8 FAM 302.8
Acquisition by Birth Abroad to Non-Citizen U.S. National
Parent(s)
(CT:CITZ-1; 06-27-2018)
(Office of Origin: CA/PPT/S/A)
8 FAM 302.8-1 Introduction
(CT:CITZ-1; 06-27-2018)
a. The acquisition of non-citizen U.S. nationality by
birth abroad is governed by treaty or congressional legislation. The law in
effect when a person was born governs that person's acquisition of non-citizen
U.S. nationality, unless the legislation specifically provides otherwise such
as retroactive application:
(1) The national or nationals through whom a child
claims non-citizen U.S. nationality must have been U.S. non-citizen nationals
when the child was born and previously must have resided or been physically
present in the United States or one of its outlying possessions as required by
the applicable law;
(2) See 8 FAM 302.5
regarding acquisition of U.S. non-citizen nationality by persons born in
American Samoa and Swains Island and 8 FAM 302.6
regarding the non-citizen national option provided for persons born in the
Commonwealth of the Northern Mariana Islands in section 302 of the Covenant to
Establish a Commonwealth of the Northern Mariana Islands in Political Union
with the United States of America (Public Law 94-241. 90 Stat.
263)("Covenant") of March 24, 1976, entered fully into force November
3, 1986.
b. Blood relationships: The considerations in 8 FAM 301.4,
relating to blood relationships, and 8 FAM 304.4,
concerning posthumous children also apply to persons claiming non-citizen U.S.
nationality through their parents.
c. Retention provisions: Persons who acquired
non-citizen U.S. nationality at birth were never subject to special
requirements for retaining their U.S. nationality.
d. Birth to one U.S. citizen and one U.S. non-citizen
national: A child born to one U.S. citizen parent and one U.S. non-citizen
national parent acquires U.S. citizenship if the parent meets the requirements
of the Immigration and Nationality Act (INA) 301(d) (8 U.S.C. 1401(d)) (or
prior statutes) and, in cases of children born out of wedlock, INA 309 (8
U.S.C. 1409) (or prior statutes). The person may not opt for U.S. non-citizen
national status. A person cannot be both a citizen and non-citizen national.
Non-citizenship nationality under section 308 of the INA is only acquired when
there is no U.S. citizen parent.
e. Certificate of non-citizen national status: See INA
341(b) (8 U.S.C. 1452(b)).
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NOTE: Only persons who acquired U.S.
non-citizen national status pursuant to INA 308 (8 U.S.C. 1408) or section
204 the Nationality Act of 1940 (NA) are eligible for such a certificate.
The Department implements INA 341(b) (8 U.S.C. 1452(b)) by annotating the
persons U.S. passport to indicate that he or she is a non-citizen national
and not a citizen, using endorsement code 09. (See 8 FAM 505.2.)
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f. Naturalization of a U.S. non-citizen national: A
person who is a U.S. non-citizen national may apply for naturalization as a
U.S. citizen pursuant to INA 325 (8 U.S.C. 1436) and 8 CFR 325.
8 FAM 302.8-2 CHART
(CT:CITZ-1; 06-27-2018)
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Date of Birth
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Place of Birth
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Status of Parents
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Notes
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Laws, Regulations Applicable
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On or after January 13, 1941 and prior to December 24,
1952
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In an outlying possession of the United States
(definition changed in NA and INA. See 8 FAM
302.8-4).
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One U.S. non-citizen national parent
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U.S. Non-Citizen Nationality Acquired
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Section 204(a) of the Nationality Act
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On or after January 13, 1941 and prior to December 24,
1952
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Outside the U.S. and outlying possessions
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Both U.S. non-citizen nationals
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Both parents resided in the U.S. or possession prior to
the childs birth U.S. non-citizen Nationality acquired
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Section 204(b) of the Nationality Act
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Prior to January 13, 1941 and prior to December 24, 1952
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Outside the U.S. or its outlying possessions
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Non-citizen national mother
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Birth Out of Wedlock:
Second Paragraph, Section 205 of the Nationality Act was
retroactive. Children born out of wedlock to a U.S. non-citizen national
mother who had U.S. non-citizen nationality at the time of the childs birth
and who had resided in the U.S. or an outlying possession prior to the birth
of the child acquired U.S. non-citizen national status.
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Section 205 of the Nationality Act
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Prior to January 13, 1941 and prior to December 24, 1952
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Outside the U.S. or its outlying possessions
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U.S. non-citizen national father
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The first paragraph of Section 205 NA regarding
establishment of paternity by legitimation or adjudication by a competent
court has not been applied retroactively. A child born abroad prior to
January 13, 1941 out of to an alien mother and a father who had U.S.
non-citizen nationality at the time of the childs birth, and met the
legitimation and transmittal requirements, did not acquire U.S. non-citizen
nationality under Section 204 of the Nationality Act as made applicable by
Section 205 of the Nationality Act
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Section 205 of the Nationality Act
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On or after January 13, 1941 and prior to December 24,
1952
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Outside the U.S. or its outlying possessions
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Non-citizen national father
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Birth Out of Wedlock:
First Paragraph: The provisions of Section 201 of the
Nationality Act, subsections (c), (d), (e) and (g) and Section 204 (a) and
(b) of the Nationality Act, apply as of the date of birth, to a child born
out of wedlock, provided the paternity is established during minority, by
legitimation, or adjudication of a competent court.
