Dual Citizenship FAQ http://www.richw.org/dualcit/

US law
relating to
dual citizenship

Last revised: 2011-01-03 18:52:43-0800


3 January 2011

IMPORTANT ANNOUNCEMENT


Due to increasing demands on my time and energy, I will no longer be actively maintaining the material on this site. Instead, I will be putting my efforts into improving the coverage of dual citizenship issues on Wikipedia.

I have already done considerable work on the Wikipedia articles about U.S. v. Wong Kim Ark, Afroyim v. Rusk, and Vance v. Terrazas. My longer-term goal is to raise the level and quality of coverage of this subject on Wikipedia to the point where I can convert my FAQ site into a portal pointing to Wikipedia articles and other source material.

Additionally, I will no longer be able to take the time to answer questions sent to me by e-mail. If you have a specific problem or question regarding dual citizenship, I would advise you to find a knowledgeable and experienced immigration lawyer (sorry, no, I don't have any specific person in mind to refer you to), or look for online discussion groups where you can ask your questions.

(Please note that the "discussion" or "talk" pages associated with Wikipedia articles are intended for use by editors working on the content of the articles. Please do not use Wikipedia talk pages as discussion forums to ask questions about citizenship or immigration issues.)


US Constitution

Statutes

Regulations


14th Amendment

The first sentence of the 14th Amendment to the Constitution -- often called the "citizenship clause" -- reads as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The original intent of this provision was to guarantee citizenship to the former slaves and their descendants following the Civil War. However, the Supreme Court held in U.S. v. Wong Kim Ark (1898) that the "citizenship clause" applied to anyone born in the US, of any ethnicity or national origin -- and, in Afroyim v. Rusk (1967) and Vance v. Terrazas (1980), that the clause prevented Congress from revoking a person's US citizenship without evidence of his or her intent to give up said citizenship.

The portion of the citizenship clause dealing with US jurisdiction excludes the US-born children of foreign diplomats stationed in the US and holding "diplomatic immunity". If US territory were to come under foreign occupation during wartime, this language would presumably also exclude children born on occupied soil to nationals of the occupying country. Otherwise, any child born in the US is a US citizen by birth, regardless of the citizenship or immigration status of the child's parents.

In an effort to curb illegal immigration to the US, several proposals to amend or reinterpret the 14th Amendment's citizenship clause have been introduced in recent Congresses. Most of these proposals would redefine the concept of "jurisdiction" so that a US-born child would have automatic citizenship only if at least one parent were a US citizen or permanent resident ("green card holder"). So far, all such proposals have died in committee; none has ever been brought to the floor for a vote by either house of Congress. Even if a bill of this sort were to become law, it would almost certainly be challenged in the courts and could very possibly be declared unconstitutional.


Immigration and Nationality Act

The US statutes on immigration and citizenship are codified in the Immigration and Nationality Act, commonly abbreviated as the INA.

The text of the INA may be found in Title 8 of the United States Code -- generally abbreviated as 8 USC. It needs to be kept in mind, however, that 8 USC is not the primary, authoritative version of the INA. Many titles (volumes) of the United States Code have been "enacted as positive law" -- meaning that the version of the law appearing in the US Code is current and correct by definition -- but Title 8 is not one of them.

For this reason, any proper citation of an item in US immigration and citizenship law will always refer to the appropriate section of the INA. Unfortunately, the section numbers in the INA do not correspond in any rational way to the section numbers in 8 USC. In this FAQ, references to the INA will be cross-referenced to the US Code version as well.


US citizenship vs. US nationality

US law makes a distinction between "citizenship" and "nationality." All US citizens are also US nationals; however, some US nationals are not US citizens.

The term "national of the United States" is defined in Section 101(a)(22) of the INA [8 USC § 1101(a)(22)] as "a person who, though not a citizen of the United States, owes permanent allegiance to the United States".

Section 308 of the INA [8 USC § 1408] says (more or less) that a person born in an "outlying possession" of the US -- or a foreign-born child of such a person -- is a US national, but not a US citizen. At the present time, the only "outlying possessions" of the US, as defined in 8 USC § 1101(a)(29), are American Samoa and Swains Island (in the South Pacific).

