In this article, we answer the question, “If one parent is a U.S. citizen and the other is not, can the child claim U.S. citizenship by blood?”
Naturalization, acquisition, derivation, birthright—these are all methods of obtaining U.S. citizenship, and figuring out which one applies to your situation can be confusing. There are many examples of individuals who begin the process to obtain U.S. citizenship, only to find they are already citizens. Likewise, someone may believe that they are already a U.S. citizen due to birthright, but they’ve lived outside the U.S. their whole life and have “aged out” of the automatic U.S. citizen option for their situation. Still, many more just don’t know, and the recent tightening of the U.S. immigration policy has left some wondering, “I am even eligible for U.S. citizenship?”. This article is not meant to be a detailed guide of the U.S. citizenship process, but rather a summary of how blood relations determine an individual’s eligibility or automatic citizenship.
One of the ways a child of a U.S. citizen may become a citizen himself is by being born to parents that are already citizens. This is known as the acquisition of U.S. citizenship. Whether on U.S. soil or not, if you were born to parents who were U.S. citizens at the time of your birth, you would have automatically gained U.S. citizenship. But what if only one parent was a U.S. citizen? The laws of acquisition become more complex when dealing with factors such as only one parent being a U.S. citizen, being born out of wedlock, if the father was a citizen but there is no evidence to prove legitimacy, etc. In all cases, the U.S. citizen parent must be the genetic or gestational parent and the legal parent under the law of the time and place the child was born for citizenship under acquisition to transfer.
A child born in wedlock to a U.S. citizen and an alien acquires citizenship if the U.S. citizen parent resided in the U.S. or one of its outlying territories for five years before the individual’s birth if born after November 14, 1986, and ten years before the person’s birth if born between December 24, 1952, and November 13th, 1986.
If a child was born out-of-wedlock to two U.S. citizen parents after November 14, 1986, and at least one parent satisfies the “new” Immigration and Nationality Act (INA) criteria and that parent resided in the U.S. or one of its outlying territories for five years prior to the child’s birth, then that child should receive or have received U.S. citizen through acquisition.
If a child was born abroad out-of-wedlock to a U.S. citizen father and an alien mother after November 14th, 1986, and all the following “new” INA criteria are true, then the child is eligible for U.S. citizenship:
The date ranges described above are the same for a child born abroad out-of-wedlock to a U.S. citizen father and alien mother.
If born between December 24th, 1925, and June 11th, 2017 an individual born abroad and out-of-wedlock to a U.S. citizen mother is eligible for U.S. citizenship if the mother lived in the U.S. or one of its outlying territories for at least one continuous year. To be clear, this does not mean the mother had to live in the U.S. for the year immediately before the child’s birth. If on or after June 12th, 2017 the mother must have lived in the U.S. for a period of five years.
If an individual 18 years or older is seeking his U.S. citizenship through blood relation with a current or prior U.S. citizen mother or father, many of the above rules and criteria apply. The primary criteria include:
Naturalization is one way an individual can become a U.S. citizen. To read more about the process check out our article How To Become A U.S. Citizen Through Naturalization. But what happens to the child’s citizenship after the parent naturalizes? In nearly all cases, as long as genetic, gestational, or adoption relation can be proven, the child will automatically become a U.S. citizen. Although, you will still need to pick up the citizenship documentation. If the child is 18 or older, he or she will not automatically derive U.S. citizenship when the parent naturalizes, leaving him or her to acquire citizenship another way.
In any of the above situations, working with a qualified immigration attorney can decrease the likelihood that your application for U.S. citizenship is denied. Sometimes the evidence you will need to gather in order to prove relationship, legitimacy, the period of time living in the U.S., etc, can be substantial. Having an attorney simplifies the process and takes much of the work off your shoulders.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: