In this article...

In this article we will discuss:

  • What Are The Theories Under Which A Person Can Gain Citizenship At Birth?
  • Birth Inside The US Or One Of Its Territories
  • Birth Abroad To US Citizen Parents

There are several ways that a person may acquire United States (US) citizenship throughout a person’s life. These forms can be grouped in three main ways: at birth, through US citizen parents after birth and by application. In this article we will be discussing citizenship at birth and the various ways that someone may acquire citizenship automatically.  

In this article we will discuss:

  • What Are The Theories Under Which A Person Can Gain Citizenship At Birth?
  • Birth Inside The US Or One Of Its Territories
  • Birth Abroad To US Citizen Parents
  • What Can I Do To Know More?

Acquiring citizenship in the US comes with several rights and privileges, such as being able to live and work in the US and voting in federal and local elections.  

What Are The Theories Under Which A Person Can Gain Citizenship At Birth?

The US follows the jus sanguinis and jus soli legal theories to provide for the automatic acquisition of citizenship at birth. Jus Sanguinis is a concept of ancient Roman law wherein a person derives the citizenship of one or both or their parents. This kind of citizenship is not found in the US Constitution, but it is enshrined in an act of Congress. Meanwhile, Jus Soli establishes that the place of a person’s birth determines their citizenship. This principle is embodied in the 14th amendment to the US Constitution and in various acts of Congress.  

Through both of these principles, there are several ways outlined where a person will gain citizenship at birth through either the land or their parents/ancestry. However, it is important to note that there are a few people who would not gain citizenship while being born inside the territory of the United States. These children are generally born from people who are in the US pursuant to embassy or consular work. U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (Holding that the 14th amendment provides for citizenship for all people born inside the US of whatever race or color, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory[…]). Learn more about Claiming Citizenship by Blood in our article.  

Birth Inside The US Or One Of Its Territories

This section discusses those rights that arise out of the Jus Soli doctrine discussion above. The term ‘United States,’ when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.  

Persons born in American Samoa and Swains Islands are going to be considered nationals and not US citizens. The main difference between a US National and a US Citizen is the right to vote in federal and local elections. US Nationals may only vote in the elections of the commonwealths of their birth.

Despite widespread popular belief, birth in military bases or US consulates will not lead to automatic citizenship at birth. For instance, birth in a U.S.-registered or documented ship on the high seas or in the exclusive economic zone is not considered to be part of the United States. Under the same token, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment for purposes of automatic acquisition of citizenship.  A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth.  

A baby born in either the 12 nautical mile limit of US territory or within US airspace in an aircraft could be considered born within the US for purposes of citizenship at birth. There is technically no government entity that would issue birth records under these circumstances. Upon arrival to the United States, Customs and Border Protection will require documentation of the birth to allow the child inside the country. Part of this documentation would have to be an excerpt of the ship’s/aircraft’s medical log or master/captain’s log, reflecting the time, latitude, and longitude when the birth occurred. The parents would have to subsequently contact the most appropriate state office of vital records to determine the procedures for recording the birth of the child.

The following sections will discuss the acquisition of citizenship under the jus sanguinis doctrine.

Birth Abroad To US Citizen Parents

Persons born abroad who acquire U.S. citizenship at birth by statute generally have the same rights and are subject to the same obligations as citizens born in the United States who acquire citizenship pursuant to the 14th Amendment to the Constitution. Generally, a person is able to acquire US Citizenship at birth if the person has at least one US citizen parent, and that parent meets the physical residence inside the territory of the US requirements in accordance with the pertinent provision of the Immigration and Nationality Act (INA). For instance, under current law, a person is able to give US citizenship to their children born abroad if they were physically present in the US for a total of five (5) years, from which two (2) of these years need to have been after the age of fourteen (14). 8 USC § 1401. In previous editions of the INA it was 10 years, and the ages wherein a person needed to be inside the country would vary. There could be people born outside of the US who might be considered US citizens due to their parents meeting the requirement to impart citizenship.  

However, not everything a US citizen does outside of the US will give rise to automatic citizenship for their children. For instance, adoption of a minor by a U.S. citizen does not, in and of itself, result in U.S. citizenship for the child. Learn more about What Happens if a Child is Born Abroad to a United States Citizen in our article.

A person who was born outside of the US who believes they acquired citizenship at birth does not need to file an application for Certificate of Citizenship (Form N600). However, they do need to submit an application to the embassy or consulate of their country of residence for a Consular Report of Birth Abroad (CRBA) as close as possible to the birth of the child. If this report was not done, a person is still able to seek other formal recognition of their citizenship. They can do this by either filing form N600 if no CRBA was done, or by applying for a US passport at their nearest consular office. The US citizen parent needs to be listed on their birth certificate, and the US citizen parent must be able to show that they lived in the US for the requisite period of time to pass on citizenship to their children.

If you believe you or your family members acquired citizenship at birth and would like to explore your options, please do not hesitate to reach call O’Flaherty Law at 630-324-6666 to speak with one of our experienced immigration attorneys.

May 3, 2021
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