8 FAM 300
(U) U.S. Citizenship and Nationality
8 FAM 301
(U) U.S. Citizenship
8 FAM 301.1
(U) Acquisition by Birth in the United States
(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 301.1-1 (U) Introduction
(CT:CITZ-1; 06-27-2018)
a. U.S. citizenship may be acquired either at birth or
through naturalization subsequent to birth. U.S. laws governing the
acquisition of citizenship at birth embody two legal principles:
(1) Jus soli (the law of the soil) - a rule of common
law under which the place of a persons birth determines citizenship. In
addition to common law, this principle is embodied in the 14th Amendment to the
U.S. Constitution and the various U.S. citizenship and nationality statutes;
and
(2) Jus sanguinis (the law of the bloodline) - a
concept of Roman or civil law under which a persons citizenship is determined
by the citizenship of one or both parents. This rule, frequently called
citizenship by descent or derivative citizenship, is not embodied in the
U.S. Constitution, but such citizenship is granted through statute. As U.S.
laws have changed, the requirements for conferring and retaining derivative
citizenship have also changed.
b. National vs. citizen: While most people and
countries use the terms citizenship and nationality interchangeably, U.S.
law differentiates between the two. Under current law all U.S.
citizens are also U.S. nationals, but not all U.S. nationals are U.S. citizens. The term national of the United States, as defined by statute (INA 101
(a)(22) (8 U.S.C. 1101(a)(22)) includes all citizens of the United States, and
other persons who owe allegiance to the United States but who have not been
granted the privilege of citizenship:
(1) Nationals of the United States who are not
citizens owe allegiance to the United States and are entitled to the consular
protection of the United States when abroad, and to U.S. documentation, such as
U.S. passports with appropriate endorsements. They are not entitled to voting
representation in Congress and, under most state laws, are not entitled to vote
in Federal, State, or local elections except in their place of birth. (See 7 FAM 012 and 7
FAM 1300 Appendix B Endorsement 09.);
(2) Historically, Congress, through statutes, granted
U.S. non-citizen nationality to persons born or inhabiting territory acquired
by the United States through conquest or treaty. At one time or other natives
and certain other residents of Puerto Rico, the U.S. Virgin Islands, the Philippines,
Guam, and the Panama Canal Zone were U.S. non-citizen nationals. (See
7 FAM 1120
and 7 FAM 1100 Appendix P.);
(3) Under current law, only persons born in American
Samoa and Swains Island are U.S. non-citizen nationals (INA 101(a)(29) (8
U.S.C. 1101(a)(29) and INA 308(1) (8 U.S.C. 1408)). (See 7 FAM 1125.);
and
(4) See 7 FAM 1126 regarding the citizenship/nationality status of
persons born on the Commonwealth of the Northern Mariana Islands (CNMI).
c. Naturalization Acquisition of U.S. Citizenship
Subsequent to Birth: Naturalization is the conferring of nationality of a
State upon a person after birth, by any means whatsoever (INA 101(a)(23) (8
U.S.C. 1101(a)(23)) or conferring of citizenship upon a person (see INA 310, 8
U.S.C. 1421 and INA 311, 8 U.S.C. 1422). Naturalization can be granted
automatically or pursuant to an application. (See 7 FAM 1140.)
d. Subject to the Jurisdiction of the United
States: All children born in and subject, at the time of birth, to the
jurisdiction of the United States acquire U.S. citizenship at birth even if
their parents were in the United States illegally at the time of birth:
(1) The U.S. Supreme Court examined at length the
theories and legal precedents on which the U.S. citizenship laws are based in
U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). In particular, the Court discussed
the types of persons who are subject to U.S. jurisdiction. The Court affirmed
that a child born in the United States to Chinese parents acquired U.S. citizenship even though the parents were, at the time, racially ineligible for
naturalization;
(2) The Court also concluded that: The 14th
Amendment affirms the ancient and fundamental rule of citizenship by birth
within the territory, in the allegiance and under the protection of the
country, including children here born of resident aliens, with the exceptions
or qualifications (as old as the rule itself) of children of foreign sovereigns
or their ministers, or born on foreign public ships, or of enemies within and
during a hostile occupation of part of our territory, and with the single
additional exception of children of members of the Indian tribes owing direct
allegiance to their several tribes. The Amendment, in clear words and in
manifest intent, includes the children born within the territory of the United
States, of all other persons, of whatever race or color, domiciled within the United States. Pursuant to this ruling:
(a) Acquisition of U.S. citizenship generally is not
affected by the fact that the parents may be in the United States temporarily
or illegally; and that; and
(b) A child born in an immigration detention center
physically located in the United States is considered to have been born in the United States and be subject to its jurisdiction. This is so even if the childs parents
have not been legally admitted to the United States and, for immigration
purposes, may be viewed as not being in the United States.
