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What Happens if a Child is Born Abroad to a United States Citizen?

Updated on
March 19, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we will explain the acquisition of US citizenship for a child born abroad based on the legal situation of the child’s family. 

One of our Youtube viewers asked the question: What happens when a US citizen gives birth in another country? This is a great question and serious concern for families traveling regularly for work or visiting family abroad. Media coverage of changes in US immigration policy under the current administration has also lead to some confusion on this topic and heightened concern. 

Generally, there are five scenarios with regard to a child being born abroad and acquiring a Consular Report of Birth Abroad (CRBA or Form FS-240):

  1. Birth abroad in wedlock to two US citizens
  1. Birth abroad two a US citizen and an Alien
  1. Birth abroad out of wedlock to a US citizen father (New Section 309a)
  1. Birth abroad out of wedlock to a US citizen father (Old Section 309a)
  1. Birth abroad out of wedlock to a US citizen mother

For reference “In Wedlock” refers to a child born to its genetic/ or gestational parents who are legally married at the time of birth or before 300 days of separation of the married parents due to death or divorce. Typically, both parents must also be considered the legal parents of the child at the time of birth under local law.

Birth Abroad in Wedlock to Two US Citizens

This is the most straightforward scenario. A child born in another country in this scenario acquires US citizenship under section 301c of the Immigration and Nationality Act (INA), as long as one of the parents has had a residence within the United States or one of its outlying possessions prior to the birth of the child. 

Birth Abroad in Wedlock Between US citizen and an Alien

In the situation of a child being born outside the country to a US citizen parent and an alien the child will acquire US citizenship if the US citizen parent has been living in the US or one of its outlying possessions prior to the child’s birth for the appropriate period of time under current law (INA 301(g). As of November 14th, 1986 the US citizen parent must have been physically present for five years prior to the birth of the child. Current law also requires at least two of those years be after the age of 14 and based on the birth-date of the child in question. Finally, the US citizen parent must be the genetic or gestational parent and legal parent for the child under the current local law at the time and place of birth for US citizenship to be obtained.

Birth Abroad for Out of Wedlock to US Citizen Father (New Section 309(c)

When a child is born out of wedlock to a US citizen father they are untitled to US citizenship under Section 301(c) or 301(g) of the Immigration and Nationality Act (INA), according to the “new” section 309(a) of the INA if:

  1. A blood relationship can be established between the father and the child in question;
  1. The father was a US citizen at the time of birth
  1. Financial support has been agreed to by the father (unless deceased) for until the child in question has reached the age of 18
  1. When the child in question is under the age of 18:
  • The child is legitimated under the law of his/her residence or domicile;
  • In writing or under oath, the father acknowledges paternity of the child in question
  • Paternity can be demonstrated by appropriate adjudication of a court.

Birth Abroad Out of Wedlock to a US Citizen Father (Old Section 309(a))

The “old” section of 309(a) of the INA applies to any individual who was 18 or older on November 14, 1986 and to those whose paternity had been established under law prior to that date. If the individual in question was at least 15 on November 14, 1986, but under the age of 18 they can have their claim processed under the provisions “old” or “new” Section 309(a). 

Birth Abroad Out of Wedlock to a US Citizen Mother

When a child is born abroad out of wedlock to a US citizen mother on or before June 11th, 2017 that child may acquire citizenship under Section 309(c) of the INA IF the mother was a US citizen at the time of the child’s birth AND if the mother was living in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of the child.

In the case of a child born to out of wedlock to a US citizen mother and alien father on or after June 12th, 2017 the child is entitled to citizenship if the mother was a US citizen at the time of birth and living in the United States or its outlying possessions for a continuous period of five years, or two after the age of fourteen under Section 301(g) of the INA. 

The US citizen mother must the genetic or gestational parent of the child and the legal parent, in all cases, under local law at the time and place of the child’s birth.


What Happens if a Child is Born Abroad to a United States Citizen?
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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