United States nationality law

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The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of the United States. The requirements have become more explicit since the ratification of the Fourteenth Amendment to the Constitution, with the most recent changes to the statutory law having been made by Congress in 2001.

[edit] Possession of citizenship

[edit] Rights of citizens

United States' citizens have the right to fully participate in the political system of the United States (with most member states having restrictions for felons, and a federal restriction on naturalized persons running for President and Vice President of the United States), are represented and protected abroad by the United States (through U.S. embassies and consulates), and are allowed to reside in the United States, and certain territories, without any immigration requirements.

[edit] Responsibilities of citizens

Citizens have the duty to serve in a jury, if selected. Citizens are also required to pay taxes on their total income from all sources worldwide, including income earned while residing abroad (regardless of the duration of the residence) – but only beyond the first $82,400 in this case because of the Foreign Earned Income Exclusion. [1]. U.S. taxes payable may be further reduced by credits for foreign income taxes. The United States Government also insists that U.S. citizens travel into and out of the United States on a U.S. passport, regardless of any other nationality they may possess.

Male U.S. citizens (including those living permanently abroad and/or with dual U.S./other citizenship) are required to register with the Selective Service System at age 18 for possible conscription into the armed forces. Although no one has been drafted in the U.S. since 1973, draft registration continues as a standby contingency measure in the event Congress were to decide to reinstitute conscription at some future date.

[edit] Acquisition of citizenship

There are various ways in which a person can acquire United States citizenship, either at birth or later on in life.

[edit] Natural-born citizens

The phrase "natural born citizen", although it appears in the documents, is not defined anywhere in the Constitution itself and its interpretation has never been the subject of a U.S. Supreme Court ruling. Nevertheless, most United States citizens are assumed to be natural-born citizens, which is thought to mean they have been citizens since birth by virtue of having been born in the United States or born to a United States citizen (or citizens) outside of a U.S. state.

[edit] Birth within the United States

Main article: Birthright citizenship in the United States of America

Children born in the United States (including not only the 50 states and the District of Columbia, but also, in most cases, U.S. Territories, such as Puerto Rico, Guam, the Northern Mariana Islands, the U.S. Virgin Islands, and the Panama Canal Zone before it was returned to Panama, in addition to many current states which were territories at the time of the birth of some individuals now living, e.g. Alaska and Hawaii), are U.S. citizens at birth (unless born to foreign diplomatic staff), regardless of the citizenship or nationality of the parents (see Jus soli). This has become controversial, as some non-resident parents, especially illegal aliens, enter the United States to give birth, so that their children, often called anchor babies, will be U.S. citizens. A birth certificate is considered evidence of citizenship.

The U.S. citizenship status of children born in the United States to non-citizen parents has been generally accepted as settled law since 1898, when the Supreme Court held in U.S. v. Wong Kim Ark that almost all such children were entitled to citizenship by the Fourteenth Amendment to the Constitution. Although efforts have been made in Congress, from time to time, to overturn the Wong Kim Ark ruling or limit its effect, via either a new amendment to the Constitution or ordinary legislation, no such attempt has ever succeeded.

[edit] Through birth abroad to two United States citizens

In most cases, one is a U.S. citizen if both of the following are true:

Both parents were U.S. citizens at the time of the child's birth
At least one of parent lived in the United States prior to the child's birth.

A person's record of birth abroad, if registered with a U.S. consulate or embassy, is proof of his or her citizenship. He or she may also apply for a passport or a Certificate of Citizenship to have his or her citizenship recognized.

[edit] Through birth abroad to one United States citizen

In most cases, a person is a U.S. citizen if all of the following are true:

One of his or her parents was a U.S. citizen at the time of the person in question's birth;
The citizen parent lived at least 5 years in the United States before his or her child's birth; and
At least 2 of these 5 years in the United States were after the citizen parent's 14th birthday (see note below).

A person's record of birth abroad, if registered with a U.S. consulate or embassy, is proof of his or her citizenship. Such a person may also apply for a passport or a Certificate of Citizenship to have his or her citizenship recognized.

Note: If born before November 14, 1986, a person is a citizen if his or her U.S. citizen parent lived in the U.S. for at least 10 years and 5 of those years in the U.S. were after the citizen parent's 14th birthday. The newer law does not apply retroactively.

Different rules apply for those born before December 24, 1952.

[edit] Naturalization

Naturalization is the process in which one becomes a citizen of a country. If not a U.S. citizen, one may be eligible to become one through naturalization.

