UNCLASSIFIED (U)

8 FAM 301.6

Nationality Act of 1940

(CT:CITZ-1;   06-27-2018)
(Office of Origin: CA/PPT/S/A)

8 FAM 301.6-1  Effective Date

(CT:CITZ-1;   06-27-2018)

The Nationality Act of 1940 (54 Stat. 1137) went into effect on January 13, 1941.  It also:

(1)  Repealed section 1993, revised statutes; and

(2)  Was in most, but not all, respects superseded by the Immigration and Nationality Act of 1952 (INA), effective December 24, 1952, at 12:01 a.m., Eastern Standard Time.

8 FAM 301.6-2  Text of Section 201 Nationality Act of 1940 (NA)

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Selected portions of section 201 NA, which is not readily available for reference at many posts, are provided here:

The following shall be nationals and citizens of the United States at birth:

(c)      A person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States or one of its outlying possessions, prior to the birth of such person;

(d)      A person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who resided in the United States or one of its outlying possessions prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(g)      A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien:  Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years:  Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.  The preceding provisos shall not apply to a child born abroad whose American parent is at the time of the child's birth residing abroad solely or principally in the employment of the Government of the United States or a bona fide American educational, scientific, philanthropic, religious, commercial, or financial organization, having its principal office or place of business in the United States, or an international agency of an official character in which the United States participates, for which he receives a substantial compensation;

(h)      The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934;

(i)       A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has served or shall serve honorably in the Armed Forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as proclaimed by the President or determined by a joint resolution by the Congress and who, prior to the birth of such person, has had ten years' residence in the United States or one of its outlying possessions, at least five years of which were after attaining the age of twelve years, the other being an alien: Provided, that in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease. (Added by the Act of July 31, 1946.)

NOTE:  By Proclamation No. 2714 of December 31, 1946 the President publicly announced the cessation of hostilities effective 12 o'clock noon December 31, 1946 (see section 201(i) NA).

8 FAM 301.6-3  Residence Requirement for Transmitting U.S. Citizenship (January 13, 1941, through December 23, 1952)

8 FAM 301.6-3(A)  Basic Elements

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a. The Nationality Act's requirements for acquiring U.S. citizenship by birth abroad differed from those of section 1993, revised statutes (R.S.).  To transmit citizenship to foreign-born children, the NA required a U.S. citizen married to an alien to have had a much longer residence in the United States or its outlying possessions than one married to a U.S. citizen or national.

b. "United States" and "outlying possessions" were defined as the continental United States, Alaska, Hawaii, Puerto Rico, the U.S. Virgin Islands, and all other territory, except the Canal Zone, over which the United States exercised sovereignty (section 101 NA).

c.  If both parents were U.S. citizens or if one was a citizen and the other a U.S. national (defined by section 101(b) NA in this context as a person, not a U.S. citizen or an alien, who owes permanent allegiance to the United States), the length of residence required to transmit citizenship was not specified, and any period of presence accompanied by the maintenance of a place of general abode in the United States or its outlying possessions would satisfy the requirement.  Section 201(g) NA specified, however, that if one parent was an alien, the citizen parent must have resided in the United States or one of its outlying possessions before the child's birth for a total of 10 years, including 5 years after the citizen parent's 16th birthday, in order to transmit citizenship.

d. This lengthy residence was a way to ensure that there would not be successive generations of Americans residing abroad with no ties to the United States.  It also meant that citizens under age 21 and married to aliens could not transmit citizenship under section 201(g) NA even if the citizen parents had resided in the United States since birth. The Department has no authority to waive any part of the required residence.

8 FAM 301.6-3(B)  What Constituted Residence in United States Under Section 201 NA

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a. Section 104 of the Nationality Act stated that, for the purposes of section 201, "the place of general abode shall be deemed the place of residence."  Thus, it required more than the temporary presence that was sufficient under earlier laws.  Visits to the United States by citizen parents prior to the birth of the child were insufficient to confer citizenship under section 201(c).  Persons who commuted daily to work or school in the United States from Canada and Mexico could not include the time which they spent in the United States each day as residence in the United States.

b. A technical domicile did not satisfy the residence requirement in the absence of the necessary principal dwelling place.  For this reason, citizens who, as minors, lived abroad while their parents resided in the United States could not be considered as having resided in the United States during the period of their parents' residence although, generally, the parents' residence would have been considered to be the children's residence also.

