UNCLASSIFIED (U)

8 FAM 301.7

Immigration and Nationality Act of 1952

(CT:CITZ-54;   04-09-2021)
(Office of Origin: CA/PPT/S/A)

8 FAM 301.7-1  Introduction

(CT:CITZ-54;   04-09-2021)

a. The Immigration and Nationality Act (INA), as originally enacted, went into effect at 12:01 a.m., Eastern Standard Time, on December 24, 1952.

b. For persons born abroad in wedlock on or after December 24, 1952 and others as specified, INA 301 succeeded section 201 of the Nationality Act of 1940 (NA) on acquisition of citizenship and nationality at birth.  In particular, INA 301(a)(7) (now INA 301(g)) succeeded NA 201(g) on acquisition of citizenship at birth by birth abroad to a U.S. citizen parent and an alien parent.  INA 309 applies to persons born abroad out of wedlock to a U.S. citizen parent or parents.

c.  INA 301 and 309 specify that, among other requirements, a U.S. citizen or non‑citizen U.S. national parent or parents of a person born abroad must establish a prior residence or a period or periods of physical presence in the United States (depending on the applicable statute) to transmit U.S. citizenship to the person at birth.

d. Under NA 201(g), a person born abroad in wedlock to a U.S. citizen parent and an alien parent acquired U.S. citizenship at birth provided the U.S. citizen parent had 10 years of "residence" in the United States or its outlying possessions prior to the person's birth.  Based on the NA's definition of "residence," the U.S. citizen could transmit U.S. citizenship to the person at birth even though the U.S. citizen parent may have been physically present in the United States or its outlying possessions for only a small part of that time.

e. The INA provides that a person born abroad in wedlock to a U.S. citizen and an alien acquires U.S. citizenship at birth provided the U.S. citizen parent had 10 years of "physical presence" (or five years in the case of a person born abroad on or after November 14, 1986) in the United States or its outlying possessions prior to the person's birth.  The change from 10 years of "residence" as required by NA 201(g) to 10 years of "physical presence" (or five years for persons born abroad on or after November 14, 1986) was Congress' attempt to ensure that a foreign-born U.S. citizen would grow up subject to U.S. influences.  With a long total period or periods of physical presence in the United States prior to the person's birth, Congress believed that the U.S. citizen parent would have spent enough time in the United States to absorb U.S. customs and values which, in turn, would be transmitted to the child.

8 FAM 301.7-2  Residence

(CT:CITZ-54;   04-09-2021)

a. 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 outlying possessions of the United States named in INA 101(a)(29) (8 U.S.C. 1101(a)(29)) 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 AskPPTAdjudication@state.gov;

NOTE:  This is not a public-facing e-mail address and public inquiries will not be replied to.

(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

(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 AskPPTAdjudication@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.

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

c.  No specific period of residence is required for INA 301(c), but either U.S. citizen parent must have had a residence in the United States as defined in INA 101(a)(33) prior to the birth abroad of their child.

d. 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."

e. Residence is a fact-specific assessment that 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.  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.  Residence is more than a temporary presence.  Visits to the United States are insufficient to establish prior residence for the purposes of citizenship transmission under INA 301(c).

f.  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.  By contrast, a residence is one's principal, actual dwelling place.  A person has a different relationship to a 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 their workplace to establish a residence.  In both examples, however, the person could establish physical presence.

g. 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 you 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.

h. Birth in the United States is usually sufficient to satisfy the prior 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 U.S. citizen parent's mother was not merely transiting through the United States at the time of 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.

i.  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.  However, if the stay at a place in the United States was relatively brief (e.g., a few months or less), then 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.

j.  The concept of "residence" should not be confused with the term "physical presence," which is used elsewhere in the INA as a requirement for transmitting citizenship and which is a more literal concept that may be easier to apply (see 8 FAM 301.7-3).

k. 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.  However, 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 vacationing 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 he did not have a residence in the United States. Please refer cases to AskPPTAdjudication@state.gov for review if the parent does not appear to have any residence, either in the United States or in a foreign country.

l.  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)  U.S. tax records;

(9)  Stamped school transcripts;

(10) Military records; and

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

m. In general, for overseas adjudication, the parent claiming a prior residence in the United States to transmit U.S. citizenship under INA 301(c) must be personally present at the post with documentation for an interview by a consular officer.