Note that people born in the following places are defined in Sections 302-307 of the INA [8 USC §§ 1402-1407] to be US citizens: Puerto Rico; the Canal Zone; Alaska and Hawaii (before they became states); the US Virgin Islands; and Guam.

Although most references in this FAQ to US "citizenship" should, for the sake of completeness, technically refer to US "nationality", I have chosen in general to use the more common term in the interests of clarity.


Citizenship by birth (INA § 301, 8 USC § 1401)

The US law on citizenship by birth incorporates two traditional legal principles:

Each of these principles is subject to certain restrictions. For example, children born in the US to foreign diplomats are not US citizens. Also, children born abroad to parents who have US citizenship but have never lived in the US are not US citizens (this rule being designed to prevent the proliferation of endless generations of foreign-born and -raised "Americans").

Many dual-citizenship situations result from the interaction of two countries' implementations of ius soli and/or ius sanguinis in their respective citizenship laws. For example, a child might acquire the citizenship of the country in which he was born (via ius soli), and also the citizenship of his parents' country (via ius sanguinis), and as a result start life as a dual citizen.

Section 301 of the INA [8 USC § 1401] defines the following classes of people as having US citizenship from the time of birth:

The only part of this section that is mandated by the 14th Amendment is the part giving citizenship to anyone born in the US and subject to its jurisdiction. The Supreme Court, in Rogers v. Bellei, held that the citizenship status of a person born outside the US to an American parent is not constitutionally protected.

Note that children born in the US to tourists -- or even to illegal aliens -- are US citizens by birth. Some politicians have proposed changing the law to deny citizenship to US-born children unless at least one parent is a US citizen or permanent resident alien ("green card" holder). However, since such children are guaranteed citizenship by the 14th Amendment to the Constitution (see the Supreme Court's rulings in U.S. v. Wong Kim Ark and Afroyim v. Rusk), it is unlikely that this part of the INA could be successfully changed without another amendment to the Constitution. Even attempts to deny citizenship to such children by redefining them as not being subject to US jurisdiction (as proposed, for instance, by various bills in the current Congress) would probably have a rough time in the courts on account of the Wong Kim Ark precedent.

Under certain conditions, children born outside the US may have US citizenship by birth. This depends on whether one or both parents have US citizenship, how long (if at all) the American parent(s) lived in the US prior to the child's birth, and whether the parents were married to each other or not. The rules have changed several times during the 20th century (mostly in a more liberal direction), so the exact date of one's birth can also be important when determining a claim to citizenship by descent.

Under the current law, if both parents are US citizens and are married, then the child is a US citizen if either parent had a "residence" in the US at any time in his or her life prior to the child's birth. There is no specific minimum period of time in the law for how long a parent must have been in the US in order for his/her status to be accepted as having been "residence" in the US.

If one parent is a US citizen, and the other is not, and the parents are married, then the current law says the child is a US citizen if the American parent was physically present in the US for one or more periods of time totalling at least five years, at some time or times in his or her life prior to (but not necessarily immediately prior to) the child's birth. Additionally, at least two years out the required five years of physical presence must have taken place after the parent's 14th birthday; thus, for example, a parent who was born and grew up in the US, but who left before reaching age 16 and never returned, doesn't meet the requirement.

Prior to 14 November 1986, the physical presence requirement in this case was ten years (instead of five) -- including five years (instead of two) spent after the parent's 14th birthday. The requirement was reduced in 1986, but the change did not retroactively make US citizenship available to people born previously who did not meet the old requirement. (Congress's intent not to make this change retroactive was affirmed in 1988 with the passage of Public Law 100-525, § 8(d), 102 Stat. 2619).

Note that physical presence does not require residence in the US. Time spent on vacation in the US may be counted toward the five-year total. Indeed, Americans living abroad with foreign-born children would be well advised to keep track of the exact dates of each trip the children make to the US, in case the question of a grandchild's US citizenship should arise sometime in the future. After we moved back to the US from Canada, I wrote up an affidavit detailing all the times each of my two children had been in the US; I signed it under oath before a notary, sealed it in an envelope, and have filed it with our important documents for possible future use. I plan to redo each child's affidavit after his/her 16th birthday.

