UNCLASSIFIED (U)

8 FAM 301.7

Immigration and Nationality Act of 1952

(CT:CITZ-15;   01-23-2019)
(Office of Origin: CA/PPT/S/A)

8 FAM 301.7-1  Effective Date

(CT:CITZ-1;   06-27-2018)

The Immigration and Nationality Act (INA), as originally enacted, went into effect at 12:01 a.m., Eastern Standard Time, on December 24, 1952.

8 FAM 301.7-2  Citizenship at Birth Abroad Under INA

(CT:CITZ-1;   06-27-2018)

Section 301 INA replaced section 201 Nationality Act of 1940 (NA) on acquisition of citizenship and nationality at birth abroad.  In particular, section 301(a)(7) INA, now section 301(g), replaced section 201(g) NA on acquisition of citizenship by birth abroad to a U.S. citizen parent and an alien parent.

8 FAM 301.7-3  Residence and Physical Presence Requirement

(CT:CITZ-1;   06-27-2018)

The INA specifies that residence or a period of physical presence in the United States is required for transmitting U.S. citizenship on or after December 24, 1952.

8 FAM 301.7-3(A)  Reasons for Requiring Parent's U.S. Physical Presence

(CT:CITZ-1;   06-27-2018)

a. Based on the 1940 Nationality Act's definition of "residence," a person could transmit U.S. citizenship to a foreign-born child after 10 years' "residence" in the United States or its outlying possessions even though that person may have been in the United States or its outlying possessions for only a small part of that time.

b. The substitution of 10 years' "physical presence" (or 5 years for children born on or after November 14, 1986) required by the Immigration and Nationality Act (INA) of 1952 for the 10 years "residence" required by the Nationality Act of 1940 was another attempt to ensure that a foreign-born U.S. citizen would grow up subject to American influences.  With a long period of physical presence, Congress deemed that the U.S. citizen parent would have spent enough time in the United States to absorb American customs and values which, in turn, would be transmitted to the child.

8 FAM 301.7-3(B)  What Constitutes U.S. Physical Presence

(CT:CITZ-15;   01-23-2019)

a. Current practice:

(1)  The INA does not define "physical presence," but the Department interprets it as actual bodily presence.  Any time spent in the United States or its outlying possessions, even without maintaining a U.S. residence, may be counted toward the required physical presence;

(2)  Naturalized citizens may count any time they spent in the United States or its outlying possessions both before and after being naturalized, regardless of their status.  Even citizens who, prior to lawful entry and naturalization, had spent time in the United States illegally can include that time;

(3)  Residents of Canada and Mexico who commute daily to school or work in the United States may count the time they spend in the United States each day toward the requirement.  Conversely, absences, no matter how short, from the United States and its outlying possessions cannot be counted as U.S. physical presence even if a U.S. residence is maintained, unless the proviso of INA 301(g) applies (i.e., the absence is as a result of U.S. military service, employment with the U.S. Government or an international organization as provided therein);

(4)  The Department cannot waive or reduce the required period of physical presence; and

(5)  For methods of computing a person's periods of physical presence in the United States, see 8 FAM 301.7-3(C).

b. What can and cannot be counted as residence or physical presence in the United States or its outlying possessions.  For purposes of INA 301 (8 U.S.C. 1401), the Department holds that:

(1)  Residence or physical presence in the Philippines from April 11, 1899, to July 4, 1946, (when those islands were an outlying possession of the United States) and in other U.S. possessions (except the Canal Zone) before December 24, 1952, can be counted toward the residence or physical presence required under INA 301;

(2)  After December 24, 1952, physical presence in the U.S. territories or possessions named in INA 101(a)(38) (8 U.S.C. 1101(a)(38)) is considered physical presence in the United States or its outlying possessions;

(3)  The U.S. possessions not named are considered as foreign countries for citizenship purposes;

(4)  Effective November 3, 1986, physical presence in the Commonwealth of the Northern Mariana Islands constitutes physical presence in the United States for purposes of INA 301(g);

(5)  Time spent on ships located within U.S. internal waters can be counted as physical presence in the United States.  There is a legal question as to whether time spent in waters within the 3-mile limit of the U.S. territorial sea can be counted as U.S. physical presence.  Cases in which this issue arises should be referred to Passport Services Office of Legal Affairs and Law Enforcement Liaison (CA/PPT/S/L) (AskPPTLegal@state.gov);

(6)  Time spent on a U.S.-registered ship outside U.S. territorial waters cannot be counted as physical presence in the United States (INA 330 (8 U.S.C. 1441) permits time spent on U.S.-registered ships to count as U.S. residence or physical presence for purposes of naturalization but not for other purposes); and that;

(7)  Time spent on voyages defined as "coastal" by the Coast Guard (which maintains records of U.S. seamen's voyages) is open to legal interpretation.  "Coastal" voyages are those between ports in the same State or adjacent States, which usually do not go outside the 3-mile limit of the territorial sea.  Cases in which this issue arises should be referred to CA/PPT/S/L (AskPPTLegal@state.gov)Time spent on voyages defined by the Coast Guard as "foreign" or "coastwise" (those from one U.S. port to another in a non-adjacent State in which the vessel travels outside U.S. territorial waters) are not considered physical presence in the United States.

c.  Employment Qualifying as Physical Presence in the United States:

(1)  Since 1966, many questions have arisen about the proper interpretation of various parts of the proviso of INA 301(g).  Any cases in which a previous decision appears to conflict with this guidance may be referred to CA/PPT/S/L (AskPPTLegal@state.gov) for review; and

(2)  Residence abroad in any capacity mentioned in the proviso can count toward and even completely satisfy the required period of physical presence in the United States.  A citizen who has never been in the United States may therefore transmit citizenship if the citizen has met the physical presence requirement as a result of operation of the proviso.

d. Interpretation of "Periods of Honorable Service in the Armed Forces of the United States":

(1)  The phrase "any periods of honorable service in the Armed Forces of the United States," includes all periods of honorable Foreign Service in the U.S. Armed Forces from the date of enlistment, whether the enlistment occurred in the United States or abroad;

(2)  A naturalized U.S. citizen who, as an alien, served honorably abroad in the U.S. Armed Forces may count the overseas service as physical presence in the United States for purposes of transmitting citizenship;