EXAMPLES:

Person A lives in Japan 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 Disney World.  This person did not reside nor have a residence in the United States, but did accumulate six weeks of physical presence in the United States.

 

Person B 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 B is on call, he spends the night at his cousin's house in Texas.  Averaged over a year, Person B spent seven months in the United States -- either at work, at his cousin's house, or visiting friends and work colleagues.  Person B did not reside nor have a residence in the United States, but he accumulated seven months of physical presence in the United States.

 

Person C 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 C, who is now 30 years old, lived in Israel all of his life, but he went to summer camp in upstate New York every summer from age 8 until age 17.  He would usually arrive in June and would return to his home in Israel in August.  Person C did not reside nor have a residence in the United States, but the time spent in the United States during those summers would count as physical presence in the United States.

8 FAM 301.7-3  U.S. Physical Presence

(CT:CITZ-54;   04-09-2021)

a. 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.

b. 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:

(1)  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;

(2)  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);

(3)  Employment abroad in a capacity mentioned in the proviso of INA 301(g) can count toward and even completely satisfy the required period of physical presence in the United States.  A citizen who has never been physically present 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; and

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

c.  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 five of which were after reaching age 14.  For children born on or after November 14, 1986, the transmitting parent must have five years' physical presence, at least two of which were after age 14.

d. Usually, it is not necessary to compute U.S. physical presence down to the minute.  For example, a U.S. citizen 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.  In general, a U.S. citizen who was in the United States from 1970 to 1986 could transmit U.S. citizenship at birth to a child born abroad on or after November 14, 1986; 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 one year of the required two years of physical presence after age 14.

e. 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 (see 8 FAM 303.4-3 for guidance on evidence of 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.

8 FAM 301.7-3(A)  Interpretation of "Periods of Honorable Service in the Armed Forces of the United States"

(CT:CITZ-54;   04-09-2021)

a. 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.

b. 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.

c.  The Department and Department of Homeland Security's U.S. Citizenship and Immigration Services  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).

d. 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.

e. 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.

8 FAM 301.7-3(B)  Interpretation of "Employment with the United States Government"

(CT:CITZ-54;   04-09-2021)

a. 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:

(1)  The person occupies an allocated position;

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

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

(4)  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).

b. Persons who work abroad for non-appropriated funded 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.

c.  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).

d. Peace Corps:

(1)  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

(2)  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 as physical presence in the United States (see 8 FAM 503.3 regarding eligibility for official or diplomatic passports).

e. Contract employment and grants:

(1)  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.

(2)  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.  (U) The U.S. Agency for Global Media (USAGM) an independent agency of the United States government that oversees several media entities including the Voice of America (VOA), the Office of Cuba Broadcasting (OCB), Radio Free Europe/Radio Liberty (RFE/RL), Radio Free Asia (RFA), the Middle East Broadcasting Networks (MEBN), and the Open Technology Fund (OTF).  You must inquire as to the exact nature of the employment in order to make an accurate decision under the law:

(1)  (U) While the USAGM is a U.S. government agency, the media entities it oversees or advises may not be.  As such, employment directly with USAGM constitutes being physically present in the United States in accordance with INA 301(g) (see 8 FAM 301.7-3(B)) and the child of such an employee as residing in the United States in accordance with INA 320(c) (see 8 FAM 301.10-2(F)(3));

(2)  (U) Two of the media entities overseen by USAGM (VOA and OCB) are federal public service media.  Consequently, employment with these media entities also constitutes physical presence in the United States under INA 301(g) or residing in the United States under INA 320(c);

(3)  (U) The remaining four media entities (RFE/RL, RFA, MEBN, and OTF) are private organizations over which the USAGM board only has an advisory role.  Consequently, employment with these media entities does not constitute physical presence in the United States under INA 301(g) or residing in the United States under INA 320(c); and

(4)  (U) Some applicants may believe that they have acquired U.S. citizenship on the basis of INA 319(c) and are therefore entitled to a U.S. passport.  Although INA 319(c) does provide for expedited naturalization of the employees and spouses of RFE/RL, RFA, MEBN, and OTF, these provisions are implemented by U.S. Citizenship and Immigration Services, not by the Department.

8 FAM 301.7-3(C)  Interpretation of "Employment....With an International Organization as That Term Is Defined in ...22 U.S.C. 288"

(CT:CITZ-54;   04-09-2021)

a. Employment abroad with any of the listed organizations in 8 FAM 102.5-2 while the designation was in effect may be counted as physical presence in the United States.

b. 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.

