Acquisition and Derivation of U.S Citizenship

April 19, 2013 | Naturalization

Q.  My father is a U.S. citizen born here in the United States. My mother brought my brother and I here when we were age 18. We are now age 21. Are we U.S. citizens because our father is American or must we apply?

A. Child sometimes get U.S. citizenship because a parent is a U.S. citizen in two possible ways. The child can acquire U.S. citizenship at birth or, sometimes the child can derive it later if the child gets permanent residence before turning 18. From what you write, you and your brother did not derive U.S. citizenship. So, lets look at whether you acquired citizenship at birth. I’ll describe derivation of citizenship later.

Under the acquisition rules for children born to married parents, for births after 11/14/1986 where one parent is a U.S. citizen parent and one parent is an “alien,” the citizen parent must have been physically present in the U.S. or its outlying possessions for five years before the child was born, at least two of which were after age 14. If you and your brother were born within wedlock to a U.S. citizen father and a foreign national mother, as long as your father can produce documentation proving his U.S. citizenship, his relationship to you and your brother, and that he met the physical presence requirements before your and your brother’s birth, then you and your brother will be able to apply for a certificate of citizenship or a U.S. passport regardless of your age and your own presence in the United States. Therefore, you and your brother would not need to wait an additional five years to apply for citizenship. If you qualify under these standards, then you should visit a Citizenship Now! center.

If your parents were not married, whether you acquired U.S. citizenship at birth depends on whether you were born “legitimate or you were “legitimated” or acknowledged in writing before turned 18. Even if you were born out-of-wedlock, you may have been born legitimate if the country of your birth considers you so. If you meet the legitimate or legitimated requirements, then you acquired U.S. citizenship at birth if your father had spent at least five years in the United States prior to your birth, at least two years of which were after he turned 18.

Because you and your brother entered the country after turning 18 you did not derive citizenship. In order to derive U.S. citizenship through a parent under the current law, both the parent and the child must first meet certain requirements. Either one or both parents must be a U.S. citizen. The child must be a lawful permanent resident (i.e., green card holder) as well as be unmarried and under age 18. The child must live in the United States in the legal and physical custody of the U.S. citizen parent(s). For children who were born out of wedlock, they can derive only through a U.S. citizen mother or, if the father is a U.S. citizen and the mother is not, then the father must have legitimated the child before the child turned 16. The process is called “derivation of citizenship” because the child is deriving her/his U.S. citizenship from the U.S. citizen parent or parents.