If a non-US-born child's parents are not married, the child's claim to US citizenship depends on whether the American parent is the mother or the father. Section 309 of the INA [8 USC § 1409] grants US citizenship at birth to an "illegitimate" child if his/her American mother had previously spent at least one continuous full year in the US. If the child's American parent is his/her father, however, the child has US citizenship at birth only if the father's paternity is formally established and the father agrees in writing to support the child financially. This sex-based disparity was upheld by the Supreme Court in 2001 (Nguyen v. INS).

It is important to note that a foreign-born child whose parents have fulfilled the residency or physical presence requirements is a US citizen by birth. This citizenship is automatic; it is not dependent on the parents' registering the child with a US consulate (though such registration is strongly encouraged) or getting the child a US passport. The child's status as a US citizen is also not dependent on whether or not his/her birth country tolerates dual citizenship.


Citizenship by naturalization (INA § 337, 8 USC § 1448)

A description of the US naturalization oath is given in Section 337(a) of the INA [8 USC § 1448(a)]. Of particular relevance to the dual citizenship issue is that, as part of the oath, a new citizen must pledge "to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the applicant was before a subject or citizen."

In practice, it is unclear what if any true legal significance this statement has any more. The US does not require a new citizen to take any formal steps to renounce his old citizenship before officials of the "old country"; and when the other country continues to claim a naturalized US citizen as one of its own, current US policy recognizes that such a person may have to use a passport from the other country in order to visit there, and such an action does not put the person's US citizenship in jeopardy.

At one time, the US took the position that anyone who wished to renounce his prior citizenship in connection with US naturalization had an inherent, unquestionable right to do so. Well into the 19th century, many countries had no provisions at all for renouncing citizenship and did not even acknowledge that their citizens or subjects had any such right. This is, no doubt, why the renunciatory clause in the US naturalization oath is not linked to any additional requirement to give up one's old citizenship in accordance with another country's laws; as far as the US was concerned, the renunciatory statement in its own naturalization oath was sufficient, and all other countries had an obligation to respect it. In recent years, the State Department has apparently decided to take a more pragmatic and realistic stance on this issue.

Some efforts have been made in Congress, in recent years, to criminalize dual citizenship by making it a felony for a naturalized US citizen to acknowledge or exercise his/her old citizenship. So far, however, no such legislation has been enacted into law.


Loss of citizenship (INA § 349, 8 USC § 1481)

Section 349 of the INA [8 USC § 1481] specifies several conditions under which US citizenship may be lost. These include:

The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship; however, the Supreme Court overturned this concept in the Afroyim and Terrazas cases, and Congress amended the law in 1986 to require that loss of citizenship would result only when a potentially "expatriating" (citizenship-losing) action was performed voluntarily and "with the intention of relinquishing United States nationality".

On 16 April 1990, the State Department adopted a new policy on dual citizenship, under which US citizens who perform one of the potentially expatriating acts listed above are normally presumed not to have done so with intent to give up US citizenship. Thus, the overwhelming majority of loss-of-citizenship cases nowadays will involve people who have explicitly indicated to US consular officials that they want to give up their US citizenship.


1978 citizenship law amendments (Pub.L. 95-432)

On 10 October 1978, President Carter signed Public Law 95-432 (92 Stat. 1046; 1978 U.S. Code Congressional and Administrative News 2521). This bill repealed several provisions which had previously allowed revocation of US citizenship.

Some of the provisions abolished by Pub.L. 95-432 had already been rendered unenforceable by the Supreme Court. For example, the bill repealed provisions revoking citizenship for voting in foreign elections (Afroyim v. Rusk), moving abroad following naturalization (Schneider v. Rusk), and desertion from the armed forced during wartime (Trop v. Dulles) were all repealed.

Certain other provisions were also repealed, however -- not because of adverse Supreme Court rulings, but because (judging from the legislative history) Congress appears to have decided these provisions were rarely used and/or were not worth keeping. For example, Pub.L. 95-432 repealed provisions revoking citizenship of foreign-born US citizens who failed to move back to the US as adults (a rule upheld by the Supreme Court in Rogers v. Bellei); children who failed to move back to the US as adults after their parents had lost or given up US citizenship (a weaker version of the rule previously struck down in Perkins v. Elg); and dual nationals who lived abroad and had voluntarily claimed benefits of a foreign citizenship as adults. It should be noted that the abolition of these provisions was not made retroactive; people who had lost US citizenship under these provisions did not automatically get it back.