8 FAM 301.7-3(D)  Interpretation of "Dependent Unmarried Son or Daughter"

(CT:CITZ-54;   04-09-2021)

a. 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.

b. "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.

c.  "Unmarried" means single, divorced, or widowed.

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

(1)  Legitimate son or daughter;

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

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

(4)  Stepson or stepdaughter;

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

(6)  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.

8 FAM 301.7-3(E)  Interpretation of "Member of the Household"

(CT:CITZ-54;   04-09-2021)

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.

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.

e. The proviso in INA 301(g) specifically applies to parents and unmarried sons or daughters who are a member of the household of the parent.  Spouses do not acquire physical presence under the proviso in INA 301(g).

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

(CT:CITZ-54;   04-09-2021)

The following table is a reference tool to help you locate the appropriate guidance.  In addition, 8 FAM 301.7-5 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 301.7-6

8 FAM 301.7-9(A)

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

8 FAM 301.7-7

8 FAM 301.7-9(B)

U.S. Citizen Parent and Alien Parent

8 FAM 301.7-8

8 FAM 301.7-9(C)

8 FAM 301.7-9(D)

8 FAM 301.7-9(E)

8 FAM 301.7-5  INA 309(a) (Old and New) Birth Abroad Out of Wedlock to a U.S. Citizen Father

(CT:CITZ-54;   04-09-2021)

a. There are three categories of persons who may derive U.S. citizenship under INA 309(a):

(1)  Persons covered by “new” INA 309(a);

(2)  Persons covered by “old” INA 309(a); and

(3)  Persons who may elect to have either old or new INA 309(a) apply.  “Old” INA 309(a) is defined as INA 309(a) as in effect prior to November 14, 1986, and “new” INA 309(a) as INA 309 (a) as in effect thereafter.

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

(1)  “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 to persons who had not attained age 18 as of November 14, 1986 (section 23(e) of the Immigration and Technical Corrections Act of 1988 (Public Law 100-525 of October 24, 1988), which further amended the Immigration and Nationality Act Amendments of 1986 (Public Law 99-653));

(2)  “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

(3)  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, whose paternity was not previously established by legitimation.  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.)

c.  The following chart summarizes whether to use "old" or "new" INA 309(a):

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 INA 309(a)

21

11/14/89

No

After 11/14/68 and

Old INA 309(a)

21

11/14/92

No

On or before 11/14/71

New INA 309(a)

18

11/14/89

Yes

After 11/14/71

and

Old INA 309(a)

15

11/14/86

No

Before 11/14/86

New INA 309(a)

18

11/14/04

Yes

On or After 11/14/86

New INA 309(a)

18

None

Yes

8 FAM 301.7-6  Birth in Wedlock or of Wedlock to Two U.S. Citizen Parents

(CT:CITZ-54;   04-09-2021)

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. 

8 FAM 301.7-7  Birth in Wedlock or of Wedlock to a U.S. Citizen Parent and a Non-Citizen U.S. National Parent

(CT:CITZ-54;   04-09-2021)

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 one 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 (2) or (4) is only acquired when there is no U.S. citizen parent who can transmit U.S. citizenship.

8 FAM 301.7-8  Birth Abroad in Wedlock or of Wedlock to a U.S. Citizen Parent and an Alien Parent

(CT:CITZ-54;   04-09-2021)

Unlike INA 301(d), INA 301(g) (formerly INA 301(a)(7)) does not require continuous physical presence.  However, the requirements for transmitting U.S. citizenship to a person born abroad in wedlock to a U.S. citizen and an alien can be viewed as much more stringent than the requirements under INA 301(c):

(1)  For persons born abroad prior to November 14, 1986, the U.S. citizen parent must have been physically present in the United States or its outlying possessions for a period or periods totaling ten years prior to the birth of the person, five of which were after reaching age 14; and

(2)  For persons born abroad on or after November 14, 1986, the U.S. citizen parent must have been physically present in the United States or its outlying possessions for a period or periods totaling five years prior to the birth of the person, two of which were after reaching age 148 FAM 301.7-9 Birth Abroad Out of Wedlock to a U.S. Citizen Parent or Parents