(3)  The Department and Department of Homeland Security's U.S. Citizenship and Immigration Services (USCIS) hold that members of Reserve components of the U.S. Armed Forces may count as U.S. physical presence all time served abroad on active duty, except for training, provided the service was honorable.  Non-duty periods of foreign residence or travel while in the Reserves do not qualify (5 U.S.C. 2105(d)).  Other members of uniformed services are considered U.S. government employees pursuant to 5 U.S.C. 2105(a);

(4)  Only periods of honorable U.S. military service abroad count as periods of physical presence in the United States.  However, some persons who have received other than honorable discharges may have some periods of honorable service that can be confirmed by the military authorities; and

(5)  In 1977, the General Counsel, Selective Service System, informed the Department that alternate service performed by conscientious objectors is not considered military service or employment by the U.S. government.  Such persons receive no pay from the U.S. government, receive no U.S. government compensation if injured on the job, and are not entitled to veterans' benefits.

e. Interpretation of "Employment with the United States Government":

(1)  In considering what constitutes "employment with the United States Government", the Department takes into account 5 U.S.C. 2105 and other sections of the U.S. Code and the Code of Federal Regulations that define the status of certain types of personnel.  Factors to consider are whether:

(a)  The person occupies an allocated position;

(b)  The person's name appears on the payroll of a Department or agency;

(c)  The person has a security clearance or took an oath of office; and

(d)  The U.S. government has the right to hire and fire the person and to control the input and the end result of the employee's work.

NOTE:  Qualifying U.S. government employment abroad is not determined by the type of passport which someone bears (see 8 FAM 101.3 regarding types of passports).

(2)  Persons who work abroad for non-appropriated fund instrumentalities (such as post exchanges, Stars and Stripes, and the Armed Forces Radio and Television Network) are U.S. Government employees for the purposes of INA 301(g).  Pursuant to 5 U.S.C. 2105(c), they are Federal employees for all purposes except those specifically stated;

(3)  There is no requirement that an employee must have been sent abroad by the U.S. government in order to have the time spent abroad in U.S. government service count as physical presence in the United States.  Persons employed abroad under local hire by the U.S. government can count such periods of employment toward the physical presence required by INA 301(g);

(4)  Peace Corps:

(a)  Peace Corps volunteers are not U.S. government employees for the purposes of INA 301(g).  Pursuant to section 5(a) of the Peace Corps Act (22 U.S.C. 2504(a)), they are not federal employees except for limited purposes specified in the Peace Corps Act.; and

(b)  Peace Corps personnel, other than volunteers, who are members of the Civil Service or Foreign Service can count time spent abroad on official assignments that entitled them to official or diplomatic passports (see 8 FAM 503.3 regarding eligibility for official or diplomatic passports).

(5)  Contract employment and grants:

(a)  A person employed by a company that has accepted a U.S. government contract to undertake a certain project abroad is not a U.S. government employee.  Such a person cannot count as U.S. physical presence any time spent abroad working on the project; and

(b)  A person working at a foreign university on a grant administered by the Department is not a U.S. government employee for the purposes of INA 301(g).

f.  Interpretation of "Employment....With an International Organization as That Term Is Defined in ...22 U.S.C. 288":

(1)  See 8 FAM 102.5-2 for a list of the organizations designated by Executive Orders, on the dates shown, as public international organizations pursuant to 22 U.S.C. 288.  If the designation has been revoked, information about the revocation has been included.  Employment abroad with any of the listed organizations while the designation was in effect may be counted as physical presence in the United States.  However, some of the organizations listed may have ceased to exist (without having their demise noted) by revocation of the Executive Order designating them as international organizations. You should confirm the existence of the organization during the pertinent time period with the Department; and

(2)  Missionary groups or commercial ventures do not qualify as international organizations.  Service abroad by personnel of such groups cannot be counted as physical presence in the United States.

g. Interpretation of "Dependent Unmarried Son or Daughter and a Member of the Household":

(1)  A U.S. citizen son or daughter of any parent whose employment abroad with the U.S. Armed Forces, the U.S. government, or a designated international organization qualifies as physical presence in the United States may count as physical presence in the United States any time spent abroad with such parent during the parent's employment as long as the son or daughter was an unmarried, dependent member of the parent's household.  Whether the parent was a U.S. citizen, non-citizen U.S. national, or an alien at the time of employment is immaterial;

(2)  "Dependent," as used in INA 301(g), means relying on one's parents for more than half of one's support.  If the supporting parent dies during a foreign assignment, the status as a dependent ceases; thus foreign residence after the parent's death cannot be counted as physical presence in the United States;

(3)  "Unmarried" means single, divorced, or widowed;

(4)  "Son or daughter" includes, regardless of age a(an):

(a)  Legitimate son or daughter;

(b)  Legitimated son or daughter (from the date of legitimation);

(c)  Adopted son or daughter (from the date of adoption);

(d)  Stepson or stepdaughter;

(e)  Biological son or daughter of a woman engaged in employment of the type specified in INA 301(g); or

(f)   Biological son or daughter of a man who has acknowledged paternity of the son or daughter.

NOTE:  Use of the words "son or daughter" does not imply an age limit as does the use of the term "child" (defined in INA 101(c)(1)).  A person who, at any age, was the dependent, unmarried, son or daughter and a member of the household of someone abroad in qualifying military or civilian employment may count as physical presence in the United States any time during which the person maintained that status.

(5)  "Member of the Household":

(a)  Generally, "a member of the household" of a person in qualifying employment abroad would live with that person, but in some situations the Department has considered sons or daughters living elsewhere to be members of the parents' household.  These situations occur most often when the parent accepts an unaccompanied tour abroad or the child attends school in another foreign country during a parent's tour of duty abroad and is away from home for most, if not all, of the year;

(b)  A person whose parents maintained separate foreign residences for convenience or necessity but were not estranged can count as physical presence in the United States time during which that person lived at either of those residences while the qualifying parent was employed within the scope of INA 301(g);

(c)  If the parents are estranged or divorced and the parent engaged in qualifying employment has physical custody of a child, the child may count the time spent abroad during the parent's official assignment if all conditions of the proviso have been met; and

(d)  Periods of visitation with a noncustodial qualifying parent can be counted as time spent in the United States if, during the visit, the child is unmarried and dependent on the qualifying parent.  The same considerations apply if the parent being visited is the spouse of a person engaged in qualifying employment.