8 FAM 301.1-2 what is birth in
the united states?
(CT:CITZ-1; 06-27-2018)
a. INA 101(a)(38) (8 U.S.C. 1101 (a)(38)) provides that
the term United States, when used in a geographical sense, means the
continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin
Islands of the United States.
b. On November 3, 1986, Public Law 94-241, approving
the Covenant to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America, (Section 506(c)),took
effect. From that point on, the Northern Mariana Islands have been treated as
part of the United States for the purposes of INA 301 (8 U.S.C. 1401) and INA
308 (8 U.S.C. 1408) (see 8 FAM 302.1)
c. The Nationality Act of 1940 (NA), Section 101(d)
(54 Statutes at Large 1172) (effective January 13, 1941 until December 23,
1952) provided that the term United States when used in a geographical sense
means the continental United States, Alaska, Hawaii, Puerto Rico, and the
Virgin Islands of the United States. The 1940 Act did not include Guam or the
Northern Mariana Islands as coming within the definition of United States.
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See the text of the 1940 Act on the CA/OCS Intranet,
Acquisition of Citizenship, Legal and Regulatory Documents.
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d. Prior to January 13, 1941, there was no statutory
definition of the United States for citizenship purposes. The phrase in the
United States as used in Section 1993 of the Revised Statues of 1878 clearly
includes states that have been admitted to the Union (see 8 FAM 102.2).
e. INA 304 (8 U.S.C. 1404) and INA 305 (8 U.S.C. 1405)
provide a basis for citizenship of persons born in Alaska and Hawaii,
respectively, while they were territories of the United States.
8 FAM 301.1-3 Not Included in the
Meaning of "In the United States"
(CT:CITZ-1; 06-27-2018)
a. Birth on U.S. Registered Vessel On High Seas or in
the Exclusive Economic Zone: A U.S.-registered or documented ship on the high
seas or in the exclusive economic zone is not considered to be part of the
United States. Under the law of the sea, an Exclusive Economic Zone (EEZ) is a
maritime zone over which a State has special rights over the exploration and
use of natural resources. The EEZ extends up to 200 nautical miles from the
coastal baseline. A child born on such a vessel does not acquire U.S.
citizenship by reason of the place of birth (Lam Mow v. Nagle, 24 F.2d 316 (9th
Cir., 1928)).
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NOTE: This concept of allotting nations EEZs
to give better control of maritime affairs outside territorial limits gained
acceptance in the late 20th century and was given binding international
recognition by the United Nations Convention on the Law of the Sea (UNCLOS)
in 1982.
Part V, Article 55 of the Convention states:
Specific legal regime of the EEZ:
The EEZ is an area beyond and adjacent to the
territorial sea, subject to the specific legal regime established in this
Part, under which the rights and jurisdiction of the coastal State and the
rights and freedoms of other States are governed by the relevant provisions
of this convention.
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b. A U.S.-registered aircraft outside U.S. airspace is
not considered to be part of U.S. territory. A child born on such an aircraft
outside U.S. airspace does not acquire U.S. citizenship by reason of the place
of birth.
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NOTE: The United States of America is not a
party to the U.N. Convention on Reduction of Statelessness (1961). Article
3 of the Convention does not apply to the United States. Article 3
provides
For the purpose of determining the obligations
of Contracting States under this Convention, birth on a ship or in an
aircraft shall be deemed to have taken place in the territory of the State
whose flag the ship flies or in the territory of the State in which the
aircraft is registered, as the case may be.
This is a frequently asked question.
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c. Birth on U.S. military base outside of the United
States or birth on U.S. embassy or consulate premises abroad:
(1) Despite widespread popular belief, U.S. military
installations abroad and U.S. diplomatic or consular facilities abroad are not part
of the United States within the meaning of the 14th Amendment. A child born on
the premises of such a facility is not born in the United States and does not
acquire U.S. citizenship by reason of birth;
(2) The status of diplomatic and consular premises
arises from the rules of law relating to immunity from the prescriptive and
enforcement jurisdiction of the receiving State; the premises are not part of
the territory of the United States of America. (See Restatement (Third) of
Foreign Relations Law, Vol. 1, Sec. 466, Comment a and c (1987). See also,
Persinger v. Iran, 729 F.2d 835 (D.C. Cir. 1984).
d. Birth on foreign ships in foreign government non-commercial
service:
(1) A child born on a foreign merchant ship or
privately owned vessel in U.S. internal waters is considered as having been
born subject to the jurisdiction of the United States. (See U.S. v. Wong Kim
Ark.); and
(2) Foreign warships, naval auxiliaries, and other
vessels or aircraft owned or operated by a State and used for governmental
non-commercial service are not subject to jurisdiction of the United States.