8 FAM 301.7-9  Birth Abroad Out of Wedlock to a U.S. Citizen Parent or Parents

8 FAM 301.7-9(A)  Birth Abroad Out of Wedlock to Two U.S. Citizen Parents

(CT:CITZ-54;   04-09-2021)

a. A person born abroad out of wedlock to a U.S. citizen father and a U.S. citizen mother acquires U.S. citizenship at birth under old INA 309(a) if paternity is established by legitimation while the child is under the age of 21.

b. A person born abroad out of wedlock to a U.S. citizen father and a U.S. citizen mother acquires U.S. citizenship at birth under new INA 309(a) if the U.S. citizen father first meets the four requirements of new INA 309(a) (see 8 FAM 301.7-9(C) for detailed guidance on INA 309(a)):

(1)  The blood relationship is established by clear and convincing evidence;

(2)  The father was a U.S. citizen at the time of the persons birth;

(3)  The father has agreed in writing to provide financial support; and

(4)  The child is legitimated, the father acknowledges paternity, or paternity is established by court order.

c.  After meeting the requirements of old or new INA 309(a), by the terms of INA 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 person's birth (see 8 FAM 301.7-6 regarding residence).  If the individual cannot show that the U.S. citizen father meets the requirements of old or new 309(a), but it is possible the person acquired U.S. citizenship at birth through the mother under INA 309(c):

(1)  If the person was born before June 11, 2017, you must adjudicate the claim in accordance with 8 FAM 301.7-9(C); or

(2)  If the person was born on or after June 12, 2017, please refer to AskPPTAdjudication@state.gov.

8 FAM 301.7-9(B)  Birth Out of Wedlock to a U.S. Citizen Parent and a Non-Citizen U.S. National Parent

(CT:CITZ-54;   04-09-2021)

a. If the father is the U.S. citizen parent and the mother is a non-citizen U.S. national, the U.S. citizen father must meet the first four requirements of INA 309(a) and must establish that he was physically present in the United States or an outlying possession for a continuous period of one year before the child's birth.

b. If the mother is the U.S. citizen parent and the father is a non-citizen U.S. national, the father must meet the first four requirements of INA 309(a), after which, by terms of INA 309(a), the provisions of INA 301(d) apply (see 8 FAM 301.7-8.  The mother must establish that she was physically present in the United States or an outlying possession for a continuous period of one year before the child's birth.  The Sessions v. Morales-Santana decision does not apply to INA 301(d).

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 (2) or (4) is only acquired when there is no U.S. citizen parent who can transmit U.S. citizenship.

c.  If the father does not meet the first four requirements of INA 309(a), you should adjudicate the application as birth abroad out of wedlock to a U.S. citizen mother and an alien father under INA 309(c) (see 8 FAM 301.7-9(E)).

8 FAM 301.7-9(C)  Birth Out of Wedlock to a U.S. Citizen Father and an Alien Parent Under "New" INA 309(a)

(CT:CITZ-54;   04-09-2021)

a. 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:

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

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

(3)  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.

b. The evidence must show that the father was a U.S. citizen when the child was born.

c.  Father's statement of support:

(1)  A statement of financial support is required except when the father was deceased prior to the applicant becoming age 18.  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 deceased.  This is true even if the father cannot be located; unless deceased, the father must be located and comply with the requirements of INA 309(a), as amended, before the child's 18th birthday;

(2)  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 by itself;

(3)  Form DS-5507 "Affidavit of Parentage, Physical Presence, and Support," contains a statement of support which satisfies the requirements of "new" INA 309(a) (see 8 FAM 703.8 regarding the form DS-5507);

(4)  The statement of support is not required when the father was deceased prior to the applicant reaching age 18.  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;

(5)  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; or

(6)  If the father failed to provide the signed statement, or signed the statement after the applicant turned age 18, you may accept alternative documentation if the document is:

(a)  In writing;

(b)  Signed by the father, unless an attorney or accountant made representations on behalf, and with the consent, of the father;

(c)  Clearly shows that the father voluntarily agreed to provide ongoing financial support;

(d)  Precedes the child’s 18th birthday; and

(e)  Demonstrates coverage until at least the applicant’s 18th birthday.

(7)  Examples of acceptable documentation include, but are not limited to:

(a)  A certificate of marriage to the child’s mother or other legal parent subsequent to the child's birth;

(b)  An order issued by a court or other government authority, reflecting the father’s voluntary participation in the proceedings, that requires the father to support the child until at least the child’s 18th birthday;

(i)     Records of actual support payments, in the absence of such an order, are not acceptable; and

(ii)    An order issued during proceeding in which the father did not appear or otherwise participate, either in person or through a legal representative is not acceptable (see paragraph (6)(b) above regarding legal representation).