8 FAM 301.7-3(C)  Method of Counting Physical Presence

(CT:CITZ-1;   06-27-2018)

a. Only time actually spent in the United States, in its outlying possessions, the Commonwealth of the Northern Mariana Islands on or after November 3, 1986, or abroad for reasons within the scope of INA 301(g) may be counted toward the physical presence required to transmit U.S. citizenship.  For children born prior to November 14, 1986, the transmitting parent's physical presence must total 10 years, at least 5 of which were after reaching age 14.  For children born on or after November 14, 1986, the transmitting parent must have 5 years' physical presence, at least 2 of which were after age 14.  Illustrative examples discussed below are for the 5-year requirement.  The same principles, however, apply to the 10-year requirement in effect before November 14, 1986.

b. Usually, it is not necessary to compute U.S. physical presence down to the minute.  For example, a parent who was in the United States from 1970 to 1988 has met the current transmission requirements even if the exact months, days, or hours are unknown.  It would appear that a person who was in the United States from 1970 to 1986 would also be qualified to transmit citizenship to a foreign-born child; however, if the transmitting parent was born on December 31, 1970, and left the United States on January 1, 1986, that person would be missing almost 1 year of the required 2 years of physical presence after age 14.

c.  If it is not clear that the parent has more than enough physical presence in the United States, it is important to obtain the exact dates of the parent's entries and departures.  Expired passports showing entries into or departures from the United States and other countries, school and employment records, tax withholding statements, and other such documents may be helpful in establishing periods of U.S. physical presence.  In some cases, it is important to know the number of hours a parent spent in the United States on a particular day.  For example, a U.S.-citizen resident of Mexico or Canada who commuted to the United States each day to work would be credited not with a whole day in the United States but only with the number of hours actually spent in the United States.

d. It is possible to come to several equally valid conclusions about the amount of time between two dates.  The Department favors the simplest approach and considers that a calendar year is a year whether it has 365 or 366 days and a calendar month is a month regardless of whether it has 28, 29, 30, or 31 days.  Using the period of time, September 10, 1987, to July 28, 1991, the Department considers that from September 10, 1987, to the same time in 1990 is 3 full years.  From September 10, 1990, to July 10, 1991, is 10 full months. From a certain time on July 10 to the same time on July 28 is 18 days but, depending on exactly when the person left the United States, it might be slightly more or less.  Unless times of entry and departure are known, the Department credits the person with 18 days for that period of time.  The period of time, February 18, 1991-March 5, 1991, totals 16 days because February had 29 days in that year.

e. The totals of 3 years, 10 months, and 18 days for the first period of time and 16 days for the second would be added to other periods of physical presence.  The initial total might look something like this:  6 years, 45 months, 172 days.  By dividing the number of months by 12 and the number of days by 30, one arrives at a total of 10 years, 2 months, and 22 days.  If at least 2 of these years were after the parent's 14th birthday in a given case, the parent would be able to transmit U.S. citizenship to a child born abroad on or after November 14, 1986.  If the total number of days is more than 365, the first step should be to divide the number by 365, because a more accurate final figure will be obtained.

8 FAM 301.7-4  Children Born On or After December 24, 1952

(CT:CITZ-1;   06-27-2018)

The following table is a reference tool to help you locate the appropriate guidance.  In addition, 8 FAM 301.7-4(A) provides guidance on determining how to apply INA 309:

Parents' Citizenship/Nationality

Birth in wedlock or of wedlock

Birth out of wedlock

Two U.S. Citizen Parents

8 FAM 301.7-4(B)

8 FAM 301.7-4(E)(1)

U.S. Citizen Parent and Non-Citizen U.S. National Parent

8 FAM 301.7-4(C)

8 FAM 301.7-4(E)(2)

U.S. Citizen Parent and Alien Parent

8 FAM 301.7-4(D)

8 FAM 301-7-4(E)(3)

8 FAM 301.7-4(A)  INA 309 (Old and New)

(CT:CITZ-15;   01-23-2019)

Physical presence in the United States counts for purposes of citizenship acquisition under INA 301 or INA 309, regardless of whether it was pursuant to a legal admission.  Congress did not specify "lawful" physical presence in INA 301 or INA 309, as it did in other parts of the INA.  For example, in INA 320, the Child Citizenship Act of 2000, a child must have entered the United States pursuant to a lawful admission for permanent residence in order to acquire U.S. citizenship.  Absent this type of statutory qualification, we cannot insist on counting only legal physical presence in the United States for purposes of being eligible to transmit citizenship under INA 301 or INA 309.

8 FAM 301.7-4(B)  Birth in Wedlock or of Wedlock to Two U.S. Citizen Parents

(CT:CITZ-1;   06-27-2018)

a. The content of INA 301(c) (formerly INA 301(a)(3)) is virtually identical to that of section 201(c) NA, which it replaced.

b. A child born abroad to two U.S. citizens acquires U.S. citizenship at birth if, before the child's birth, one of the parents had a residence in the United States or its outlying possessions.  No specific period of residence is required.

c.  The concept of residence is inherently more complex than the more literal concept of physical presence.  While no specific period of residence is mentioned in the statute, Congress' use of the term "residence" requires a close examination, on a case by case basis, of the facts related to one's stay in the United States to determine if it falls within the INA's definition of "residence."

d. Residence is not determined solely by the length of time one spends in a place, but also takes into account the nature and quality of the person's connection to the place.  This is a very fact-specific test.  However, at all times and in all cases, residence involves the connection to a specific physical place.  Residence is not a state of mind that travels with a person.  Department guidance clearly states that residence is more than a temporary presence and that visits to the United States are insufficient to establish residency for the purposes of citizenship transmission under INA 301(c).

