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8 FAM 102
Authorities

8 FAM 102.1

Statutory Authorities

(CT:CITZ-15; 01-23-2019)
(Office of Origin: CA/PPT/S/A)

8 FAM 102.1-1 List of statutory Authories

(CT:CITZ-15; 01-23-2019)

5 U.S.C. Appendix Sections 1-12 (Inspector General Act of 1978) provides the authorities and responsibilities of the Office of the Inspector General to investigate fraud and other criminal acts.

8 U.S.C. 1101 Definitions.

8 U.S.C. 1103(a)(1) (Immigration and Nationality Act (INA) 103(a)(1)) provides that:

The Secretary of Homeland Security shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, except insofar as this chapter or such laws relate to the powers, functions, and duties conferred upon the President, Attorney General, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling.

8 U.S.C. 1104(a)(1) (INA 104(a)(1), as amended), empowers the Secretary to:

(1) Administer and enforce nationality and immigration laws relating to the powers and authorities of diplomatic and consular officers abroad;

(2) Administer the powers, duties and functions of the administrator; and

(3) Determine the nationality of a person not in the United States.

8 U.S.C. 1104(a)(3) Powers and Duties of Secretary of State The Secretary of State shall be charged with the administration and the enforcement of the provisions of this chapter and all other immigration and nationality laws relating to the determination of nationality of a person not in the United States;

8 U.S.C. 1104(c) Powers and Duties of the Secretary of State Within the Department of State there shall be a Passport Office;

8 U.S.C. 1185(b) Travel Control of Citizens and Aliens

8 U.S.C. 1185 Note Western Hemisphere Travel Initiative

8 U.S.C. 1401 (INA 301):

(1) INA 301(a) provide that persons born in the United States and subject to its jurisdiction are nationals and citizens of the United States at birth. When enacted in 1952, INA 301 required a U.S. citizen married to an alien to have been physically present in the United States for ten years, including five after reaching the age of fourteen, to transmit citizenship to foreign-born children. The ten-year transmission requirement remained in effect from 12:01 a.m. Eastern Daylight Time December 24, 1952, through midnight November 13, 1986, and still is applicable to persons born during that period. As originally enacted, section 301(a)(7) stated:

Section 301. (a) The following shall be nationals and citizens of the United States at birth: (7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, that any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph.

(2) INA 301(b) provides that members of Indian, Eskimo, Aleutian, or other aboriginal tribe are nationals and citizens of the United States at birth;

(3) INA 301(c) was numbered INA 301(a)(3) before October 10, 1978;

(4) INA 301(d) was numbered INA 301(a)(4) before October 10, 1978;

(5) INA 301(g) is an amended version of former INA 301(a)(7):

(a) Pursuant to section 23(d) of Public Law 99-653, the Immigration and Nationality Act Amendments of 1986, the provisions of INA 301(g) apply to persons born on or after November 14, 1986;

(b) Public Law 430 of March 16, 1956 (70 Stat. 50, 8 U.S.C. 1401a) extended the application of INA 301(a)(7) (without amending it) to certain children of a citizen who served in the Armed Forces. It provides as follows (The reference to section 301(a)(7), was changed to 301(g) by Section 18(u)(2) of the Immigration and Nationality Act Amendments of 1981, Public Law 97-116 (Dec. 29, 1981).):

Section 301(a)(7) (now 301(g)) of the Immigration and Nationality Act shall be considered to have been and to be applicable to a child born outside of the United States and its outlying possessions after January 12, 1941, and before December 24, 1952, of parents one of whom is a citizen of the United States who has served in the Armed Forces of the United States after December 31, 1946, and before December 24, 1952, and whose case does not come within the provisions of section 201 (g) or (i) of the Nationality Act of 1940."

(c) November 6, 1966, Addition of Proviso Relating to Compilation of Physical Presence For Transmission, Public Law 89-770, (80 Stat. 1322) extending this benefit to employees of the U.S. Government and designated international organizations and dependent children to the 301(a)(7) proviso. The 1966 amendment was retroactive, benefiting any qualified person born on or after December 24, 1952;

(d) Section 12 of the Immigration and Nationality Act Amendments of 1986 (INAA) (Public Law 99-653 of November 14, 1986, 100 Stat. 3657) changed the parental citizenship transmission requirements from ten years of U.S. physical presence, five of which were after the age of 14, to five years of U.S. physical presence, two of which were after age 14. These provisions apply only to persons born on or after November 14, 1986; and

(e) October 24, 1988, Retroactivity of Amendment:

(i) The Immigration Technical Corrections Act of 1988 (Public Law 100-525 of October 24, 1988) added a new section 23 to the Immigration and Nationality Act Amendments of 1986 which states:

SEC. 23. (d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.

