Derivative American Citizenship

You might be a citizen of the U.S. if one or both of your parents became naturalized U.S. citizens before you turned 18. This type of citizenship is called “derivative citizenship.” It means that when your parents became citizens, you “derived” or got citizenship through them.

Naturalization is a process for people who were not born in the U.S. to become U.S. citizens. Typically, to naturalize, a person must have been a lawful permanent resident for at least 3 and usually 5 years. The person must also pass an English and U.S. history test and go to a ceremony where they take an oath to uphold allegiance to the U.S.

Some individuals become U.S. citizens at birth even if they are not born in the United States. Under current law, if a child is born abroad to two U.S. citizens, at least one of whom has resided in the U.S. for a specified period of time, that child automatically becomes a U.S. citizen.

However, derivative American Citizenship is unexpectedly complicated. This is particularly true if the father is the U.S. citizen and the child was born out of wedlock; it is also more complicated for adopted children.

Variables that will affect derivative acquisition of citizenship include :

  • the date of birth of the child and the law in effect at the time;
  • whether the parents were married when the child was born;
  • whether the U.S. parent is the father or the mother of the child;
  • if the child, born out of wedlock, was legitimated by her U.S. citizen father; and
  • whether the U.S. citizen parent was physically present in the U.S. for certain periods of time and by certain dates.

As for adopted children, the rules are different, although the Child Citizenship Act of 2000 made it easier for them to acquire the citizenship of their adoptive parents.

The complexity of this area of law is due, in part, to the fact that the requirements have continuously changed through the years (1934, 1940, 1952, 1978, 1984, 1996 and 2000) and few if any of the changes were made retroactive.

Let’s make an example: suppose that Mario is born abroad in 1985 to Livia, a married U.S. citizen who is 17 years of age at the time of Mario’s birth. Mario’s father is a foreign national. The law pertaining the derivative citizenship in 1985 provided that, in order for Livia to confer U.S. citizenship upon her child, she must have been physically present in the U.S. for 10 years, 5 of which were after she turned 14. Since Livia was only 17 when she gave birth to Mario, it will be impossible to establish that she was physically present in the United States for 5 years after the age of 14. Because of this law, Mario is not a derivative U.S. citizen.

If Livia had Paula in 1990, rather than 1985, she would have derivatively acquired U.S. citizenship through Livia, not because Livia could not have acquired the requisite 5 years physical presence in the U.S. after reaching the age 14, but rather, because in 1986 the law changed, and only required that Livia have 5 years of physical presence in the U.S., including 2 years after she turned 14, in order for Paula to derive U.S. citizenship through her.