[edit] Eligibility for naturalization

To become a naturalized United States citizen, one must be at least eighteen years of age at the time of filing, a legal permanent resident of the United States, and have had a status of a legal permanent resident in the United States for five years less 90 days before they apply (this requirement is reduced to three years less 90 days if they (a) acquired legal permanent resident status , and (b) have been married to and living with a citizen for the past three years.) They must have been physically present for at least 30 months of 60 months prior to the date of filing their application. Also during those 60 months if the legal permanent resident was outside of the U.S. for a continuous period of 6 months or more they are disqualified from naturalizing (certain exceptions apply for those continuous periods of six months to 1 year). They must be a "person of good moral character"[2], and must pass a test on United States history and government. Most applicants must also have a working knowledge of the English language (there are exceptions for long-resident older applicants and those with mental or physical disabilities), although this requirement is not intended to be an onerous one, since the test requires that they read and write simple sentences in English, such as "The United States is a democracy". However, some applicants fail the language and civics tests, and others are deterred from applying for naturalization by virtue of the test requirement.^{[citation needed]}

[edit] Citizenship test

Applicants for citizenship are asked ten questions, picked from a list of 96, and must answer at least six correctly. The list of 96 potential questions includes (with answers):

Who elects the President of the United States?
- The Electoral College.
How many changes, or amendments, are there to the Constitution?
- 27.
How many voting members are in the House of Representatives?
- 435.
Who said, "Give me liberty or give me death"?
- Patrick Henry.
Which President was the first Commander in Chief of the U.S. Army and Navy?
- George Washington.
Name the amendments that guarantee or address voting rights.
- The 15th, the 19th, the 24th, and the 26th.
In what year was the Constitution written?
- 1787.
How many times may a Senator or Congressman be reelected?
- No limit.
What U.S. Citizenship and Immigration Services form is used to apply for naturalized citizenship?
- N-400.
What is the most important right granted to United States citizens?
- The right to vote.

(U.S. Citizenship and Immigration Services)

[edit] New Pilot Naturalization Test

There is a new Pilot naturalization test currently being conducted in 11 cities around the United States.

The new pilot test is currently being conducted in the following cities:

Albany, NY;
Boston, MA;
Charleston, SC;
Denver, CO;
El Paso, TX;
Kansas City, MO;
Miami, FL;
San Antonio, TX;
Tucson, AZ; and
Yakima, WA.

The new pilot test is still voluntary. The applicant may choose to take the new pilot test or not. If the applicant chooses to take the new exam and fails to pass it, he or she may still take the original naturalization test during the same interview time.

The new pilot test examines the applicant's knowledge of American society and the English language. A guide with Sample questions and Answers can be accessed on the Immigration Test website. A list of the English sentences that the applicant has to write during the exam are also available.

The applicant taking the naturalization exam must also satisfy all other specific requirements of naturalization to successfully obtain US citizenship.

[edit] Eligibility for public office

A person who becomes a U.S. citizen through naturalization is not considered a natural-born citizen. Consequently, naturalized U.S. citizens are not eligible to become President of the United States or Vice President of the United States. For example, in 2005, the Secretary of Labor (Elaine Chao) and the Secretary of Commerce (Carlos Gutierrez) could not succeed to the presidency because they became U.S. citizens through naturalization. Ordinarily, the Secretary of Commerce and the Secretary of Labor are tenth and eleventh in the presidential line of succession, as established by the United States Constitution and the Presidential Succession Act. The naturalized people to hold the highest position in the Presidential Line of Succession were Henry Kissinger and Madeleine Albright, both of whom were fourth.

Whether or not this restriction applies to children born to non-US citizens but adopted as minors by US citizens is a matter of some debate, due to ambiguities in the interpretation of the Child Citizenship Act of 2000 as to whether acquisition of citizenship by that route is to be regarded as naturalized or natural-born. Those who argue that the restriction does not apply point out that the child automatically becomes a citizen even though violating every single requirement of eligibility for naturalization, and thus the case falls closer to the situation of birth abroad to US citizens than to naturalization. This interpretation is in concert with the wording of the Naturalization Act of 1790, that "the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens", which does not draw a distinction between biological children and adopted children, even though the process of adoption was certainly well known at the time.

In fact, the phrase "natural born Citizen" is not defined anywhere in the Constitution itself and its interpretation has never been the subject of a U.S. Supreme Court ruling. Thus, some argue that even those born abroad to US citizens are not eligible to ascend to the Presidency, since an act of Congress such as the Naturalization Act may not overrule the Constitution (see "Natural born citizen" as presidential qualification). Thus far, presidential candidates George W. Romney (born in Mexico), and Barry Goldwater and John McCain (born in US territories), were never seriously challenged on the basis of their "natural-born" citizenship, but no candidate falling under this classification has ever actually become President, and therefore the question must be regarded as not having been finally decided.