(ii) The effect of this amendment is to apply the reduced physical presence transmission requirements of the amended section INA 301(g) to persons born anywhere outside the United States at any time on November 14, 1986, rather than just to those born after 2:07 p.m. EST when the INA Amendments (INAA) originally were effective.

(6) INA 301(h) was added to INA 301 by section 101(a) of Public Law 103-416 (Immigration and Nationality Technical Corrections Act of October 25, 1994) (INTCA) for the purpose of providing equal treatment to women in conferring citizenship to children born abroad by allowing persons born abroad prior to May 24, 1934, to U.S. citizen mothers who had previously resided in the United States to acquire U.S. citizenship at birth with no retention requirements. Because INA 301(h) is retroactive, subsections (b) through (d) of section 101 of INTCA also addressed questions that arise as a result as follows:

"WAIVER OF RETENTION REQUIREMENTS - Any provision of law (including section 301(b) of the Immigration and Nationality Act (as in effect before October 10, 1978) and the provisos of section 201(g) of the Nationality Act of 1940 that provided for a person's loss of citizenship or nationality if the person failed to come to, or reside or be physically present in, the United States shall not apply in the case of a person claiming United States citizenship based on such person's descent from an individual described in section 301(h) of the Immigration and Nationality Act (as added by subsection (a)).

"RETROACTIVE APPLICATION:

(1) Except as provided in paragraph (2), the immigration and nationality laws of the United States shall be applied (to persons born before, on, or after the date of the enactment of this Act) as though the amendment made by subsection (a), and subsection (b), had been in effect as of the date of their birth, except that the retroactive application of the amendment and that subsection shall not affect the validity of citizenship of anyone who has obtained citizenship under section 1993 of the Revised Statutes (as in effect before the enactment of the Act of May 24, 1934 (48 Stat. 797)); and

(2) The retroactive application of the amendment made by subsection (a), and subsection (b), shall not confer citizenship on, or affect the validity of any denaturalization, deportation or exclusion action against, any person who is or was excludable from the United States under section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) (or predecessor provision) or who was excluded from, or who would not have been eligible for admission to, the United States under the Displaced Persons Act of 1948 or under section 14 of the Refugee Relief Act of 1953.

"APPLICATION TO TRANSMISSION OF CITIZENSHIP - This section, the amendments made by this section, and any retroactive application of such amendments shall not effect (sic) any residency or other retention requirements for citizenship as in effect before October 10, 1978, with respect to the transmission of citizenship."

8 U.S.C. 1401 (Retention Provisions):

(1) INA 301(a):

(a) To keep their citizenship, persons who acquired U.S. citizenship under section INA 301(a)(7) were required to be physically present in the United States continuously for 5 years between ages 14 and 28; and

(b) In an effort to make certain that the person would actually be in the United States for a substantial period of time, the INA required continuous physical presence rather than the period of residence specified in the Nationality Act of 1940 and section 1993 of the Revised Statutes, as amended.

(2) INA 301(b):

(a) The text of section INA 301(b), as originally enacted, stated that:

Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State(s) at least five years: Provided, that such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years. Absences totaling in the aggregate less than twelve months did not serve to break ones continuous physical presence. (Section 16 of the Action of September 11, 1957.)

(b) Public Law 92-584 amended section 301(b) INA effective October 27, 1972, to read as follows (86 Statutes at Large 1289):

Any person who is a national and citizen of the United States under paragraph (7) of subsection (a) shall lose his nationality and citizenship unless (1) he shall come to the United States and be continuously physically present therein for a period of not less than two years between the ages of fourteen years and twenty-eight years; or, if (2) the alien parent is naturalized while the child is under the age of eighteen years and the child begins to reside permanently in the United States while under the age of eighteen years. In the administration of this subsection absences from the United States of less than sixty days in the aggregate during the period for which continuous physical presence in the United States is required shall not break the continuity of such physical presence.

(c) 1978 Repeal of INA 301(b) prospectively: On October 10, 1978 the retention provisions of the Immigration and Nationality Act (subsections (b), (c), and (d) of INA 301) were repealed by Public Law 95-432 (92 Stat. 1046) thus eliminating the physical presence requirement for retention of U.S. citizenship. This change was prospective in nature. It did not reinstate as citizens those who had ceased to be citizens by the operation of section 301(b) as previously in effect. INA 301(a)(3), INA 301(a)(4), and INA 301(a)(7) were renumbered INA 301(c), INA 301(d), and INA 301(g), respectively:

(i) As a result, persons born on or after October 10, 1952, who acquired U.S. citizenship through birth abroad to one U.S. citizen parent are not required to be physically present in the United States to retain U.S. citizenship;

(ii) Because the repeal was prospective in application, it did not benefit persons born on or after May 24, 1934, and before October 10, 1952; and

(iii) The intent of Congress in repealing section 301(b) is made clear in The Report of the House Judiciary Committee (House Report 95-1493) which stated that Congress desired to repeal the section prospectively in order not to provide a basis to restore citizenship to those who lost their citizenship prior to enactment of the bill.