1986 citizenship law amendments (Pub.L. 99-653)

On 14 November 1986, President Reagan signed Public Law 99-653 (100 Stat. 3655; 1986 U.S. Code Congressional and Administrative News 6182). This bill amended the INA to conform to the requirements of various Supreme Court decisions on loss of US citizenship.

The most significant change made by Pub.L. 99-653 was to the preamble of Section 349 of the Immigration and Nationality Act [8 USC § 1481]. The revised wording made it clear that an action, in order to result in loss of citizenship, needed to be performed voluntarily and with the intention of giving up US citizenship. This change brought the law into line with the Supreme Court's ruling in Vance v. Terrazas.

Pub.L. 99-653 also revised the conditions under which foreign military service could result in loss of citizenship. Previously, a person could lose US citizenship through foreign military service unless said service were approved in advance by US officials. Also, a US citizen who entered a foreign military service prior to age 18 could lose his US citizenship if he had been given an option by said foreign country to leave its army at age 18, and failed to do so. All this was replaced by a new provision, under which foreign military service would result in loss of US citizenship only if performed voluntarily and with intent to relinquish US ties (see above) -- and, additionally, only if the person served as an officer, and/or if the foreign army were engaged in hostilities against the US. Note that the Supreme Court had previously ruled, in Mandoli v. Acheson, that coerced foreign military service could not result in loss of US citizenship.

Previously, if a US citizen were also a citizen of a foreign country, had spent one or more periods of time in that country totalling at least ten years, and performed any of the listed actions that could result in loss of US citizenship, the action in question would be conclusively presumed to have been performed voluntarily and without duress (i.e., the person in question would not have a legal right to present contrary evidence in a court case). This provision had been put on shaky ground as a result of the Terrazas ruling, and it was repealed by Pub.L. 99-653.

Prior to Pub.L. 99-653, a naturalized citizen who moved away from the US and set up permanent residence abroad within five years following naturalization risked revocation of his citizenship -- on the grounds that his promise (made on the citizenship application) to reside permanently in the US after naturalization had been made in bad faith. This five-year period was reduced to one year. (In 1994, this provision was repealed altogether.)


1994 citizenship law amendments (Pub.L. 103-416)

On 25 October 1994, President Clinton signed Public Law 103-416 (108 Stat. 4305), the "Immigration and Nationality Technical Corrections Act of 1994". This bill made several notable changes to the laws pertaining to naturalization.


2000 citizenship law amendments (Pub.L. 106-395)

On 30 October 2000, President Clinton signed Public Law 106-395, the "Child Citizenship Act of 2000". This bill, which took effect on 27 February 2001, made two changes to the laws pertaining to naturalization.

Note, in both of these cases, that the child's US citizenship is not retroactive to his/her birth. Thus, there is still a difference between these situations and the "natural-born" cases provided for by INA 301 [8 USC § 1401].

Information about the implementation of the Child Citizenship Act of 2000 can be found on the USCIS's Web site (http://www.uscis.gov).

Proposed changes (109th Congress)

This is a partial list (as of 5 October 2008) of citizenship-related bills introduced in the current (110th) Congress.

Bills are normally designated "H.R." or "S.", depending (respectively) on whether they were first introduced in the House of Representatives or the Senate. Proposed amendments to the Constitution are introduced as "joint resolutions" and are designated "H.J.Res." or "S.J.Res.", again depending on which house they were introduced in.

Please note that just because a bill is introduced in Congress does not by any means ensure that it will inevitably be enacted into law. Indeed, many of the following bills are simply reintroductions of bills from previous Congresses which died in committee without even coming to a vote.

None of the above bills have been reported out of legislative committees or voted upon by either house of Congress.


US passport requirements (22 CFR § 53)

Section 215(b) of the INA [8 USC § 1185(b)] requires, in general, that any US citizen who is either leaving or entering the US must be in possession of a valid US passport. This requirement applies even in the case of a dual citizen travelling between the US and his other country of citizenship. A person in such a situation may therefore need to take two passports for the trip -- one from the US, and one from the other country.


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