the Ninth Circuit, several US District Courts and California State Courts. He is the Managing Partner of Reeves & Associates with offices located in Pasadena, San Francisco, Las Vegas and Makati City – Unit 507 Tower One Ayala Triangle, also known as the Philippine Stock Exchange Plaza Makati , 6767 Ayala Avenue, Makati City, Philippines 1226 (corner Paseo de Roxas, beside Ninoy Aquino Monument). Philippine Contact Numbers: 759-6777 or Toll Free: 1-800-10-773-3837E-mail: immigration@rreeves.com Website: www.rreeves.com