e. INA 101(a)(33) defines residence as the person's "place of general abode [meaning] his principal actual dwelling place in fact, without regard to intent."  Under this definition, residence is much more than an address--e.g., a Post Office box is not a place of general abode or a dwelling place--it is one's principal, actual dwelling place.  A person has a different relationship to her/his residence than to any other place.  For example, someone who rents a vacation home in California for a month in the summer has not established a "principal, actual dwelling place," as that term is used in INA 101(a)(33).  Similarly, someone who resides along the border in Mexico or Canada, but works each day in the United States cannot use his or her workplace to establish a residence.  In both examples, however, the person could establish physical presence.  Some examples of what constitutes a "residence" versus "physical presence" are described below.

f.  Owning or renting property in the United States is not a pre-condition for proving a residence.  Similarly, owning or renting property outside of the United States is not necessarily incompatible with having a residence in the United States.  Where a person owns or rents property is certainly relevant information that could help a consular officer make a determination of whether a person has or has not had a residence in a particular place, but other evidence is important as well--e.g., evidence that shows that the person actually lived in that property and conducted normal daily activities of life there.  In other words, evidence that shows it is one's principal, actual dwelling place.

g. Birth in the United States is usually sufficient to satisfy the residence requirement of INA 301(c).  For example, if a person is born abroad in wedlock to two U.S. citizen parents, and one parent was born in the United States, that U.S. citizen parent will meet the "residence" requirement as long as evidence is presented that demonstrates that the parent's mother was not merely transiting through the United States at the time of that parent's birth.  A long form birth certificate usually includes the mother's address, which normally suffices to show that the mother was not transiting through the United States.

h. While the definition of residence is not dependent on a specific time period in the United States, the longer the duration of a person's stay in a particular place in the United States (e.g., six months or more), the more likely it is that that place can be characterized as the person's residence.  On the other hand, if the stay at a place in the United States was relatively brief (e.g., a few months or less), then in order for that place to be considered a "residence" additional evidence may be required to show why the stay, though brief, was other than a temporary visit.

i.  The concept of "residence" should not be confused with the term "physical presence" which is used elsewhere in the INA as the test for transmitting citizenship, and which is a more literal concept that may be easier to apply.  INA 301(g), for example, requires that when only one parent is a U.S. citizen, that citizen parent must have a specific duration of physical presence -- not residence--in the United States prior to the birth of the child in order to transmit U.S. citizenship to the child.  Unlike in INA 301(g), in INA 301(c), Congress chose to use the term "residence," and not set a time requirement.  The rationale being that the nature of a residence presupposes the sort of relationship to a place that mere physical presence does not.

j.  One important distinction between "physical presence" and a "residence" is the way that we consider the time spent in the United States in evaluating whether the terms are met.  The time spent in a "residence" is time spent in that one particular place, not time spent in the United States overall.  On the other hand, when computing "physical presence," we consider any time a person has spent anywhere in the United States to count towards "physical presence."  Thus, if a person spent a year traveling around the United States on a cross-country tour, and slept in a different hotel every week for a year, we would find that he was physically present in the United States for a year, but we could not find that he had a residence in the United States unless there was other evidence that supported the conclusion that one of the places where the person spent time was that person's "principal, actual dwelling place."  The United States is not a person's dwelling place.

k. Examples of documents that can help demonstrate a residence include, but are not limited to, a combination of some of the following:

(1)  Property rental leases and payment receipts;

(2)  Deeds;

(3)  Utility bills;

(4)  Property tax records;

(5)  Automobile registrations;

(6)  Professional licenses;

(7)  Employment records or information;

(8)  Income tax records;

(9)  Stamped school transcripts;

(10) Military records;

(11) Income records, including W-2 salary forms; and

(12) Vaccination and medical records.

l.  In general, for overseas adjudication, the parent whose residence is being used to transmit citizenship to the child must be personally present at the U.S. Embassy or Consulate with his or her documentation for an interview by a consular officer:

EXAMPLES

Person A lives in Israel and traveled to the United States for six weeks during his summer vacation in 2000.  He stayed at his cousin's house in New York for two weeks to attend a family wedding, then he went to his parent's house for two weeks to celebrate their anniversary, and then he went to Florida for two weeks to go to Disneyworld.  This person does not have a residence in the United States, but he has accumulated six weeks of physical presence in the United States.

 

Person B lives in France.  Person B was a high school exchange student who lived with the Peterson family in Michigan from August 30, 1989 to January 3, 1990.  During that time, the Peterson family moved from a house on Elm Drive to one in a nicer neighborhood on Pine Street.  Person B attended East Michigan High School for the entire fall semester.  Person B did have a "residence" for purposes of INA 301(c) because each of the Peterson's houses was her principal, actual dwelling place at the time.  She also accumulated over four months of physical presence in the United States.

 

Person C lives in Mexico, but has a job as a doctor at a hospital in Texas.  He owns a house with his spouse in Mexico and his three children go to school in Mexico.  When Person C is on call, he will spend the night at his cousin's house in Texas.  Averaged over a year, Person C spent seven months in the United States -- either at work, at his cousin's house, or visiting friends and work colleagues.  Person C does not have a residence in the United States, but he has accumulated seven months of physical presence in the United States.

 

Person D was born and raised in Israel.  He acquired U.S. citizenship at birth because he was born in wedlock to married U.S. citizens and his mother had a residence in the United States before his birth.  Person D, who is now 30 years old, has lived in Israel all of his life, but from the time that Person D was eight years old until he graduated from high school, Person D went to summer camp in upstate New York.  He would usually arrive in June and would return to his home in Israel in August.  Person D did not have a residence in the United States, but the time spent in the United States during those summers, plus any other trips he had taken subsequently, would count as physical presence in the United States.

8 FAM 301.7-4(C)  Birth in Wedlock or of Wedlock to a U.S. Citizen Parent and a Non-Citizen U.S. National Parent

(CT:CITZ-1;   06-27-2018)

To transmit U.S. citizenship to a child born abroad under INA 301(d) (8 U.S.C. 1401(d)) (formerly INA 301(a)(4)), a U.S. citizen parent married to a non-citizen U.S. national (a person owing permanent allegiance to the United States who is neither a U.S. citizen nor an alien) must have been in the United States or an outlying possession for a continuous period of 1 year at any time before the child's birth.  Any absence, even for U.S. military service, breaks the continuity of the period of physical presence.