c.  Citizens who had been left in the United States when their parents took up residence abroad or who came to live in the United States while attending school or college and while their parents remained abroad would be able to count each period of time spent in the United States toward the satisfaction of the residence requirement for transmission of citizenship.

d. In a 1948 opinion, the legal advisor of the Department of State held that section 201 NA did not require the parents to remain continuously and uninterruptedly in the United States during the prescribed period, but required the parents to maintain their place of abode in the United States during any absences.  Residence was not terminated by visits abroad but was terminated by the establishment of a dwelling place abroad.  Absence from the United States as a member of the U.S. Armed Forces was counted as residence in the United States provided the service was honorably performed.  Absences from the United States due to employment or schooling abroad could also be included as residence in the United States as long as the persons involved maintained their place of general abode in the United States.

8 FAM 301.6-4  Special Provisions for Children of Veterans

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a. Section 201(g) NA precluded transmission of citizenship by persons under age 21.  Because persons under that age who had served in the U.S. Armed Forces during World War II and were married to aliens found themselves unable to transmit citizenship to their foreign-born children, the Nationality Act of 1940 was amended to include section 201(i).  This permitted citizens who had served honorably in the U.S. Armed Forces after December 7, 1941, and before December 31, 1946, to transmit citizenship to their foreign-born children if, prior to the child's birth, the citizen parent had resided in the United States for 10 years, 5 of which were after the citizen parent's 12th birthday.  Thus, section 201(i) NA reduced to age 17 the minimum age at which a citizen parent who served in the U.S. Armed Forces during the statutorily prescribed period could transmit citizenship.

b. As noted in 8 FAM 301.6-3(B), honorable U.S. military service counted as residence in the United States.  A child of a U.S. citizen whose U.S. military service was dishonorable could not benefit from section 201(i) NA.

c.  A child born between January 13, 1941 and December 23, 1952, inclusive, whose U.S. citizen parent met the transmission requirements of section 201(i) NA was considered to have acquired U.S. citizenship at birth, whether the parent's military service was before or after the child's birth.

d. Originally, it was held that section 205 NA applied to cases of children who were born out of wedlock and claimed citizenship under section 201(i) NA.  However, in Y.T. v. Bell, 478 F. Supp. 828 (W.D. Pa 1979), the court ruled that section 201(i) NA does not require the child to be legitimated in accordance with section 205 NA in order to acquire U.S. citizenship.  It was sufficient that the child was the blood issue of the serviceman (established in Y.T. by an affidavit of paternity) and later complied with applicable retention requirements.  The court reached its conclusion on two grounds:

(1)  Section 205 NA does not specifically refer to Section 201(i); and

(2)  Equal protection.

e. The use of section 201(i) NA should be considered only if it was not possible to acquire citizenship under section 201(g) NA.  All children who became U.S. citizens under section 201(i) NA were subject to that section's requirements for retaining U.S. citizenship, but, because in 1952 none of them were old enough to begin to comply with section 201(i)'s retention requirements, they all became subject to those of Section 301(b) INA (see 7 FAM 1100 Appendix L).

f.  Under the Act of March 16, 1956 (70 Stat. 50), the child of a citizen who did not have enough U.S. residence to transmit citizenship under section 201 (g) or (i) NA but who had served honorably in the U.S. Armed Forces between December 31, 1946 and December 24, 1952, and who, before the child's birth, had met the physical presence requirement of section 301(a)(7) INA, as originally enacted, acquired U.S. citizenship under section 301(a)(7) INA and was subject to the retention requirements of section 301(b) INA, as originally enacted.

8 FAM 301.6-5  Children Born Out of Wedlock (January 13, 1941, through December 23, 1952)

8 FAM 301.6-5(A)  Text of Section 205 NA

(CT:CITZ-1;   06-27-2018)

Unlike older nationality laws, the Nationality Act of 1940 specified how children born out of wedlock to U.S. citizens could acquire U.S. citizenship.  Section 205 NA stated that:

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.

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 U.S.C. 605; 54 Stat. 1139-1140.)

