8 FAM 302
(U) Non-Citizen U.S. Nationality
8 FAM 302.1
Historical Background to Acquisition by Birth in U.S. Territories and Possessions
(Office of Origin: CA/PPT/S/A)
8 FAM 302.1-1 How Territories and Possessions Were Acquired
a. In the late 19th and early 20th centuries, U.S. sovereignty was extended to overseas territories. These territories (unlike those of the western United States, Alaska, and Hawaii) were not considered a part of the United States, and the Constitution was held not to be fully applicable to them.
b. The territories came under U.S. control in a number of ways:
(1) Puerto Rico, Guam, and the Philippines. After the Spanish-American War, Spain ceded Puerto Rico, Guam, and the Philippines to the United States by the Treaty of Paris of 1899 (30 Stat. 1754)("Treaty of Paris"). The treaty came into force in April 11, 1899. The Philippines ceased being a U.S. territory upon its independence on July 4, 1946; The U.S. noncitizen nationality of persons born in the Philippines was automatically terminated upon the grant of independence July 4, 1946 (see 8 FAM 301.12);
(2) American Samoa: In a Tripartite Convention (31 Stat. 1878) ratified on February 16, 1900, Great Britain and Germany ceded American Samoa to the United States;
(3) Panama Canal Zone: The Republic of Panama, by a convention that became effective on February 26, 1904, granted the United States sovereignty over an area of about five miles on either side of a canal that was to be built across the Isthmus of Panama to connect the Atlantic and Pacific Oceans. U.S. sovereignty over the Panama Canal Zone ended on October 1, 1979 in accordance with the Panama Canal Treaty (TIAS 10030);
(4) Virgin Islands of the United States: The Virgin Islands of the United States, formerly the Danish West Indies, were purchased from Denmark pursuant to a convention ratified on January 17, 1917;
(5) Swains Island: On March 4, 1925, by joint resolution, Congress proclaimed American sovereignty over Swains Island, which had been the private possession of an American family for about 50 years, and made it part of American Samoa; and
(6) Northern Mariana Islands: These islands, which were part of a U.N. Trusteeship Territory since 1947, became a territory of the United States on November 3, 1986, when the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (Public Law 94-241. 90 Stat. 263)("Covenant") of March 24, 1976, entered fully into force. All the islands formerly under the Trusteeship, which was known as the Trust Territory of the Pacific Islands (TTPI), have assumed new political status and the TTPI no longer exists.
c. Treaties, conventions, and proclamations concerning these areas provided for the nationality or citizenship of certain of the inhabitants, but none of the provisions was very specific. Questions arose almost immediately about the status and rights of the inhabitants and the relationship of the newly acquired territories to the United States.
8 FAM 302.1-2 Status of Inhabitants of Territories, Absent Laws Defining Status
a. Eventually, Congress enacted laws defining the relationship of the unincorporated overseas territories to the United States and the citizenship and nationality status of their inhabitants.
b. Before the Nationality Act of 1940 and absent laws specifying how U.S. citizenship could be acquired by persons born in a particular territory, children born in a U.S. possession could acquire U.S. citizenship under the laws governing birth abroad if the citizen parent was qualified to transmit U.S. citizenship.
c. A child born in an outlying possession before January 13, 1941, whose father (or mother if the child was born out of wedlock) was a non-citizen U.S. national, was held to have acquired the parent's status, and a child born there to alien parents was held not to have acquired U.S. nationality.
8 FAM 302.1-3 Laws Governing Status of Persons Born in Outlying Possessions
Persons born in the outlying possessions may have a claim to U.S. citizenship or U.S. nationality. If an applicant has a potential claim to U.S. citizenship, that claim must be properly adjudicated and a determination of non-citizenship made before the applicant may be documented as a non-citizen national. Some statutes and treaties, such as section 302 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands, have specified means by which persons who automatically acquired U.S. citizenship could instead opt to be non-citizen nationals. In the absence of such a provision, a person who has acquired U.S. citizenship may not choose to be a non-citizen national rather than a citizen.
8 FAM 302.1-3(A) Under the Nationality Act of 1940 (NA)
a. Under the NA (effective January 13, 1941 to December 24, 1952):
(1) Puerto Rico and the U.S. Virgin Islands came within the definition of "United States" for nationality purposes, but they were not made incorporated territories; and
(2) Other territories under U.S. jurisdiction at that time, except the Canal Zone, were held to be outlying possessions of the United States.
b. Section 201(e) NA stated how U.S. citizenship could be acquired by birth in outlying possessions:
The following shall be nationals and citizens of the United States at birth: (e) A person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who resided in the United States or one of the outlying possessions prior to the birth of such person
c. Sections 204(a) and (c) NA stated how non-citizen U.S. nationality could be acquired by birth in an outlying possession:
Unless otherwise provided in section 201, the following shall be nationals, but not citizens, of the United States at birth;
A person born in an outlying possession of the United States of parents one of whom is a national, but not a citizen, of the United States; or
A child of unknown parentage found in an outlying possession of the United States, until shown not to have been born in such outlying possession.
d. Section 205 NA made sections 201(e) and 204(a) applicable to children born out of wedlock under certain conditions;
(1) The provisions of section 201, subsections (c), (d), (e), and (g), and section 204, subsections (a) and (b), hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjudication of a competent court; and
(2) In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this act, if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.
8 FAM 302.1-3(B) Under the Immigration and Nationality Act of 1952 (INA)
a. Under the INA (effective December 24, 1952 to present), the definition of:
(1) "United States," for nationality purposes, was expanded to add Guam; and, effective November 3, 1986, the Commonwealth of the Northern Mariana Islands (in addition to Puerto Rico and the Virgin Islands of the United States). Persons born in these territories on or after December 24, 1952 acquire U.S. citizenship at birth on the same terms as persons born in other parts of the United States; and
(2) "Outlying possessions of the United States" was restricted to American Samoa and Swains Island.
b. Section 301(e) INA (formerly 301(a)(5)) stated how U.S. citizenship could be acquired by birth in outlying possessions:
The following shall be nationals and citizens of the United States at birth: (e) a person born in an outlying possession of the United States of parents, one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person
c. Section 309 INA made section 301(e) applicable to children born out of wedlock under certain conditions (see 8 FAM 301.7).
d. Sections 308(1) and (3) INA provide for acquisition of non-citizen U.S. nationality by birth in an outlying possession:
Unless otherwise provided in Section 301 of this title, the following shall be nationals, but not citizens of the United States at birth;
(1) A person born in an outlying possession of the United States on or after the date of formal acquisition of such possession; or
(3) A person of unknown parentage found in an outlying possession of the United States while under the age of 5 years, until shown, prior to his attaining the age of 21 years, not to have been born in such outlying possession
8 FAM 302.1-3(C) Status of Inhabitants of Territories Not Mentioned in the Immigration and Nationality Act(INA)
The United States exercises sovereignty over a few territories besides those mentioned above. Under international law and Supreme Court dicta, inhabitants of those territories, (Midway, Wake, Johnston, and other islands) would be considered non-citizen U.S. nationals. However, because the INA defines "outlying possessions of the United States" as only American Samoa and Swains Island, there is no current law relating to the nationality of the inhabitants of those territories or persons born there who have not acquired U.S. nationality by other means.