Persons born on such vessels while in U.S. internal waters (or, of course,
anywhere else) do not acquire U.S. citizenship by virtue of place of birth.
e. Alien enemies during hostile occupation:
(1) If part of the United States were occupied by
foreign armed forces against the wishes of the United States, children born to
enemy aliens in the occupied areas would not be subject to U.S. jurisdiction
and would not acquire U.S. citizenship at birth; and
(2) Children born to persons other than enemy aliens
in an area temporarily occupied by hostile forces would acquire U.S.
citizenship at birth because sovereignty would not have been transferred to the
other country. (See U.S. v. Wong Kim Ark.)
8 FAM 301.1-4 birth in u.s.
internal WATERS and TERRITORIAL Sea
(CT:CITZ-1; 06-27-2018)
a. Persons born on ships located within U.S. internal
waters (except as provided in 8 FAM 301.1-3)
are considered to have been born in the United States. Such persons will
acquire U.S. citizenship at birth if they are subject to the jurisdiction of
the United States. Internal waters include the ports, harbors, bays, and other
enclosed areas of the sea along the U.S. coast. As noted above, a child born
on a foreign merchant ship or privately owned vessel in U.S. internal waters is
considered as having been born subject to the jurisdiction of the United
States. (See U.S. v. Wong Kim Ark.)
b. Twelve Nautical Mile Limit: The territorial sea of
the United States was formerly three nautical miles. (See, e.g., Cunard S.S.
Co. v Mellon, 262 U.S. 100, 122, 43 S. Ct. 504, 67 L. Ed. 894 (1923).)
However, the three-mile rule was changed by a Presidential Proclamation in
1988, implementing the territorial-sea provision of the 1982 U.N. Convention on
the Law of the Sea. (Presidential Proclamation 5928, signed December 27, 1988,
published at 54 Federal Register 777, January 9, 1989.) As decreed by that
Proclamation, the territorial sea of the United States henceforth extends to 12
nautical miles from the baselines of the United States determined in accordance
with international law. (The Proclamation also stated that the jurisdiction of
the United States extends to the airspace over the territorial sea.) (See
Gordon, Immigration Law and Procedure, Part 8 Nationality and Citizenship,
92.03(2)(b) territorial limits.)
c. FAM guidance up until 1995 (7 FAM 1116.1-2
In U.S. Waters TL:CON-64; 11-30-95) advised that persons born within the 3-mile
limit of the U.S. territorial sea were born within the United States and
could be documented as U.S. citizens if they were also born subject to U.S.
jurisdiction. Some commentators took this view as well, such as Gordon.
Analysis of this issue undertaken in 1994-1995 revealed, however, that there is
a substantial legal question whether persons born outside the internal waters
of the United States but within the territorial sea are in fact born within
the United States for purposes of the 14th Amendment and the INA.
d. Cases involving persons born outside the internal
waters but within the U.S. territorial sea, must be referred to
AskPPTAdjudication@state.gov for coordination with CA/PPT/L, L/CA, and L/OES
and other appropriate offices within the United States government.
8 FAM 301.1-5 WHAT IS BIRTH IN
U.S. Airspace?
(CT:CITZ-1; 06-27-2018)
a. Under international law, the limits of a country's
sovereign airspace correspond with the extent of its territorial sea. The
outer limit of the territorial sea of the United States is 12 nautical miles
from the coastline. Airspace above the land territory, internal waters, and
territorial sea is considered to be part of the United States (Presidential
Proclamation 5928, signed December 27, 1988, published at 54 Federal Register
777, January 9, 1989).
b. Comments on the applicability of the 14th Amendment
to vessels and planes, are found in Gordon, Immigration Law and Procedure, Part
8, Nationality and Citizenship, Chapter 92, 92.03 (New York: Matthew Bender,
2007). This volume states:
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The rules applicable to vessels obviously apply
equally to airplanes. Thus a child born on a plane in the United States or
flying over its territory would acquire United States citizenship at birth.
