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U.S. Citizenship by Birth in the United States

Written by Henry J. Chang

General Rule

The English common law rule, under which a person's citizenship was determined by the place of his birth, was known as jus soli. The United States generally follows this rule. Authority for this rule is found in the Fourteenth Amendment to the U.S. Constitution, which states that: "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 Supreme Court endorsed the universality of this rule in U.S. v. Wong Kim Ark 169 U.S. 649, 18 S. Ct. 4561142 L. Ed. 890 (1898). The constitutional rule of jus soli has been construed generously and almost always has endowed all persons born in the United States with United States citizenship.

The Fourteenth Amendment does not define the "United States". However, the Fourteenth Amendment clearly includes all fifty states and the District of Columbia. The jus soli rule was repeated in the Nationality Act of 1940. The statute also defined the United States as including "the continental United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands of the United States." The statute therefore expanded the applicability of the jus soli rule to Puerto Rico and the Virgin Islands. The Act of 1952 included Guam within its definition of the United States. Also, the Northern Mariana Islands, a segment of the former UN Trusteeship, thereafter elected to become a self-governing Commonwealth of the United States, and a Covenant of Political Union gave American citizenship to the indigenous inhabitants of the Marianas.

These territorial areas traditionally included "the ports, harbors, bays and other enclosed areas of the sea along its coast and a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles." However, that rule was changed by a Presidential Proclamation in 1988 which defined the territorial sea of the United States as extending twelve nautical miles from the baselines of the United States as determined in accordance with international law.

A person born on a foreign vessel lying in U.S. port or sailing in the territorial sea of the United States acquires United States citizenship at birth. Howver, U.S. citizenship is not conferred upon a child was born to alien parents on a vessel bound for the United States which had not yet reached the twelve nautical mile limit. Similarly, a child born on a plane in the United States or flying over its territory would acquire United States citizenship at birth. However, the citizenship of the child is not affected by the nationality or registry of the vessel. Birth on U.S. vessel outside the territorial jurisdiction of the United States does not confer U.S. citizenship upon the child of alien parents.

U.S. installations located in foreign countries are not regarded as part of the United States for the purposes of the Fourteenth Amendment and the related statutes. A child born in the U.S. Naval Station or a U.S. embassy or consulate in a foreign country would not acquire United States citizenship at birth.

In almost all cases, the constitutional rule of universal citizenship for all persons born in the United States is unaffected by the status of their parents. U.S. citizenship may be acquired by children born in the United States, even if their parents are illegal aliens at the time the child was born.

The immigration statute has provided for a presumption of native birth for children of unknown parentage found in the United States since January 13, 1941 when the Nationality Act of 1940 was enacted. The Act of 1952 replaced this presumption with a similar provision when it was enacted on December 24, 1952. The Nationality Act of 1940 Act did not specify the age at which the "child" must have been "found" or the duration of the presumption. The Act of 1952 now presumes the citizenship of a child whose parentage is unknown if the child is found in the United States after December 23, 1952 while under the age of 5 years, unless such person's birth outside the United States is shown before he attains the age of 21. In the absence of such a showing the child is conclusively presumed to be a citizen of the United States.

Exceptions to the General Rule

Foreign Sovereigns, Foreign Diplomats and their Families

The general rule does not apply to foreign sovereigns, accredited foreign diplomats or their families since under International law they are not subject to the law of the foreign country which has received them. Accordingly, children born in the United States to such individuals are not entitled to United States citizenship. However, these children may be eligible for lawful permanent residence. The INS position is that such a birth in the United States creates only eligibility for permanent resident status, and that such status is abandoned if the children return to their native country. Such children may apply for the creation of a record of lawful permanent residence.

Foreign sovereigns are deemed to include only heads of a foreign state on an official visit to this country; they do not include those who are not visiting this country in their official capacity as heads of their government. Accredited diplomatic officials are only those with recognized diplomatic status and immunity, and include ambassadors, envoys extraordinary ministers planipotentiary, ministers resident, commissioners, charges d'affaires, counselors, agents, secretaries of embassies and legations, attachés, and other employees attached to the staff of the embassy or legation, as well as members of the Delegation of European Communities. The term also includes persons with comparable diplomatic status and immunity who are accredited to the United Nations or to the Organization of American States, and other individuals who are accorded comparable diplomatic status.

Birth in Certain United States Possessions or Former Possessions

The general rule of jus soli is not universally applied to persons born in United States possessions or former possessions including: Puerto Rico, Virgin Islands, Guam, American Samoa and Swains Island, Canal Zone, Philippine Islands, the former Trust Territories (including Micronesia, The Marshall Islands, Palau, and the Northern Marianas). Birth in these possessions or former possessions does not guarantee U.S. citizenship in all cases. However, the law regarding U.S. citizenship in this area is too complex to discuss here. Please request a formal consultation in such a case.

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