How Your Child Born Abroad Becomes a U.S. Citizen
When your child is born in the United States, you do not worry about proving their citizenship. But what happens if you and your significant other are living abroad when your child is born? How does your child acquire U.S. citizenship then?
Congress has enacted immigration laws that allow children born outside the United States to a U.S. citizen parent to derive U.S. citizenship at birth if certain conditions are met. Children born abroad may qualify for one of several different categories of derivative U.S. citizenship. Each category has its own requirements.
Birth Abroad to a Married Couple
If you are a U.S. citizen married to another U.S. citizen and you give birth to a child abroad, immigration law states that your child may be a U.S. citizen as well. If either you or your spouse had a residence in the United States prior to the time that your child was born, then your child acquired citizenship at birth. A child born to a couple comprised of a U.S. citizen parent and a U.S. National can become a U.S. citizen at birth if the U.S. citizen was physically present in the United States for a continuous period of one year before the child’s birth. If you are a U.S. citizen and your spouse is not, or vice versa, then your child may also be a U.S. citizen at birth if the U.S. citizen parent meets the physical presence requirements under the law. Currently, the U.S. citizen parent must have a period of five years of physical presence, at least two of which have to have occurred after the age of fourteen. This is the rule for any child born on or after November 14, 1986. Children born prior to that time who believe that they acquired U.S. citizenship at birth may wish to consult with an immigration attorney to determine if they meet the criteria in place when they were born.
There is an important caveat for the transmittal of U.S. citizenship at birth. The U.S. citizen parent must be the genetic parent of the child. Also, the U.S. citizen parent must be the legal parent of the child according to the laws of the country where the child is born. A child born through Assisted Reproductive Technology (ART) to a U.S. citizen gestational mother who is not the genetic mother may be able to acquire U.S. citizenship at birth if the gestational mother is recognized as the child’s legal parent.
Birth Abroad to U.S. Citizen Mother Who Is Not Married
If you are an unmarried U.S. citizen and you give birth to a child abroad, your child may acquire U.S. citizenship at birth. Under U.S. immigration law, you may transmit U.S. citizenship to your child if you were physically present in the U.S. for a continuous period of one year prior to giving birth to your child. This one year can be at any time in your life. It does not need to be the year immediately before you give birth. You must be your child’s genetic or gestational mother and you must also be the legal parent of your child under local law at the time and place of your child’s birth.
Birth Abroad to U.S. Citizen Father Who Is Not Married
A U.S. citizen father can transmit U.S. citizenship to his child under U.S. immigration law. In order to do so, you will need to meet all of the following criteria:
- You must prove that you are your child’s father by clear and convincing evidence, such as a DNA test;
- You must prove that you were a U.S. citizen at the time that your child was born;
- You must prove that you were physically present in the United States for at least five years prior to your child’s birth. At least two of those years must have been after you reached 14 years old;
- You must agree in writing to provide financial support for your child until they reach 18 years of age; and
- Legal paternity must be established before your child’s eighteenth birthday. This could be accomplished by a Court order adjudicating paternity, legitimization under the laws of the country where your child lives or by your written acknowledgment of paternity signed under oath.
Other Mechanisms for Transmitting U.S. Citizenship to Your Child
There are other methods for children born abroad to U.S. parents to become U.S. citizens after birth. Adopted children can become U.S. citizens after the adoption process is complete and the child enters the United States as a Lawful Permanent Resident of the United States. You may be able to file an N-600 Application for Certificate of Citizenship for your child. Your child may even be able to claim U.S. citizenship if you do not meet the necessary residence requirements but your parent, the child’s grandparent, does meet the physical presence requirement. An immigration attorney can help you evaluate which route is best suited for your family.
What Can I do to Secure Proof of My Child’s U.S. Citizenship?
When your child is born you should immediately notify the U.S. Embassy or Consulate in your area and apply for a Consular Report of Birth Abroad of a Citizen of the United States (CRBA). According to U.S. immigration law, a CRBA is proof of U.S. citizenship. You may use your child’s CRBA to apply for a U.S. passport and to enroll your child in school. While the CRBA is proof of U.S. citizenship, it cannot be used for travel. It is highly advisable that you also obtain a U.S. passport for your child.
Contact Julie Beth Jouben P.A. for More Information about Child Migration
At Julie Beth Jouben, P.A., we can assist you in determining your children’s immigration status based upon their birth abroad. Call Julie Beth Jouben, P.A. at 727-449-9929 and get the answers to all of your immigration law questions. Whether you have an issue obtaining your green card, bringing a family member to live in the United States, investing in a U.S. business from abroad, applying for K-1visas, or naturalizing to become a U.S. citizen, we can give you the information that you need to make informed decisions.