8 FAM 301.6-5(B)  Birth to American Father, With Paternity Established Before December 24, 1952

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a. For a person to have acquired U.S. citizenship at birth abroad out of wedlock to an alien mother and a U.S. citizen father:

(1)  The father must have met the qualifications for transmitting U.S. citizenship; and

(2)  The person's paternity must have been established while under the age of 21 by legitimation under an applicable U.S. or foreign law or by the adjudication of a court of competent jurisdiction.

b. Under section 205 NA, a child could acquire U.S. citizenship without legitimation by the U.S. citizen father if, during the child's minority, a court of competent jurisdiction ruled that the father was the parent of the child.

c.  Section 205 NA was not revised when section 201 NA was amended by adding subsection (i).  In Y.T. v. Bell, 478 F. Supp. 828 (W.D. Pa 1979), the court held that section 205 did not apply to subsection 201(i).  Therefore, legitimation or adjudication by a competent court was not necessary for acquisition of U.S. citizenship under section 201(i) NA (see 8 FAM 301.6-2 and 8 FAM 301.6-4).

8 FAM 301.6-5(C)  Birth to American Father From 1941 to 1952 With Paternity Established on December 24, 1952

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a. Section 309(b) of the Immigration and Nationality Act (INA) (8 U.S.C. 1409(b)) states that: Except as otherwise provided in section 405, the provisions of section 301(a)(7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this act, as of the date of birth, if the paternity of such child is established before or after the effective date of this act while such child is under the age of twenty-one years by legitimation.

NOTE:  On December 29, 1981, Public Law 97-116 (95 Stat. 1620; 8 U.S.C. 1409) changed "301(a)(7)" to "301(g)."

b. The Department has found this section of law somewhat ambiguous.  The law clearly provided the possibility for children born after January 13, 1941, and legitimated before December 24, 1952, who did not acquire citizenship under section 201 NA, to acquire U.S. citizenship under section 301(a)(7) INA.  However, it is not clear whether it was intended to be the sole way a person born out of wedlock after January 13, 1941, and legitimated on or after December 24, 1952, could acquire U.S. citizenship.  If so, it runs counter to the time-honored principle that legitimation is retroactive to the date of birth and confers the full status and rights of a legitimate child (32 Op. Atty. Gen. 162), and that acquisition of U.S. citizenship depends on the law in force at the time of the applicant's birth.

c.  Despite this, the Department originally interpreted section 309(b) INA strictly and applied it to all cases that involved legitimation after December 24, 1952, of children born during the life of the Nationality Act.  Later, departures from this strict standard occurred in individual cases, mainly because of the inequities possible when section 309(b) INA is construed narrowly and not as the remedial law it apparently was intended to be.

d. In view of the retroactive effect of legitimation, the Department holds that persons born during the life of the Nationality Act, but legitimated after its repeal, can be considered to have acquired U.S. citizenship under section 201 (c), (d), or (g) NA, as made applicable by section 205 NA, if their fathers met the requirements for transmitting U.S. citizenship.  As noted in 8 FAM 301.6-4 and 8 FAM 301.6-5(B), section 205 NA was not applicable to section 201(i) NA.  Persons whose legitimation before age 21 did not enable them to claim citizenship under section 201 could acquire citizenship under section 301(a)(7) INA, as made applicable by section 309(a) INA, if their fathers were capable of transmitting citizenship under that section.  For persons born out of wedlock to American fathers during the life of the Nationality Act but legitimated after its repeal, the section of law most beneficial to the applicant should be applied.

8 FAM 301.6-5(D)  Birth Out of Wedlock to American Mother

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a. Under the second paragraph of section 205 NA, persons born out of wedlock to U.S. citizen mothers on or after January 13, 1941, acquired U.S. citizenship at birth if their mothers previously had resided in the United States (see 8 FAM 301.6-5(A)).

b. Paragraph two of section 205 NA also was retroactive, but the Department held that it did not apply to a child born abroad out of wedlock to a U.S. citizen mother if the child had been legitimated before the Nationality Act became effective.

c.  The citizenship status of persons who acquired U.S. citizenship at birth abroad out of wedlock to a U.S. citizen mother was not affected by legitimation after January 13, 1941, and no retention requirement applied.

8 FAM 301.6-6  Proof of Claim to U.S. Citizenship Under Sections 201 (c), (d), (g), and (i) and 205 NA

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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 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 201 and/or 205 NA 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)  If applicable, the parents' marriage certificate or other proof 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 before 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.  Persons who acquired U.S. citizenship under section 201 (g) or (i) NA must also prove that they have complied with or have been exempted from applicable retention requirements (see 7 FAM 1100 Appendix L).

UNCLASSIFIED (U)