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c. Under the 1944 Convention on International Civil
Aviation, articles 1721, all aircraft have the nationality of the State in
which they are registered, and may not have multiple nationalities. For
births, the nationality law of the aircraft's nationality may be applicable,
and for births that occur in flight while the aircraft is not within the
territory or airspace of any State, it is the only applicable law that may be
pertinent regarding acquisition of citizenship by place of birth. However, if
the aircraft is in, or flying over the territory of another State, that State
may also have concurrent jurisdiction.
d. Cases of citizenship of persons born on planes in
airspace above the United States land territory or internal waters may be
adjudicated by passport specialists at domestic passport agencies and centers
or consular officers at posts abroad in accordance with 8 FAM 301.1-6.
e. Cases of persons born on planes in airspace outside
the 12 nautical mile limit would be adjudicated as a birth abroad under INA 301
(8 U.S.C. 1401) or INA 309 (8 U.S.C. 1409) as made applicable by INA 301(g).
f. Cases of persons born on a plane in airspace above
the U.S. territorial sea (12 nautical mile limit) must be referred to
AskPPTAdjudication@state.gov for consultation with CA/PPT/S/L/LA and L/CA.
8 FAM 301.1-6 DOCUMENTING BIRTH
IN U.S. Waters and u.s. airspace
(CT:CITZ-1; 06-27-2018)
a. Proof of birth in U.S. internal waters or U.S.
airspace consists of a U.S. birth certificate certified by the issuing
authority in the U.S. jurisdiction.
b. There is no U.S. Federal law governing the report of
such births.
c. Generally speaking, U.S. Customs and Border
Protection (CBP) would require some documentation of the birth, generally an
excerpt of the ships/aircrafts medical log or master/captains log,
reflecting the time, latitude, and longitude when the birth occurred.
d. For ships/aircraft in-bound for the United States,
the parents would then be responsible for reporting the birth to the civil
authorities in the U.S. jurisdiction where the vessel put into port. (See the
Centers for Disease Control and Prevention (CDC) publication Where to Write
for Birth Certificates.)
(1) The parents will have to contact the state vital
records office to determine the exact procedures for report such a birth;
(2) Parents should obtain a certified copy of the
ships medical log, airplanes log, or other statement from the attending
physician or other attendant and attempt to obtain information on how to
contact attendants in the future should further questions arise;
(3) If the mother and child were immediately taken to
a U.S. hospital, authorities there may be of assistance in facilitating contact
with the appropriate state authorities; and
(4) It is unlikely that the vital records office in
the parents state of residence will issue such a birth certificate. Parents
may be redirected to the vital records office in the state where the ship first
put into port after the birth of the child.
8 FAM 301.1-7 Native Americans
and Eskimos
(CT:CITZ-1; 06-27-2018)
a. Before U.S. v. Wong Kim Ark, the only occasion on
which the Supreme Court had considered the meaning of the 14th Amendments
phrase subject to the jurisdiction of the United States was in Elk v.
Wilkins, 112 U.S. 94 (1884). That case hinged on whether a Native American who
severed ties with the tribe and lived among whites was a U.S. citizen and
entitled to vote. The Court held that the plaintiff had been born subject to
tribal rather than U.S. jurisdiction and could not become a U.S. citizen merely
by leaving the tribe and moving within the jurisdiction of the United States.
The Court stated that: The Indian tribes, being within the territorial limits
of the United States, were not, strictly speaking, foreign States; but they
were alien nations, distinct political communities, with whom the United States
might and habitually did deal through treaties or acts of Congress. They were
never deemed citizens of the United States except under explicit provisions of
treaty or statute to that effect, either declaring a certain tribe, or such
members of it as chose to remain behind on the removal of the tribe westward,
to be citizens, or authorizing individuals of particular tribes to become
citizens upon application for naturalization.
b. The Act of June 2, 1924 was the first comprehensive
law relating to the citizenship of Native Americans. It provided: That all
non-citizen Indians born within the territorial limits of the United States be,
and they are hereby, declared to be citizens of the United States: Provided,
That the granting of such citizenship shall not in any manner impair or
otherwise affect the right of any Indian to tribal or other property.
c. Section 201(b) NA, effective January 13, 1941,
declared that persons born in the United States to members of an Indian,
Eskimo, Aleutian, or other aboriginal tribe were nationals and citizens of the
United States at birth.
d. INA 301(b) (8 U.S.C. 1401(b)) (formerly INA
301(a)(2)), in effect from December 24, 1952, restates this provision.
8 FAM 301.1-8 FOUNDLINGS
(CT:CITZ-1; 06-27-2018)
a. Under INA 301(f) (8 U.S.C. 1401(f)) (formerly
Section 301(a)(6)) INA), a child of unknown parents is conclusively presumed to
be a U.S. citizen if found in the United States when under 5 years of age,
unless foreign birth is established before the child reaches age 21.
b. Under Section 201(f) of the Nationality Act of 1940,
a child of unknown parents, found in the United States, was presumed to have
been a U.S. citizen at birth until shown not to have been born in the United
States no matter at what age this might have been demonstrated.