(3) INA 301(c) applied the requirements of INA 301(b) to persons born between May 24, 1934, and December 24, 1952, who were subject to, but had not complied with, and did not later comply with, the retention requirements of section 201(g) or (h) NA.

8 U.S.C. 1402 - Persons born in Puerto Rico on or after April 11, 1899

8 U.S.C. 1403 - Persons born in the Canal Zone or Republic of Panama on or after February 26, 1904

8 U.S.C. 1404 - Persons born in Alaska on or after March 30, 1867

8 U.S.C. 1405 - Persons born in Hawaii

8 U.S.C. 1406 - Persons living in and born in the Virgin Islands

8 U.S.C. 1407 - Persons living in and born in Guam

8 U.S.C. 1408 - Nationals but not citizens of the United States at birth

8 U.S.C. 1409 (INA 309) - Children born out of wedlock. INA 309 was substantively amended effective November 14, 1986 by the Immigration and Nationality Act Amendments of 1986, Public Law 99-653 (Nov. 14, 1986) (INAA). As originally enacted there were no specifically provided effective dates in the INAA for the INA 309 amendments. In 1988, however, Congress retroactively added effective dates to the INAA as if they had been included in the INAA as originally enacted. The effective dates for the amendments to INA 309 were included in a new section 23(e) of the INAA. The text of old INA 309 is:

(a) The provisions of paragraphs (3), (4), (5) and (7) of section 301(a) (now paragraphs(c), (d), (e), and (g) of section 301), and of paragraph (2) of section 308, of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this Act, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.

(b) Except as otherwise provided in section 405, the provisions of section 301(a)(7) (now section 301(g)) 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 and while such child is under the age of twenty-one years by legitimation.

(c) Notwithstanding the provisions of subsection (a) of this section, a person born, on or after the effective date of this Act, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

8 U.S.S. 1435 (INA 324): The Immigration and Nationality Technical Corrections Act of 1994 (Public Law 103-416 of October 25, 1994) added subsection (d) to INA 324 allowing persons whose citizenship had ceased by operation of the former section 301(b) INA to have their citizenship restored prospectively by taking an oath of allegiance to the United States. The amendment to INA 324 went into effect on March 1, 1995.

8 U.S.C. 1504 (INA 361) Cancelation of U.S. Passports and Consular Reports of Birth, authorizes the Secretary of State to cancel any Report of Birth Abroad of a Citizen of the United States of America, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through, illegality or fraud.

8 U.S.C. 1732 Machine Readable, Tamper-Resistant Entry and Exit Documents;

8 U.S.C. 1737 Tracking System for Stolen Passports

10 U.S.C. 1044(a) authorizes certain personnel to administer oaths

10 U.S.C. 1044(d) establishes that the signature without seal of an officer who is acting as notary, together with the title of office, is prima-facie evidence of authority that the signature is genuine, that the person holds the designated title, and that the person is authorized to perform a notarial act

18 U.S.C. 982 Criminal Forfeiture

18 U.S.C. 1001 Statements or Entries Generally

18 U.S.C. 1028 Fraud and Related Activity In Connection With Identification Documents and Information

18 U.S.C. 1028A Aggravated Identity Theft

18 U.S.C. 1073 Flight to Avoid Prosecution or Giving Testimony

18 U.S.C. 1541 Issuance without Authority

18 U.S.C. 1542 False Statement in Application and Use of Passport

18 U.S.C. 1543 Forgery or False Use of Passport

18 U.S.C. 1544 Misuse of Passport

22 U.S.C. 4 Passports

22 U.S.C. 211a, which sets forth the authority of the Secretary of State to grant, issue, and verify passports and, by inference, determine nationality in that regard generally. This authority relates to passports issued in the United States and U.S. passports issued abroad

22 U.S.C. 212, which states in part that only those owing allegiance, whether citizens or not, to the United States are entitled to a passport

22 U.S.C. 212b, Revocation or Denial of Passport in Case of Covered Sex Offenders without a Passport that has the Placement of Unique Passport Identifiers, which prohibits the issuance of a passport without a unique identifier to certain covered sex offenders and authorizes revocation of passports previously issued to such offenders that do not contain the unique identifier