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Section 205 of the Nationality Act
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On or after December 24, 1952 (INA)
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Outside the U.S. or its outlying possessions
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Both parents are U.S. non-citizen nationals
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Both parents have had a residence in the United States,
or one of its outlying possessions prior to the birth of such person U.S.
non-citizen Nationality acquired.
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INA 308(2)
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Before August 27, 1986
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Outside the U.S. or its outlying possessions
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One parent a U.S. non-citizen national; one alien parent
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U.S. nationality is conferred on the date the passport
or Consular Report of Birth Abroad application is approved; i.e., non-citizen
nationality is not retroactive to the birth date or the date of the act's
enactment.
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Act of August 27, 1986, Public Law 99-396, Section 15
(Public Laws Amending the INA USCIS web page)
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On or after August 27, 1986
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Outside the U.S. or its outlying possessions
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One parent a U.S. non-citizen national; one alien parent
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U.S. non-citizen national parent was physically present
in the United States or its outlying possessions for a period or periods
totaling not less than seven years in any continuous period of ten years,
five after the age of 14. And parent was not outside the U.S. or its
possessions for a continuous period more than one year.
The proviso of INA 301(g) (8 U.S.C. 1401(g)) shall apply
to the national parent under this paragraph in the same manner as it applies
to the citizen parent under that section.
In the case of a person born abroad after August 27,
1986, whose U.S. passport or Consular Report of Birth of Abroad application
is approved, non-citizen U.S. nationality is deemed to have been conferred
retroactively to the date of birth.
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Act of August 27, 1986, Public Law 99-396, Section 15
(Public Laws Amending the INA USCIS web page)
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8 FAM 302.8-3 BEFORE JANUARY 13,
1941
(CT:CITZ-1; 06-27-2018)
a. NA, there was no comprehensive law under which a
person born in a foreign country to a non-citizen U.S. national could acquire
the parent's nationality status at birth, "the law of jus sanguinis being
applicable to United States citizens" only.
b. Section 204(b) NA, which went into effect on January
13, 1941, was prospective in application and did not give non-citizen U.S.
nationality to persons previously born abroad to non-citizen U.S. nationals.
c. Acquisition of U.S. nationality by birth abroad
before January 13, 1941, however, was possible:
(1) Certain children born abroad to Puerto Rican U.S.
nationals could acquire non-citizen U.S. nationality at birth. (See 8 FAM 302.2.)
(2) Because the second paragraph of section 205 of the
Nationality Act was retroactive, children born out of wedlock before its
effective date to non-citizen U.S. national women who previously had resided in
the United States or one of its outlying possessions could claim non-citizen
U.S. nationality. (See 8 FAM 301.6.)
8 FAM 302.8-4 JANUARY 13, 1941
THROUGH DECEMBER 23, 1952
(CT:CITZ-1; 06-27-2018)
a. Section 204 (b) NA stated that: Unless otherwise
provided in section 201 NA (Nationality Act), the following shall be nationals,
but not citizens, of the United States:
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A person born outside the United States and its
outlying possessions of parents both of whom are nationals, but not citizens,
of the United States, and have resided in the United States or one of its
outlying possessions prior to the birth of such person.
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b. Section 205 of the Nationality Act specified the
ways in which children born abroad out of wedlock to non-citizen U.S. nationals
could acquire the parent's nationality status.
c. Section 101(e) of the Nationality Act provides that
the term outlying possessions means all territory, other than as specified
in subsection (d), over which the United States exercises rights of
sovereignty, except the Canal Zone. Section 101(d) of the Nationality Act
provides 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.
8 FAM 302.8-5 CURRENT LAW
(CT:CITZ-1; 06-27-2018)
a. The provisions of INA 308(2) (8 U.S.C. 1408(2)),
which replaced those of section 204(b) of the Nationality Act on December 24, 1952,
were virtually identical.
b. INA 308(2) applies only to persons born on or after
December 24, 1952. INA 101(2) (8 U.S.C. 1101) provides outlying possessions
of the United States means American Samoa and Swains Island.
c. INA 308(4) (8 U.S.C. 1408(4)), which was added to
the INA by section 15(a) of Public Law 99-396 of August 27, 1986 (100 Statutes
at Large 842), the Omnibus Territories Act, provides, for the first time, for
acquisition of U.S. nationality (not citizenship) by birth abroad to one U.S.
national parent. See public laws amending the INA USCIS web page.
d. Section 15 of Public Law 99-396, the Omnibus
Territories Act of 1986, (Public Laws Amending the INA USCIS web page) which
added INA 308(4) contained similar provisions.
e. Thus, for a person born abroad prior to the effective
date of INA 308(4) (8 U.S.C. 1408), August 27, 1986, U.S. nationality is
conferred on the date the passport or Consular Report of Birth Abroad
application is approved; i.e., non-citizen nationality is not retroactive to
the birth date or the date of the Act's enactment.
f. In the case of a person born abroad on or after
August 27, 1986, whose application is approved, non-citizen U.S. nationality is
deemed to have been conferred retroactively to the date of birth.
g. INA 309 (8 U.S.C. 1409) specifies the circumstances
under which INA 308(2) (8 U.S.C. 1408(2)) applies to a child born out of
wedlock to a non-citizen U.S. national.