(c)  Signed federal or state tax returns, social security, Medicaid/Medicare, or other official government documentation in which the father claimed the child as a legally qualifying “dependent;”

(d)  Signed health insurance forms on which the father claimed the child as a legally recognized “dependent” in connection with a financial outlay or obligation; and

(e)  U.S. military or other U.S. government assignment or transfer forms listing the child as a legally qualifying “dependent.”

d. "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:

(1)  Legitimation:

(a)  “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;

(b)  Legitimation is the giving, to a child born out of wedlock, of 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 in relation to their 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);

(c)  “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.);

(d)  The Department's interpretation of foreign and domestic legitimation laws is available 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, if the person is still under age 18, you should request the father's statement of support and acknowledgement rather than expend resources in attempting to determine whether legitimation already occurred;

NOTE:  If legitimation is accomplished through the subsequent marriage of the parents, the marriage must be legal and valid under U.S. law (see 8 FAM 304.1-3 regarding polygamous and incestuous marriages).

(e)  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;

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

(g)  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 that must be considered in applying the relevant age limit to a citizenship claim.

(2)  Acknowledgement of paternity:

(a)  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;

(b)  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

(c)  Fathers of persons 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 person is under 18 at the time the joint document is signed.  Form DS-5507 may be used for this purpose.

(3)  Court adjudication of paternity:

(a)  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 person;

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

(c)  Fathers of persons 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, unless the decree is based on DNA test results.  Individuals presenting paternity decrees must still present evidence of a blood relationship as required by INA 309(a).  If there is evidence that draws into question a court's findings, you should consult AskPPTAdjudication@state.gov.

8 FAM 301.7-9(D)  Birth Abroad Out of Wedlock to a U.S. Citizen Father and an Alien Mother Under "Old" INA 309(a)

(CT:CITZ-54;   04-09-2021)

a. 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.

b. Legitimation:

(1)  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;

(2)  The INA defines "residence" as the place of general abode of a person; his principal, actual dwelling place in fact, without regard to intent (see 8 FAM 301.7-2);

(3)  "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

(4)  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?

c.  You should determine whether the child's father and mother have ever been married to each other.  A valid marriage 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:

(1)  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 AskPPTAdjudication@state.gov;

(2)  See 8 FAM 304.1-3 and 8 FAM 304.1-4 for guidance on voidable and void marriages;

(3)  Absence of a marriage:

(a)  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 marriage 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, and/or consent of the father's wife);

(b)  Some states and countries grant all children equal rights, regardless of the parent's marital status.  For purposes of “old” INA 309(a) (and former INA 321), the fact of a blanket legitimation provision for all children does not end the derivative citizenship inquiry.  Instead, where a jurisdiction requires an affirmative act to legitimate an out-of-wedlock child, paternity is not established without the requisite act, even if the jurisdiction has enacted a law to place children on equal footing without regard to the circumstances of their birth.  In such cases, the child may be considered to have established "paternity by legitimation" under "old" INA 309(a) (and former INA 321) where the father has taken any necessary affirmative acts required by the local jurisdiction to legitimate the child--such as having their name added to the birth record, marrying the child’s mother, or petitioning the court for a paternity finding—before the child’s 21st birthday.  As is true for all applicants, the child must also prove a biological relationship between the U.S. citizen parent(s).  The biological relationship does not need to be established prior to the child’s 21st birthday; and

(c)  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).

d. Adoption by biological father:

(1)  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

(2)  Before issuing a U.S. passport or CRBA, cases that involve adoption by the biological parent should be referred to AskPPTAdjudication@state.gov.

e. Father's physical presence requirements:

(1)  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 five of which were after reaching the age of 14;

(2)  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 five years, at least two of which were after reaching the age of 14; and

(3)  For children acquiring citizenship under "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 five of which were after the age of 14.

8 FAM 301.7-9(E)  Birth Abroad Out of Wedlock to a U.S. Citizen Mother and an Alien Parent Under INA 309(c)

(CT:CITZ-54;   04-09-2021)

a. A child born abroad out of wedlock on or after December 24, 1952 and before June 12, 2017 to a U.S. citizen mother acquires U.S. citizenship if the mother was physically present continuously for one 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.

b. 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).

c.  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.

d. 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 five years 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.

UNCLASSIFIED (U)