22 U.S.C. 213, which requires a written application before a passport is issued and that the initial passport application be duly verified by ... oath before a person authorized and empowered by the Secretary of State to administer oaths

22 U.S.C. 213 Notes - Two Parent Consent Requirement - required the Secretary of State to issue regulations providing that the following requirements be met before a minor under the age of 14 was issued a passport

22 U.S.C. 214, as amended, which requires payment of fees for the execution of an application and the issuance of a passport

22 U.S.C. 214a, which authorizes a refund for fees collected erroneously

22 U.S.C. 217a, as amended, which provides that a passport will be valid for ten years unless otherwise provided by regulation

22 U.S.C. 218, which requires, All persons who grant, issue, or verify passports to make regular reports to the Secretary of State with an appropriate accounting of pertinent information

22 U.S.C. 288, states that:

The term "international organization" means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive Order as being entitled to enjoy the privileges, exemptions, and immunities provided in this subchapter.

22 U.S.C. 277d34 - American-Mexican Boundary Treaty, authorization for carrying out treaty provisions; investigations; land acquisition, purposes; damages, repair or compensation

22 U.S.C. 2670(j) Emergency Medical and Dietary Assistance

22 U.S.C. 2670(m) Authority to Establish, Maintain and Operate Passport Agencies

22 U.S.C. 2671(d) Repatriation Loan Program

22 U.S.C. 2705, Documentation of Citizenship, provides that a U.S. passport, during its validity period (and is issued for the maximum period allowed by law), and a Report of Birth Abroad of a Citizen of the United States, have the same force and effect as proof of citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction

22 U.S.C. 2709 Special Agents Investigation Concerning Illegal Passport Issuance or Use. This grants special agents of the Department of State and the Foreign Service authority to conduct investigations concerning illegal passport issuance or use

22 U.S.C. 2714 Denial of Passports to Certain Convicted Drug Traffickers

22 U.S.C. 2714a, which authorizes revocation or denial of a passport if the applicant does not provider her/his Social Security Number or if the applicant has a seriously delinquent tax debt

22 U.S.C. 2714a(e) Revocation or Denial of a Passport in Case of Individual with Seriously Delinquent Tax Debt

22 U.S.C. 2714a(f) Revocation or Denial of Passport in Case of Individual Without Social Security Account Number

22 U.S.C. 2721 Impermissible Basis for Denial of Passports

22 U.S.C. 4802(a)(2)(B)(x) authorizes the Secretary of State to conduct investigations relating to illegal passport issuance or use

22 U.S.C. 4807 Responsibility of Secretary of State - Conduct of Investigation Concerning Illegal Passport Issuance or Use

22 U.S.C. 4808 governs the establishment of the passport security program in the Department of State within the Bureau of Diplomatic Security (DS)

22 U.S.C. 6039(E) requires that a passport applicant provide her/his SSN (if the applicant has one) when she/he applies for a passport or face penalty by the Internal Revenue Service (IRS)

26 U.S.C. 7345, which authorizes revocation or denial of a passport if the applicant has a seriously delinquent tax debt

28 U.S.C. 1783 Subpoena of Person in Foreign Country

42 U.S.C. 652(k) Duties of the Secretary (of Health and Human Services) Denial of Passports for Non-Payment of Child Support. This prohibits any individual who has been certified to the Secretary of State by the Secretary of Health and Human Services (HHS) as being in arrears on child support payments by an amount exceeding $5,000 from receiving a United States passport.  That amount was reduced to $2,500 on October 1, 2006 pursuant to Section 7303 of Public Law 109-171, which amended 42 U.S.C. 652(k)

48 U.S.C. 1801 (Article III, CNMI Covenant, sections 301, 302, 303, and 304.) Approval of Covenant to Establish Commonwealth of Northern Mariana Islands. See also pages 497-500, Appendix Roman Number V, of the 104th Congress, 1st Session, Committee Print, Immigration, and Nationality Act (10th Edition).