NOTE:  The individual may not opt for non-citizen U.S. national status.  A person cannot be both a U.S. citizen and non-citizen U.S. national.  Non-citizen U.S. nationality under INA 308 is only acquired when there is no U.S. citizen parent.

8 FAM 301.7-4(D)  Birth in Wedlock or of Wedlock to a U.S. Citizen Parent and an Alien Parent

(CT:CITZ-1;   06-27-2018)

Unlike INA 301(d), INA 301(g) (formerly INA 301(a)(7)) does not require a continuity of stay.  However, on the whole, its requirements for transmitting U.S. citizenship to the foreign-born child of a U.S. citizen and an alien are much more stringent:

(1)  For children born prior to November 14, 1986, the U.S. citizen parent must have had ten years of physical presence, five of which were after reaching age 14, in the United States or its outlying possessions; and

(2)  For children born on or after November 14, 1986, to transmit citizenship the U.S. citizen parent needs five years of physical presence, two of which were after age 14, in the United States or one of its possessions.

8 FAM 301.7-4(E)  Birth Out of Wedlock

8 FAM 301.7-4(E)(1)  Birth Out of Wedlock to Two U.S. Citizen Parents

(CT:CITZ-1;   06-27-2018)

A child born abroad out of wedlock to a U.S. citizen father and a U.S. citizen mother acquires U.S. citizenship at birth if the U.S. citizen father first meets the four requirements of INA 309(a) after which, by the terms of 309(a), the provisions of INA 301(c) apply, and either U.S. citizen parent must establish that he/she has had a residence in the United States prior to the child's birth (see 8 FAM 301.7-4(B) regarding residence).  If the individual cannot show that the U.S. citizen father meets the requirements of 309(a), but a claim can be made through the mother under INA 309(c) you should adjudicate the claim in accordance with 8 FAM 301.7-4(E)(3) if the child was born before June 11, 2017, but if the child was born on or after June 12, 2017, please refer to AskPPTAdjudication@state.gov.

8 FAM 301.7-4(E)(2)  Birth Out of Wedlock to a U.S. Citizen Parent and a Non-Citizen U.S. National Parent

(CT:CITZ-1;   06-27-2018

The guidance on acquisition of U.S. citizenship under INA 301(d) for birth out of wedlock to a U.S. citizen parent and a non-citizen U.S. national is the same as for birth in wedlock (see 8 FAM 301.7-4(D)), if the father meets the requirements of INA 309(a) (see 8 FAM 301.7-4(E)(3)) and is the transmitting parent.  If the mother is the transmitting parent, the claim is through INA 309(c), which also requires one year of continuous physical presence.

NOTE:  The individual may not opt for non-citizen U.S. national status.  A person cannot be both a U.S. citizen and non-citizen U.S. national.  Non-citizen U.S. nationality under INA 308 is only acquired when there is no U.S. citizen parent.

8 FAM 301.7-4(E)(3)  Birth Out of Wedlock to a U.S. Citizen Parent and an Alien Parent

(CT:CITZ-1;   06-27-2018)

a. Birth out of wedlock to a U.S. citizen father:

(1)  Whether to apply old or new INA 309(a):

(a)  “New” INA 309(a) (8 U.S.C. 1409(a)) applies to all persons born on or after November 14, 1986, its effective date, and, by virtue of section 23(e) of the INAA of 1986 (Public Law 99-653), to persons who had not attained age 18 as of November 14, 1986, except those who had previously been legitimated, to whom “old” INA 309 applies.  (Persons born after November 14, 1968, had not attained the age of 18 when the "new" INA 309(a) came into effect.);

(b)  “Old” INA 309(a) applies to persons who had attained age 18 as of November 14, 1986 and to any persons whose paternity was established by legitimation prior to that date.  (Persons born on or before November 14, 1968, had attained age 18 when the "new" INA 309(a) came into effect.); and

(c)  Either "old" or "new" INA 309(a) can be applied to persons who were at least 15 but under the age of 18 on November 14, 1986.  These individuals may elect to have the "old" INA 309(a) apply instead of the "new" INA 309(a) if that law is simpler for them or more beneficial to them.  (Persons born after November 14, 1968 but on or before November 14, 1971 are in this category.)

b. Establishing citizenship under “New” INA 309(a).  In adjudicating claims of persons to whom "new" INA 309(a) applies, you must adhere to the following guidance:

(1)  No blood test or any other specific type of evidence is required by the INA 309(a) (see 8 FAM 301.4-1(D) and 8 FAM 304.2).  However, you must:

(a)  Determine whether the evidence meets the “clear and convincing” standard in each case;

(b)  Be satisfied by the clear and convincing evidence that a blood relationship exists between the individual and the alleged U.S. citizen father; and

(c)  Have a firm belief in the truth of the facts asserted based on the evidence, but you do not need to reach the level of certainty required for proof beyond a reasonable doubt.

(2)  The evidence must show that the father was a U.S. citizen when the child was born;

(3)  Father's statement of support:

(a)  A statement of financial support is required except when the father is deceased.  A father who refuses to sign a statement of support prevents his child from acquiring U.S. citizenship.  A child who cannot present a written support agreement by the father cannot be documented as a U.S. citizen unless it is proven that the father is dead.  This is true even if the father cannot be located; unless dead, the father must be located and comply with the requirements of INA 309(a), as amended, before the child's 18th birthday;

(b)  Since INA 309(a) specifies that the father must agree in writing to support the child, a local law obliging fathers to support children born out of wedlock is not sufficient to meet the requirement;

(c)  Form DS-5507 "Affidavit of Parentage, Physical Presence, and Support," contains a statement of support which satisfies the requirements of "new" INA 309(a).  The statement may be in any form, however, as long as it complies with the following:

(i)     It must include an agreement to provide financial support;

(ii)    It must specify that such support will continue until the child's 18th birthday;

(iii)    It must be in writing;

(iv)   It must be signed by the father under oath or affirmation before a consular officer or before any other U.S. or foreign official authorized to register births or administer oaths; and

(v)    It must be dated before the child's 18th birthday.  It may be dated any time prior to that date, including prior to November 14, 1986.