8 FAM 302.8-6 PROOF OF CLAIM TO
NON-CITIZEN U.S. NATIONALITY BY BIRTH ABROAD
(CT:CITZ-1; 06-27-2018)
a. Evidence of claim to U.S. non-citizen nationality birth
to two U.S. national parents: Evidence to prove a claim to non-citizen U.S.
nationality under section 204(b) of the Nationality Act or INA 308(2) (8 U.S.C.
1408(2)) by birth abroad to two U.S. nationals consists of:
(1) A certified copy of the applicant's birth
certificate;
(2) Proof of both parents' U.S. nationality status
such as a U.S. passport indicating that the parents are U.S. nationals, or
other documentation establishing nationality;
(3) The parents' marriage certificate; and
(4) Proof that both parents previously had resided in
the United States or one of its outlying possessions.
b. Evidence of claim to U.S. non-citizen nationality
Birth to one U.S. national parent: Evidence to prove a claim to non-citizen
U.S. nationality by birth abroad to one U.S. national parent under INA 308(4)
(8 U.S.C. 1408(4)) consists of:
(1) A certified copy of the applicant's birth
certificate;
(2) Proof of one parent's acquisition of U.S.
nationality (ordinarily a U.S. passport indicating that the parent is a U.S.
national) or documentation establishing parent's claim to U.S nationality;
(3) The parents' marriage certificate; and
(4) Evidence of physical presence of U.S. national parent
prior to the birth of the applicant: Evidence that, prior to the applicant's
birth, the U.S. national parent was physically present in the United States or
an outlying possession (American Samoa, Swains Island) for a total of seven
years drawn from any continuous ten-year period (allowing for absences of not
more than one year), and five of those seven years must have been after the
applicant's parent was age 14:
(a) The evidence submitted to establish physical
presence of a parent may consist of records available from churches, schools,
employees, immigration authorities, medical sources, and government agencies
(e.g., tax and census records). In addition, a person may provide receipts for
payment of utilities, auto registration fees, mortgage, rent receipts, and so
forth;
(b) Affidavits may be used to supplement the
documentation mentioned above but affidavits alone will not suffice. In order
to be helpful, such an affidavit should be from a person having first‑hand
knowledge of the applicant's physical presence during particular time periods
as reflected in specific recollections; and
(c) In assessing such evidence, the consular officer is
reminded that the quality of the evidence is more important than the quantity,
and no rigid mechanical formula (e.g., one item of evidence for each year claimed)
should be applied. The legislative history of this law offers guidance. The
Congressional Record of August 1, 1986 states:
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Many of the individuals who would qualify for U.S.
nationality under this provision are older, and desirable records may not
exist to substantiate the residency of their parents. In these cases,
officials of the Department of State should rely on whatever information can
be provided and use liberal discretion as they do to qualify every individual
who can reasonably be presumed to be eligible. (132 Congressional Record,
part. 13 (1986) page 18619).
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c. Persons who lack sufficient evidence should be so
advised so that they can attempt to present additional documentation.
d. Birth out of wedlock: If a child was born abroad
out of wedlock to a U.S. national mother, the necessary evidence would be the
child's birth certificate and proof that the mother had U.S. non-citizen
nationality status and met the applicable residence requirement of section 205
of the Nationality Act (for children born prior to December 24, 1952) or the
physical presence requirement of INA 309(c) (8 U.S.C. 1409(c))(for children
born on or after December 24, 1952).
e. If a child born out of wedlock to two non-citizen
U.S. nationals did not acquire U.S. nationality at birth because the mother did
not have the required one year continuous U.S. physical presence to transmit,
the child would need to present evidence of birth to the two nationals,
evidence of the parents' prior residence in the United States or one of its
outlying possessions, and evidence of fulfillment of the conditions of INA
309(a) (8 U.S.C. 1409(a)), as amended. (See 8 FAM 301.7.)
f. A child born out of wedlock to an alien mother and
a U.S. non-citizen national father would need to present:
(1) Evidence of the U.S. non-citizen nationality;
(2) Evidence of the fathers identity (See 8 FAM 401);
(3) Certified copy of the childs birth certificate;
(4) Evidence that the father met the applicable
residence requirement of section 205 of the Nationality Act (for children born
prior to December 24, 1952) or the physical presence requirement of INA 308(4)
(8 U.S.C. 1408(4))(for children born on or after December 24, 1952); and
(5) Evidence that the father met the legitimation
requirements of section 205 of the Nationality Act (for children born prior to
December 24, 1952) or the conditions of INA 309(a) (8 U.S.C. 1409(a)) (for
children born on or after December 24, 1952).