Were You Born a US Citizen?

Note: Cet article est en cours de traduction

US citizenship can be acquired either at birth or through naturalization. This blog will identify the rules by which US citizenship can be acquired at birth. It is common knowledge that a person born in the United States acquires US citizenship at birth. This acquisition of US citizenship stems from the Fourteenth Amendment to the Constitution of the United States which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”. It is important to note that this provision is not limited to the 50 States; persons born in the territories of Puerto Rico, the Marianas (i.e. Guam and the Northern Mariana Islands) and the US Virgin Islands also acquire US citizenship at birth.

 

Similarly to Canada and other countries such as Ireland and the United Kingdom,  it is also possible for a person born outside of the United States to one or two US citizens to acquire US citizenship at birth. The rules vary depending on a number of factors, including whether a person is born to one or two US citizens, whether a person is born in wedlock or out-of-wedlock and the person’s date of birth.

 

Two US Citizen Parents Rule

A person born in wedlock to a US citizen mother and a US citizen father acquires US citizenship at birth provided at least one of the parents resided in the United States or in one of the following territories: Puerto Rico, the Marianas and the US Virgin Islands. Under US immigration rules, a person is born “in wedlock” the gestational parents are legally married to each other at the time of birth or within 300 days of the termination of the marriage by death or divorice, and both parents are the legal parents of the child under local law at the time and place of birth.

 

Birth Abroad in Wedlock to a US Citizen and an Alien

A person born abroad in wedlock to a US citizen and an alien acquires US citizenship if  the US citizen parent (i) was a US citizen at the time of birth and (ii) was physically present in the United States for the prescribed period of time. This period of time varies according to the person’s date of birth:

 

• For a person born on or after November 14, 1986, the US citizen parent must have been physically present in the United States or one of its territories, i.e. Puerto Rico, the Marianas and the US Virgin Islands, for at least five (5) years before the person’s birth, at least two (2) of which were after the age of fourteen (14).
• For a person between December 24, 1952 and November 13, 1986, the US citizen parent must have been physically present in the United States or one of its territories, i.e. Puerto Rico, the Marianas and the US Virgin Islands, for at least ten (10) years before the person’s birth, at least five (5) of which were after the age of fourteen (14).

 

Moreover, the US citizen parent must be the genetic or the gestational parent and the child’s legal parent under local law at the time and place of the child’s birth.

 

Person Born out of Wedlock to a US Citizen

A person born out of wedlock to a US citizen may also obtain US citizenship at birth if certain criteria are met. The applicable rules depend on the gender of the US citizen parent and the person’s date of birth.

 

1. Persons born to a US citizen father – Rule applicable until November 14, 1986

Until November 14, 1986, one rule was applicable for determining if a person born out of wedlock to a US citizen father acquired US citizenship at birth. A person who established their US citizen father’s paternity by the age of 21 could acquire US citizenship if he/she fell into one of the following categories:

 

• Paternity had been established by legitimation prior to November 14, 1986.
• Persons who were eighteen (18) or older on November 14, 1986.

 

Persons who were at least fifteen (15) years old and younger than eighteen (18) on November 14, 1986 can claim US citizenship at birth under either this rule or the rule presented in the next section.

 

2. Persons born to a US citizen father – Rule applicable after November 14, 1986

Since November 14, 1986, a claim by a person born out-of-wedlock to a US citizen father for US citizenship at birth is determined in accordance with the following criteria:

 

• Clear and convincing evidence of a blood relationship between the person and the father is produced;
• The father was a US citizen at the time of the person’s birth;
• Should the person be under the age of eighteen (18), the father (unless deceased) agrees in writing to financially support the person until the age of eighteen (18); and
• Should the person be under the age of eighteen (18), paternity has been established in one of three (3) ways:
  • The person is legitimated under the law of his/her residence or domicile;
  • The father acknowledges paternity of the person in writing under oath; or
  • A competent court has established the paternity of the person.

 

3. Persons born to a US citizen mother on or before June 11, 2017

A person born out-of-wetlock to a US citizen mother on or before June 11, 2017 can claim US citizenship at birth if two conditions are met:

 

• The mother was a US citizen at the time of birth and was physically present in the United States or one of its territories, i.e. Puerto Rico, the Marianas and the US Virgin Islands, for a continuous period of one (1) year prior to the person’s birth; and
• The US citizen mother must be the genetic or gestational mother and the legal parent of the child under local law at the time and place of the child’s birth.

 

4. Persons born to a US citizen mother on June 12, 2017 and after

Due to the United States Supreme Court’s recent judgment in Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017), a person born out-of-wedlock to a US citizen mother on or after June 12, 2017, may claim US citizenship at birth if the mother was a US citizen at the time of the person’s birth and was physically present in the United States or one of its territories, i.e. Puerto Rico, the Marianas and the US Virgin Islands, for a period of five (5) years, at least two (2) of which were after the age of fourteen (14).

 

Like the rule applicable to births before June 12, 2017, the US citizen mother must also be the genetic or gestational mother and the legal parent of the child under local law at the time and place of the child’s birth.

 

Concluding Remarks

If you fall into anyone of these categories, you can claim US citizenship by filing a claim with your local US consulate and providing the requisite documentation. Should you become a US citizen, you have the absolute right to enter and reside in the United States. However, there is caselaw to the effect that the exercise of the right to enter the United States is subject to producing a US passport upon attempting to enter the United States.

 

US citizens are automatically US residents for US tax purposes. US tax rules and Canadian tax rules differ considerably. Unlike the Canadian taxation system which is based on the residence of the taxpayer, the US taxation system is based on the taxpayer’s citizenship. A US citizen is a US tax resident regardless of where he/she resides and where he/she earns income. If you become a US citizen, you will be required to file US tax returns and report your worldwide income even if you remain in Canada. In addition, you will be subject to the particularities of the US taxation system.

 

If you know you are a US citizen living in Canada or may be one under the rules identified above and you live in Canada, our team of experienced cross-border tax and estate planning lawyers can you help you navigate the complexities of the US taxation system.

 

The comments offered in this article are meant to be general in nature and are not intended to provide legal advice regarding any individual situation. Before taking any action involving your individual situation, you should seek legal advice to ensure it is appropriate for your circumstances.