(d)  The statement of support is not required when the father is deceased.  The individual has the burden of proving the father's death, and should provide a death certificate or other acceptable evidence of the father's death;

(e)  If the father signs a statement of support and subsequently fails to support the child, the child's U.S. citizenship is not taken away.  The Department has no authority to obtain support payments from fathers or otherwise to enforce the support agreement executed pursuant to INA 309(a).  This does not mean, however, that it could not be enforced by the child against the father, or pursuant to laws administered by other government entities.

(4)  "New" INA 309(a) provides for three alternatives: legitimation under the laws of the residence or domicile; acknowledgement of paternity under oath; and court adjudication of paternity (see following paragraphs).  Any of the three actions is sufficient, as long as the action occurs while the child is under the age of 18:

(a)  Legitimation:

(i)     “New” INA 309(a) provides for legitimation by the father as an alternative means of establishing legal relationship.  (Under “old” INA 309(a), it is/was the only method authorized).  If the child was legitimated while under the age of eighteen, by affirmative act or by operation of law under the child's residence or domicile on or after November 14, 1986, he or she need only submit the statement of support, unless such a statement was part of the legitimating act and evidence to that effect is submitted;

(ii)    Legitimation is the giving, to a child born out of wedlock, the legal status of a child born in wedlock, who traditionally has been called a “legitimate” child.  Thus, legitimacy is a legal status in which the rights and obligations of a child born out of wedlock are identical to those of a child born in wedlock.  This status is generally relevant primarily to the rights of the child vis-a-vis its natural father.  Many foreign countries may not use the term "illegitimate", but nonetheless recognize that a child born in wedlock has greater rights than a child born out of wedlock, for instance under local inheritance laws.  The out of wedlock child in such countries is not legitimated within the meaning of "new" INA 309(a);

(iii)    “New” INA 309(a) requires that legitimation occur under the laws of the residence or domicile of the child, not the father.  (As discussed in the following sections, under "old" INA 309(a), it may be the laws of the residence or domicile of either the father or the child.);

(iv)   The Department's interpretation of foreign and domestic legitimation laws is available on the CAWeb in the Foreign Legitimation Law Chart and U.S. Legitimation Law Chart on the CAWeb.  If the country or time period in question is not covered by these charts, you should contact Passport Services' Office of Adjudication (CA/PPT/S/A) at AskPPTAdjudication@state.gov so that the chart can be updated and obtain the father's statement of support and acknowledgement rather than expend resources in attempting to determine whether legitimation occurred;

(v)    Legitimation is best used to establish relationship only in cases where the legitimating act has already taken place and evidence is readily available.  Do not inconvenience individuals by requiring them to submit extensive evidence of legitimation or expend resources to research or interpret foreign legitimation laws.  Encourage the use of the simpler alternative of acknowledgement of paternity;

(vi)   You must be satisfied in cases of previous legitimation that the child was resident or domiciled in the country where the legitimating act occurred.  In most cases, a child's residence is the same as its domicile, and both usually coincide with those of the parents.  You should question the child and parents regarding residence and domicile in the same manner as for legitimation under "old" INA 309(a); and

(vii)   Legitimation may occur by automatic operation of law at birth, by some affirmative act of the father (for instance, marrying the mother), or by court order.  Although the legitimation status goes back to birth, it is the date of the legitimating act which must be considered in a citizenship claim.

(b)  Acknowledgement of paternity:

(i)     Acknowledgement of paternity is the simplest means of establishing legal relationship under the "new" INA 309(a) and should be used in most cases.  It may have occurred either before or after November 14, 1986, as long as it was done while the child was under age 18;

(ii)    Acknowledgement may be made under oath or affirmation in any form before a consular officer or other official authorized to administer oaths.  An acknowledgement made by the father on the child's birth certificate or otherwise under foreign procedures is acceptable if it was under oath or affirmation; and

(iii)    Fathers of children not already legitimated, acknowledged, or subject to court decrees of paternity may execute an acknowledgement and the statement of support in the same instrument for the sake of simplicity, provided the child is under 18 at the time the joint document is signed.  Form DS-5507 may be used for this purpose.

(c)  Court adjudication of paternity:

(i)     Establishment of legal relationship by the alternative of court adjudication of paternity will be extremely rare.  It need not be pursued unless the father is unable or unwilling to acknowledge the child;

(ii)    Such adjudication must have occurred before the child reached age 18.  It is irrelevant whether it was before or after November 14, 1986; and

(iii)    Fathers of children who are already the subject of such adjudications need only submit the statement of support (unless it was previously presented in the court proceeding and evidence to that effect is submitted). You should presume that the court had jurisdiction over the case.  You should keep in mind that court paternity decrees only establish a legal relationship, not a blood relationship.  Individuals presenting paternity decrees must still present evidence of a blood relationship as required by INA 309(a).  If there is evidence which draws into question a court's findings, you should not accept the court order as establishing a legal relationship (paternity) between the father and child without consulting CA/PPT/S/L (AskPPTLegal@state.gov).

c.  Establishing Citizenship Under “Old” INA 309(a):  When adjudicating cases under old INA 309(a), you must adhere to the following guidance:

(1)  You must be satisfied that a blood relationship exists between the child and the U.S. citizen father.  Absent such a relationship, the child of an alien mother cannot acquire U.S. citizenship at birth (see 7 FAM 1131.4).

(2)  Legitimation:

(a)  Under "old" INA 309(a), the place of legitimation was not specified.  "Old" INA 309(a) was applied to permit legitimation to take place pursuant to laws of the U.S. or foreign residence or domicile of the father or child.  You should determine which foreign countries or states of the United States qualify as either the father's residence or domicile or the child's residence or domicile for purposes of establishing legitimation;

(b)  The INA defines "residence" as the place of general abode of a person; his principal, actual dwelling place in fact, without regard to intent;

(c)  "Domicile" is generally defined as the place of a person's true, fixed, and permanent home or ties, and to which whenever absent, the person intends to return; and

(d)  In attempting to determine residence or domicile, you may ask such questions as:  Where did you own property?  Where did you pay taxes?  Where were you registered to vote?  Where have you had bank accounts?  What State issued you a driver's license or other license?  What ties do you have to the place of residence or domicile?

