8 FAM 301.5

Section 1993, Revised Statutes of 1878

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(Office of Origin: CA/PPT/S/A)

8 FAM 301.5-1  Text as Originally Enacted

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a. As originally enacted, section 1993 provided for transmission of citizenship only through fathers.  It stated:  All children heretofore or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.

b. Congress rectified the inequity in this law through the enactment of section 301(h) INA (8 U.S.C. 1401(h)) which specifically provides for acquisition of U.S. citizenship by children born abroad prior to 1934 to U.S. citizen mothers who had previously resided in the United States (see 8 FAM 301.4 and 8 FAM 301.7).

8 FAM 301.5-2  Residence Requirement for Transmitting U.S. Citizenship Before  January 13, 1941

8 FAM 301.5-2(A)  Purpose

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a. The aim of the residence requirements of section 1993, revised statutes (R.S), and of earlier laws was to prevent the residence abroad of successive generations of persons claiming the privileges of U.S. citizenship while evading its duties.

b. No citizenship law before the Nationality Act of 1940 explained what was meant by "resided in the United States" or when the parent's residence in the United States must have occurred.

8 FAM 301.5-2(B)  Residence May be of Short Duration But Must Have Preceded Birth

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a. The Department held that the U.S. residence had to precede the child's birth.

b. This position was confirmed by the Supreme Court in 1927 in Weedin v. Chin Bow, 274 U.S. 657 (see excerpts in 8 FAM 306.1).

c.  Any temporary residence or physical presence before the child's birth, save a mere transit presence of a few hours, satisfied the residence requirement of section 1993, R.S., and earlier laws.

8 FAM 301.5-2(C)  Territories Considered Part of United States for Purposes of Section 1993 R.S.

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a. The early citizenship laws did not define "United States."  However:

(1)  It was clear that States admitted to the Union were included; and

(2)  The incorporated territories of the western continental United States, Alaska, and Hawaii, to which the Constitution had been made fully applicable, were also considered to be part of the United States from the time when they were incorporated.

b. The status of persons born in Hawaii prior to its incorporation by the Hawaii Organic Act (31 Stat. 141) was addressed in section 100 of that Act, 31 Stat 161, which stated:  That for the purposes of naturalization under the laws of the United States residence in the Hawaiian Islands prior to the taking effect of this Act shall be deemed equivalent to residence in the United States.

c.  Statutes confirming citizenship by birth abroad are enacted pursuant to the power of Congress "to establish an uniform rule of naturalization," and are considered to be “naturalization laws” e.g., U.S. v. Wong Kim Ark, 169 U.S. 649, 672,702-704 (1898).  The reference to naturalization laws in the Hawaii Organic Act just quoted is considered to encompass such statutes including sections 301 and 309 of the Immigration and Nationality Act (INA).  Therefore, residence in the Hawaiian Islands before their annexation on August 12, 1898, counts as residence in the United States for the purpose of transmitting U.S. citizenship. e.g., Wong Kam Wo et al v. Dulles, 236 F.2d 622 (1956).

d. There are no similar statutory provisions regarding residence in other unincorporated territories.  The Department generally held that residence in unincorporated territories and possessions other than Hawaii could not be counted as residence in the United States for purposes of Section 1993 R.S.  However:

(1)  In individual cases, residence in Puerto Rico after April 10, 1899, was held to be sufficient for transmitting U.S. citizenship; and

(2)  The Immigration and Naturalization Service has held that residence in the U.S. Virgin Islands after January 16, 1917, could be counted as residence in the United States.