[edit] Expeditious naturalization - children

Effective 1 April 1999, a child born outside the U.S. to a U.S. citizen parent, if not already a citizen by birth because the parent does not meet the residency requirement (see above), may qualify for expeditious naturalization based on the physical presence of the child's grandparent in the U.S. In general the grandparent should have spent 5 years in the U.S., 2 years of which after the age of 14.

The process of naturalization, including the oath of allegiance, must be completed before the child's 18th birthday. It is not necessary for the child to be admitted to the U.S. as a lawful permanent resident. Details

[edit] Child Citizenship Act of 2000

Effective 27 February 2001, the Child Citizenship Act of 2000 provided that a non-U.S. citizen child (aged under 18) with a U.S. citizen parent, and in the custody of that parent, automatically acquired U.S. citizenship:

on that date, if admitted to the U.S. as a permanent resident
immediately upon subsequent admission to the U.S. as a permanent resident, if still aged under 18. Details

[edit] Dual citizenship

Based on the U.S. Department of State regulation on dual citizenship (7 FAM 1162), the Supreme Court of the United States has stated that dual citizenship is a “status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact he asserts the rights of one citizenship does not without more mean that he renounces the other,” (Kawakita v. U.S., 343 U.S. 717) (1952).

The Immigration and Nationality Act (INA) neither defines dual citizenship nor takes a position for it or against it. There has been no prohibition against dual citizenship, but some provisions of the INA and earlier U.S. nationality laws were designed to reduce situations in which dual citizenship exists. Although naturalizing citizens are required to undertake an oath renouncing previous allegiances, the oath has never been enforced to require the actual termination of original citizenship.

Although the U.S. Government does not endorse dual citizenship as a matter of policy, it recognizes the existence of dual citizenship and completely tolerates the maintenance of multiple citizenship by U.S. citizens. In the past, claims of other countries on dual-national U.S. citizens sometimes placed them in situations where their obligations to one country were in conflict with the laws of the other. However, as fewer countries require military service and most base other obligations, such as the payment of taxes, on residence and not citizenship, these conflicts have become less frequent. As a result, there has been a dramatic increase in recent years in the number of Americans who maintain citizenship in other countries.

[edit] Nationals who are not citizens

According to 8 U.S.C. §1408 it is possible to be a U.S. national without being a U.S. citizen. A person whose only connection to the U.S. is through birth in an outlying possession, (which as of 2005 is limited to American Samoa and Swains Island), or through descent from a person so born acquires U.S. nationality but not U.S. citizenship. This was formerly the case in only four other current or former U.S. overseas possessions¹:

Guam (1898 - 1950) (Citizenship granted by an Act of Congress)
the Philippines (1898 - 1946) (Independence in 1946; Citizenship never accorded)
Puerto Rico (1898 - 1917) (Citizenship granted by an Act of Congress)
the U.S. Virgin Islands (1917 - 1927) (Citizenship granted by an Act of Congress)

Nationals who are not citizens cannot vote or hold elected office. However, they may reside and work in the United States without restrictions and apply for citizenship under the same rules as other resident aliens.

Not all U.S. nationals are U.S. citizens; however, all U.S. citizens are U.S. nationals. Indeed, U.S. passports normally make no distinction between the two, mentioning only the bearer's nationality, not his/her citizenship.

[edit] Loss of citizenship

As a historical matter, U.S. citizenship could be forfeited upon the undertaking of various acts, including naturalization in a foreign state, service in foreign armed forces, and voting in a foreign political election. However, a line of U.S. Supreme Court decisions beginning with Afroyim v. Rusk (1967) constitutionally limited the government's capacity to terminate citizenship to those cases in which an individual engaged in conduct with an intention of abandoning their citizenship. In the wake of administrative practice changes adopted by the U.S. Department of State during the mid 1990s, it is now virtually impossible to lose one's citizenship without expressly renouncing it before a U.S. consular officer.

There are also special provisions for persons who are deemed to have renounced citizenship for purposes of avoiding U.S. taxation (which is, in some cases, applicable on certain income for up to ten years after the official loss of citizenship), which can result in loss of right to entry into the United States. While in practice there is little to stop a foreign citizen who has performed a said act from entering the U.S., the U.S. State Department "requires" that a Certificate of Loss of Citizenship be obtained at a U.S. embassy or consulate (though this is generally treated as a gray area, judged on a case by case basis).

[edit] Footnotes

In the Panama Canal Zone only those persons born there prior to January 1, 2000 with at least one parent as a U.S. citizen were recognized as natural born U.S. citizens and were both nationals and citizens. Hence John McCain, born in the Canal Zone, is considered a natural born citizen and eligible to serve as president, although he would have anyway through jus sanguinis. Also in the former Trust Territory of the Pacific Islands the residents were considered nationals and citizens of the Trust Territory and not U.S. nationals.