(3)  You should determine whether the child's father and mother have ever been married to each other.  A valid intermarriage of a child's natural parents subsequent to a child's birth serves to legitimate a child in most jurisdictions.  The validity of a marriage is governed by the law of the place where it was performed and may be a determining issue in a child's claim to citizenship under INA 309(a).  A marriage that is void or voidable may also serve to legitimate a child in some circumstances, particularly if the child was born after the marriage:

(a)  If the laws of the state or the country where the father or the child resided or were domiciled provide for legitimation by subsequent marriage, those laws may be applied if there was a valid marriage of the parents while the child was under 21.  In general, the place of marriage and the place of residence or domicile must be the same.  There are exceptions to this general rule, however, and you may find it necessary to submit questions of this nature to CA/PPT/S/L (AskPPTLegal@state.gov);

(b)  Voidable and void marriages:

(i)     A marriage that did not conform to the laws of the country or state in which it was performed may be a void marriage, but only after declared so by an appropriate authority, usually a court in the jurisdiction where the marriage occurred.  Prior to such judicial declaration, the marriage may be considered voidable.  A voidable marriage is considered valid for all purposes unless and until annulled or voided by the court.  Even after a marriage is voided, there is every likelihood that the children's status will not be affected.  Every state in the United States, for example, considers children of a void marriage to be legitimate;

(ii)    Posts should have available a copy of the consular district's local laws on marriage.  If for any reason a marriage does not appear to have been valid and legitimation is a determining factor in the citizenship claim, consular officers may need to consult local law, if a U.S. domicile cannot be identified, to determine if children born of a void marriage are considered legitimate.  If they would not be considered legitimate, the consular officer must determine that the marriage was, in fact, declared void by an appropriate authority before denying the claim.  A post that is considering a case involving legitimation in a third country may seek information on the laws of that country from the embassy of that country or from the U.S. embassy in that country.; and

(iii)    A law that legitimates a child born during a void marriage presumes that the marriage ceremony took place before the child's birth unless the law specifically mentions children born before the marriage.  Cases that involve void marriages that occurred after a child's birth should be referred to the CA/PPT/S/L (AskPPTLegal@state.gov).

(c)  Absence of a marriage:

(i)     If no marriage has occurred between the child's U.S. citizen father and the child's natural mother, after determining the appropriate domicile or residence, you should consult the applicable U.S. or foreign laws to learn whether the child was legitimated by other means.  In most countries or states where legitimation is possible without subsequent intermarriage of the biological parents, certain conditions must be met (such as formal acknowledgment of the child by the father, acceptance into the father's household, consent of the father's wife);

(ii)    Some states and countries grant all children equal rights, regardless of the parent's marital status. In such cases, the child may be considered to have established paternity by legitimation under "old" INA 309(a) if the blood relationship between the father and child was established before the child's 21st birthday, and the law concerning the equality of all children was in effect before the child's 21st birthday; and

(iii)    Some states and countries do not provide any specific way for fathers to legitimate their children.  Persons born out of wedlock who had to rely on the legitimation laws of those places could not acquire U.S. citizenship through their fathers if they were age 18 prior to the 1986 amendment of INA 309(a).

(4)  Adoption by biological father:

(a)  If a father adopts his biological child while the child is under age 21, the Department regards the child as legitimated for purposes of old INA 309(a) regardless of the law of the father or child’s residence or domicile; and

(b)  Before any documents are issued, cases that involve adoption by the biological parent should be referred to CA/PPT/S/L (AskPPTLegal@state.gov).

(5)  Father's physical presence requirements:

(a)  For children born prior to November 14, 1986, the U.S. citizen father is subject to the original requirements of INA 301(g) to transmit citizenship to the child.  Thus, he must show that he was physically present in the United States prior to the birth of the child for 10 years, at least 5 of which were after reaching the age of 14;

(b)  For children born on or after November 14, 1986, the most recent physical presence requirements of INA 301(g) apply.  In this instance, the U.S. citizen father must show that he was physically present in the United States prior to the birth of the child for 5 years, at least 2 of which were after reaching the age of 14; and

(c)  For children acquiring citizenship under the old INA 309(a), the U.S. citizen father must show that he was physically present in the United States prior to the birth of the child for 10 years, at least 5 of which were after the age of 14.

d. Claims under INA 309(c):

(1)  A child born abroad out of wedlock on or after December 24, 1952, to a U.S. citizen mother acquires U.S. citizenship if the mother was physically present continuously for 1 year in the United States or its outlying possessions at any time prior to the child's birth.  This did not change under any of the amendments to INA 309.  Thus a woman who had spent only a very short time every year outside the United States would be unable to transmit citizenship under INA 309(c) even though she might have qualified to transmit U.S. citizenship under INA 301(g) if she had been married to the father of the child; and

(2)  The 1966 amendment to INA 301 allowing members of the U.S. armed forces, employees of the U.S. government and certain international organizations, and their dependents to count certain periods outside the United States as U.S. physical presence does not apply to INA 309(c).  For this reason, the mother of a child born out of wedlock cannot use time spent abroad as a military dependent, for example, to satisfy all or part of the requirement of continuous physical presence in the United States for 1 year.  Subsequent legitimation or the establishment of a legal relationship between an alien father and a person who acquired U.S. citizenship at birth under INA 309(c) does not alter that person's citizenship.

e. Claims under "old" INA 309(a):

(1)  Prior to the November 14, 1986, amendments to INA 309(a), INA 309(a) did not apply exclusively to the out of wedlock children of U.S. citizen fathers, but could also be applied to the out of wedlock children of U.S. citizen mothers.  As a result, a person born out of wedlock to a U.S. citizen mother who could not transmit citizenship under INA 309(c) because she had not been physically present in the United States or outlying possessions for the continuous 1-year period may claim citizenship under "old" INA 309(a); and

(2)  As discussed previously, under "old" INA 309(a) the child’s paternity must have been established by legitimation before the child’s 21st birthday.  If this condition is met, "old" INA 309(a) permits acquisition through INA 301(g) (formerly 301(a)(7)), which requires that the citizen parent (mother or father), before the child’s birth, have amassed the 10 years of U.S. physical presence, including 5 after age 14. Persons born out of wedlock to alien fathers and U.S. citizen mothers on or after November 14, 1986 cannot claim citizenship under INA 309(a) because new INA 309(a) requires that the father have been a U.S. citizen at the time of the child’s birth.

f.  The retention requirements of former INA 301(b) did not apply to children who acquired U.S. citizenship under INA 309(c) by birth out of wedlock to U.S. citizen mothers.

g. An individual born abroad out of wedlock on or after June 12, 2017 to a U.S. citizen mother and alien father acquires U.S. citizenship at birth if the U.S. citizen mother has been physically present in the United States for five years, two of which are after the age of 14, prior to the child's birth.  The transmission is through the mother under INA 309(c), provided that she meets—as directed by the Supreme Court's ruling in Sessions v. Morales-Santana (see 8 FAM 102.3)—the 5/2 physical presence requirement set out in INA 301(g) (see 8 FAM 301.7-2).