8 FAM 301.5-3  Children Born Out of Wedlock Before Noon EST May 24, 1934

8 FAM 301.5-3(A)  To American Father

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a. Until the Nationality Act of 1940 took effect in 1941, no U.S. law addressed specifically how U.S. children born abroad out of wedlock to U.S. citizens could acquire U.S. citizenship:

(1)  Originally, section 1993, R.S., and earlier laws were interpreted to permit only legitimate children of U.S. citizen fathers to acquire U.S. citizenship by birth abroad;

(2)  Children born out of wedlock to U.S. citizen fathers were considered to acquire U.S. citizenship at birth only if they were subsequently legitimated under the laws of the State of the father's domicile.  Once legitimated, they were regarded as having been born citizens of the United States (32 Op. Atty. Gen. 162); and

(3)  The Department and the Immigration and Naturalization Service interpreted "state" to include both U.S. States and foreign countries.

b. The Department holds that persons born abroad out of wedlock to U.S. citizen fathers and alien mothers when section 1993 R.S. was in effect acquired U.S. citizenship under that section of law upon legitimation under the laws of the father's domicile even when the legitimation occurred after the person's majority or after repeal of section 1993 R.S., as long as the state law set no age limits on legitimation.

8 FAM 301.5-3(B)  To American Mother

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a. In about 1912, the Department began to hold that a child born out of wedlock to a U.S. citizen mother (before May 24, 1934), acquired U.S. citizenship through the mother if she previously had resided in the United States.  It was considered that in the absence of a legally recognized father, the mother, as the sole parent, would have the rights normally attributed to a U.S. citizen father.  This also avoided statelessness for the child.

b. This view was overruled in 1939 by the Attorney General who stated that in such cases section 1993, R.S., must be held to preclude transmission of citizenship because section 1993 R.S., as originally enacted, did not permit women to transmit citizenship (39 Op. Atty. Gen. 290).

c.  The attorney general, who recognized the harshness inherent in his holding, expressed hope that legislative relief could be given retroactively.  This was done in section 205 Nationality Act of 1940 (NA) (see 8 FAM 301.6).

8 FAM 301.5-4  Absence of Retention Requirements Before May 24, 1934

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a. There have never been retention requirements for persons born abroad before May 24, 1934.  Some misunderstanding about this may exist because in 1907 Congress imposed requirements on U.S. citizen residing abroad who acquired citizenship under 1993 and who wished to avail themselves of the protection of the United States Government.  Section 6 of the act of March 2, 1907, stated that:  all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of (Sec. 1993 R.S.) and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States, and shall be further required to take an oath of allegiance to the United States upon attaining their majority.

b. Section 6 related only to whether consular protection would be provided.  Failure to register one's intention to remain a citizen and to take an oath of allegiance had no effect on the retention of citizenship, although it did mean that the person would not be treated as a citizen for consular protection purposes while abroad.

8 FAM 301.5-5  Proof of Claim to U.S. Citizenship Under Section 1993 Revised Statutes (R.S.), As Originally Enacted

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Section 1993 R.S., as originally enacted, applied only to persons whose fathers were U.S. citizens.  While it was in effect, it provided the only means by which a child born abroad could acquire U.S. citizenship.  Due to the retroactive application of section 301(h) INA, evidence to prove a claim to U.S. citizenship now for persons born prior to May 24, 1934 is the same as that listed in 8 FAM 301.5-9.

8 FAM 301.5-6  Section 1993, R.S., As Amended by Act of May 24, 1934

8 FAM 301.5-6(A)  Text of Amended Law

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a. Section 1993 R.S. was amended in 1934 to permit American women to transmit U.S. citizenship to their children born abroad and to impose retention requirements on all children born abroad to one U.S. citizen parent and one alien parent.

b. The amended section 1993 (48 Stat. 797), went into effect on May 24, 1934, at noon eastern standard time.  It stated that:  Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child.  In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.

8 FAM 301.5-6(B)  Effect of Amendment

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a. The second sentence raised a question whether a child born abroad to one U.S. citizen and one alien acquired citizenship at birth (subject to losing citizenship later if the residence and oath requirement were not met), or, was born an alien and acquired citizenship only after completing 5 years residence in the United States before reaching age 18 and taking the prescribed oath of allegiance.

b. On July 21, 1934, the attorney general held that, “the two conditions described in the act... must be regarded as conditions subsequent and not conditions precedent.” (38 Op. Atty. Gen. 10, 17-18).

c.  Thus the conditions in the second sentence of section 1993 were established as requirements for retention rather that acquiring citizenship.