Act of March 2, 1907 Residence and Protection (34 Statutes at Large 1228). In 1907 Congress imposed requirements on U.S. citizens residing abroad who acquired citizenship under Section 1993 of the Revised Statutes (RS) of 1874 and who wished to avail themselves of the protection of the United States Government. A U.S. citizen who did not comply with this law did not lose U.S. citizenship but lost the right to diplomatic protection. Section 6 of the Act of March 2, 1907, (34 Statutes at Large 1228) stated that:

Act of May 24, 1934 (Retention Provisions) (48 Statutes at Large 797):

(1) When it amended section 1993 RS to give women the right to transmit U.S. citizenship to their foreign-born children, Congress was concerned that a child with one citizen and one alien parent might have divided loyalties, particularly if the father was an alien through whom the child had acquired foreign nationality;

(2) To reduce conflicting ties of allegiance and to ensure that foreign-born children would regard themselves as Americans, section 1993 R.S., as amended, required such children to reside in the United States for at least 5 years before reaching age 18 and to take an oath of allegiance to the United States within 6 months after reaching age 21 or forfeit their citizenship;

(3) The retention requirements did not apply if both parents were U.S. citizens or if the child had been born out of wedlock to a U.S. citizen woman. In such cases, it was felt that foreign influences and ties would be less likely to occur and

(4) No one ceased to be a citizen because of the retention requirements of section 1993 R.S., as amended. This was because the Nationality Act of 1940 (NA) went into effect long before any child born on or after May 24, 1934 could have turned 21. Section 201(h) NA applied the requirements of section 201(g) NA for retaining citizenship to persons born abroad on or after May 24, 1934.

Civil Rights Act of April 9, 1866 (14 Statutes at Large 27) and, 2 years later, it was adopted as part of the 14th Amendment

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...

Nationality Act of 1940, Section 201, provided that persons born in the United States and subject to its jurisdiction and members of Indian, Eskimo, Aleutian, or other aboriginal tribe are nationals and citizens of the United States at birth

Nationality Act of 1940 (Retention Provisions) (54 Statutes at Large 1138). In the Nationality Act of 1940 (NA) the residence requirements of section 201 NA were less restrictive than the ones they replaced, and the requirement of an oath of allegiance at age 21 was eliminated:

(1) To retain U.S. citizenship acquired under section 201(g) NA, a person had to reside in the United States or its outlying possessions for periods totaling 5 years between ages 13 and 21 unless they were exempted from having to do so by the second paragraph of section 201(g) NA;

(a) The law stated that persons forfeited U.S. citizenship if:

(i) They failed to enter the United States by age 16; and

(ii) If, after entering the United States before that age, they abandoned their U.S. residence and remained abroad until it was no longer possible for them to complete a total of 5 years residence between ages 13 and 21.

(b) The same provisions and exemptions applied to persons in whose cases section 201(g) NA was made applicable by the first paragraph of section 205 NA.

(2) Section 201(h) NA applied the retention requirements of section 201(g) NA to persons who had acquired U.S. citizenship under section 1993, R.S., as amended by the act of May 24, 1934, and had been born to one citizen and one alien parent. Similar requirements applied to persons who acquired citizenship under section 201(i) NA, but no exemptions were provided for those persons;

(3) Exemptions: The retention requirements of section 201(g) NA did not apply if the person's citizen parent was, at the time of the child's birth, serving in the U.S. Armed Forces or engaged in certain specified employment abroad. In 1981, the Department determined that the child of an employee of a company founded by an association of American corporations to carry out a single business venture abroad for joint profit was exempt from the retention requirements of section 201(g) NA because such joint ventures are not separate legal entities for all purposes; and all of the contracting organizations had their principal offices in the United States, even though the sole office and the place of business of the joint venture were in a foreign country;

(4) Special provisions for veterans: 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.

(5) Repeal of section 201 NA and On-Going Cases: By the time the Nationality Act of 1940 was repealed on December 24, 1952, some persons subject to the retention requirements of section 201(g) NA, as made applicable by section 201(h), had reached the age of possible compliance with those requirements:

(a) Section 301(c) INA, as originally enacted, stated that section 301(b) INA applied to persons born abroad after May 24, 1934;

(b) Section 301(c) INA also indicated that the substitution of the retention provisions of section 301(b) INA for those of section 201(g) NA on December 24, 1952, did not affect the citizenship of persons who already had complied with section 201(g) NA;

(c) Persons under age 16 who had been born subject to the retention requirements of section 201(g) or (i) NA, and had not taken up residence in the United States, but who wished to keep their U.S. citizenship had no choice but to comply with section 301(b) INA; and

(d) Persons who had begun compliance with section 201(g)'s requirements could complete 5 years residence in the United States before reaching age 21 and retain their U.S. citizenship. However, if they failed to do so, they could opt to comply with the new retention requirements.

Revised Statutes Section 1992. The provisions of the Civil Rights Act of April 9, 1866 were reenacted in 1878. Section 1992 of the Revised Statutes was repealed by the Nationality Act of 1940

Revised Statutes Section 1993 provided that children born out of the limits and jurisdiction of the United States whose fathers were citizens of, and had resided in, the United States were at the time of their birth citizens of the United States

U.S. Constitution, 14th Amendment, provided 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...

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