8 FAM 301.7-5  Evidence of Claim to U.S. Citizenship Under Sections 301 and 309 INA

(CT:CITZ-1;   06-27-2018)

a. The evidence to establish citizenship claims is described briefly in 22 CFR 50.2-50.5 and in more detail in 22 CFR 51.42 and 22 CFR 51.43.  22 CFR 51.45 specifies that an applicant may be required "to submit other evidence deemed necessary to establish his or her U.S. citizenship or nationality."

b. Evidence in support of a claim to U.S. citizenship through birth abroad to one or both U.S. citizen parents under the provisions of sections 301 and/or 309 INA includes but is not limited to:

(1)  A birth certificate or other proof of the child's birth to a U.S. citizen mother, father, or both;

(2)  The parents' marriage certificate, if the child was born in wedlock or if the child claims legitimation through the marriage of the parent;

(3)  Form DS-5507 or other evidence of the child's legitimacy or legitimation, if the child was born out of wedlock (unless the claim is through the mother under section 309(c));

(4)  Evidence that at least one parent was a U.S. citizen at the time of the child's birth; and

(5)  Evidence of that parent's physical presence in the United States, in qualifying employment abroad, or as the dependent unmarried son or daughter and a member of the household of a person so employed, prior to the child's birth for the length of time required by the section of law under which the child is claiming U.S. citizenship.

c.  Those persons born before October 10, 1952, who acquired U.S. citizenship pursuant to section 301(a)(7), as made applicable by the act of March 16, 1956, must also prove that they complied with or were exempted from the applicable retention requirements (see 7 FAM 1100 Appendix L).

d. Adults wishing to have their citizenship status adjudicated should complete form DS-11 and form DS-4079, Questionnaire Information for Determining Possible Loss of U.S. Citizenship. Citizenship claims of a person under the age of 18 may be adjudicated on the basis of a passport/registration application signed, as appropriate, by the applicant, a parent, legal guardian, or person acting in loco parentis or on the basis of an application for a Report of Birth completed by a parent or legal guardian.

8 FAM 301.7-6  Unassigned

(CT:CITZ-15;   01-23-2019)

8 FAM 301.7-7  Child Born Out of Wedlock to a U.S. Citizen Father and Alien Mother:  Determining Whether to Use Old 309(a) or New(a) INA

(CT:CITZ-1;   06-27-2018)

Date of Birth

Applicable Statute

Age by which "Legitimation" Must Occur

Date by which "Legitimation" Must Occur

Statement of Support Required

On or before 11/14/68

Old Section 309(a)

21

11/14/89

No

After 11/14/68 and

Old Section 309(a)

21

11/14/92

No

On or before 11/14/71

New Section 309(a)

18

11/14/89

Yes

After 11/14/71

and

Old Section 309(a)

15

11/14/86

No

Before 11/14/86

New Section 309(a)

18

11/14/04

Yes

On or After 11/14/86

New Section 309(a)

18

None

Yes

8 FAM 301.7-8  Summary of Legitimation Laws in the United States (as of 10/18/1993)

(CT:CITZ-1;   06-27-2018)

a. The term “LEGITIMATION” in the headings refers only to the statutory procedure required to establish the relationship between the U.S. citizen father and his child for purposes of acquiring citizenship.

b. The Bureau of Consular Affairs compiled the following information on state laws relating to legitimation as understood by the Department as of October 18, 1993.  It is not definitive and cannot substitute for actual reference to the laws in question when necessary.  The subject of legitimation is not an easy area of the law to research.  Even if the respective state codes were readily available, state laws on this topic often are not well indexed or cross-referenced.  Moreover, statutes relating to legitimation can be scattered in chapters pertaining to minors, estates, marriage, and divorce.

c.  The varying terminology employed by individual state codes also can render this subject difficult.  A child born out of wedlock may be referred to in statute as "illegitimate" or, in older statutes, a "bastard."  Similarly, a child who has been legitimated may be called "acknowledged" or "recognized."  Many states, particularly those which subscribe to the Uniform Parentage Act, simply refer to the establishment of the parent child relationship, a concept intended to be synonymous with legitimation as that term traditionally has been used.

d. Since the 1993, state laws governing the legitimation of children have undergone many changes.  Most of these changes can be read as "liberalizing" the laws that result in a child being placed in a position identical, or substantially identical, to that of a child born in wedlock.  In this context, "liberalization" means making less stringent the requirements for legitimation or providing additional means by which legitimation can be accomplished.

e. While the laws of every state are different, there are some major similarities.  The laws of every state declare that the subsequent intermarriage of a child's natural (biological) parents serves to legitimate the child.  A few states impose conditions in this regard.  Further, the laws of every state make legitimate the child of a void marriage with a few states adding conditions.  A number of states have enacted statutes that categorically declare that the existence of a biological relationship between a father and his child in and of itself establishes a legal relationship between the two, without regard to the marital status of the parents.  Finally, almost every state provides means by which a child can be legitimated in the absence of a marriage of the parents.  A post should contact CA/PPT/S/A at AskPPTAdjudication@state.gov to confirm the current provision of the law of the state in question, if necessary.  This is particularly important to do if the post is otherwise prepared to conclude that a citizenship claim of a child born out wedlock should be denied on the grounds that a statute does not serve to legitimate a child.

f.  Please note that the effective date of each statute listed is enclosed in parentheses at the end of the item.

UNCLASSIFIED (U)