8 FAM 301.5-7  Children Born Out of Wedlock from May 24, 1934, through January 12, 1941

8 FAM 301.5-7(A)  To American Father

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a. The requirements for acquiring U.S. citizenship at birth out of wedlock to an American father were not affected by the amendment of Section 1993, R.S., and remained as set forth in 8 FAM 301.5-3(A).

b. Upon legitimation, children born on or after May 24, 1934, became subject to the retention requirements of Section 1993 R.S., as amended, or of its successor laws.

c.  Persons past the age of possible compliance with the retention requirements when their citizenship was perfected were held not to have jeopardized their citizenship by their failure to comply with any applicable retention requirements.

8 FAM 301.5-7(B)  To American Mother

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a. On May 10, 1939, the Attorney General indicated (39 Op. Atty. Gen. 290) that it was not clear that children born abroad out of wedlock to American women acquired U.S. citizenship and that new legislation was desirable to clarify their status. However, the Department and the Immigration and Naturalization Service have held administratively that children born out of wedlock to American women while section 1993 R.S., as amended, was in effect acquired U.S. citizenship at birth if their mothers previously had resided in the United States (4 I. & N. Dec. 440 (1951)).

b. The retention requirements do not apply to persons who acquired U.S. citizenship under section 1993, R.S., as amended, through birth abroad out of wedlock to a U.S. citizen woman (7 I. & N. 523).

c.  The Department and the Immigration and Naturalization Service both hold that the legitimation after January 13, 1941, of a child who acquired U.S. citizenship through birth abroad out of wedlock to an American mother between May 24, 1934, and January 13, 1941, does not affect in any way the citizenship status that the child acquired at birth.  Even if the child is legitimated by an alien father, the retention requirements do not apply.

d. To clarify the status of children born out of wedlock to American women, section 205 of the Nationality Act of 1940 was made retroactive except to children legitimated before January 13, 1941.

8 FAM 301.5-8  Retention of U.S. Citizenship Acquired Under Section 1993 R.S., As Amended by Act of May 24, 1934

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a. When it amended sec 1993 R.S. to give women the right to transmit U.S. citizenship to their foreign-born children, Congress was concerned that a child with one citizen and one alien parent might have divided loyalties, particularly if the father was an alien through whom the child had acquired foreign nationality. To reduce conflicting ties of allegiance and to ensure that foreign-born children would regard themselves as Americans, section 1993 R.S., as amended, required such children to reside in the United States for at least 5 years before reaching age 18 and to take an oath of allegiance to the United States within 6 months after reaching age 21 or forfeit their citizenship.

b. The retention requirements did not apply if both parents were U.S. citizens or if the child had been born out of wedlock to a U.S. citizen woman. In such cases, it was felt that foreign influences and ties would be less likely to occur.

c.  No one ceased to be a citizen because of the retention requirements of section 1993 R.S., as amended.  This was because the Nationality Act of 1940 went into effect long before any child born on or after May 24, 1934, and subject to the retention requirements of section 1993 R.S., as amended, could have complied with both of the conditions needed to retain citizenship.  Section 201(h) NA applied the requirements of section 201(g) NA for retaining citizenship to persons born abroad on or after May 24, 1934 (see 7 FAM 1100 Appendix L).  Section 301(c) of the Immigration and Nationality Act of 1952, as originally enacted, made the retention provisions of section 301(b) INA, as originally enacted, applicable to such persons who did not comply with the retention provisions of section 201(g) NA (see 7 FAM 1100 Appendix L).

8 FAM 301.5-9  Evidence of Claim to Citizenship Under Section 1993 R.S., as Amended

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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 to establish acquisition of U.S. citizenship under section 1993 R.S., as amended, would consist of:

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

(2)  If applicable, the parents' marriage certificate or other evidence of the child's legitimacy or legitimation;

(3)  Proof of at least one parent's U.S. citizenship; and

(4)  Evidence of that parent's residence in the United States at any time before the child's birth.

c.  Persons born to one citizen and one alien parent must also prove that they met or have been exempted from applicable retention requirements.