So the question is not whether the child can “become” a US citizen, but rather how the parents can go about documenting the fact of the child’s citizenship.
The law on US citizenship for children born outside the US depends on when the child was born, whether one or both parents are US citizens, and how long each parent lived in the US prior (not necessarily immediately prior) to the child’s birth. A table describing US law on this subject during the 20th century (for children born in wedlock) can be found on the Web site of Buffalo immigration lawyer Joe Grasmick. Check with a US consulate for an exact interpretation of the rules with regard to a specific situation; however, here’s a summary of the rules as they pertain to children born now or in the recent past.
For children born abroad since 14 November 1986 to a married couple consisting of two US citizens, at least one of the parents must have “had a residence” in the US at some time in his or her life, prior to the child’s birth. Judging by what I was told in early 1994 by the US consulate in Toronto when I applied to have my son (born in Canada) registered as a US citizen, US officials seem to define “residence” in the US as being physical presence in the US for a total of at least one year prior to the child’s birth. However, the actual law (as enacted by Congress) does not impose this interpretation.
For children born abroad since 14 November 1986 to a married couple consisting of one US citizen and one non-citizen, the American parent must have been “physically present” in the US for a total of at least five years prior to the birth of the child. Further, at least two years out of this five-year period must have been after the parent reached age 14 (e.g., no good if you lived in the US from birth till age five, then left the country never to return). From 24 December 1952 to 14 November 1986, the minimum requirement was ten years (five years of which had to have been after the parent’s 14th birthday).
The time spent in the US need not have been immediately prior to the child’s birth, and it is possible to combine multiple separate periods of physical presence in the US to reach the required figures. Additionally, time spent in US territories or possessions can be counted – as can time spent abroad in the US military, in US government employment, or as a dependent spouse or child of someone posted abroad under such circumstances.
These rules are designed to prevent the proliferation of generation after generation of “Americans” who would be citizens by descent without ever having set foot in the US.
Different rules apply to a child born out of wedlock outside the US. If the mother of an “illegitimate” child is a US citizen, her foreign-born child is a US citizen by birth if she had ever spent at least one year’s worth of continuous literal, physical presence in the US. If the father is a US citizen (and the mother is not), the child is a US citizen only if the father’s paternity is formally established and if the father has agreed to support the child. (This more stringent requirement for an American father to pass along US citizenship to a foreign-born illegitimate child may seem discriminatory, but it was upheld by the Supreme Court in a 2001 case, Nguyen v. INS.)
An American who has a child born outside the US should contact the nearest US embassy or consulate as soon as possible, to request an application for a Consular Report of Birth Abroad. This form needs to be filled out by both parents and returned with payment (currently US$65 or the local equivalent, money order or cash only, personal checks or credit cards not accepted, check with the consulate in advance to be sure the required fee hasn’t changed) and supporting documents including parents’ birth certificates, marriage certificate, passports, and the child’s own birth certificate. For the supporting documents to be returned, you must enclose sufficient local postage for registered mail (ask the consulate for the required amount), or else bring everything in person to the consulate (in which case they will prepare the certificate while you wait; expect the process to take about an hour).
Note, once again, that a child born abroad under these circumstances is a US citizen by birth (in addition to possibly being a citizen of the country of birth). The “consular report of birth abroad” is not a bestowal of US citizenship, but simply an acknowledgment of same.
- Is a child born outside the US to American parents legally eligible to become President?
Most likely yes.
The US Constitution (Article II, Section 1, Subsection 4) says: “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.”
The term “natural born citizen” is not used anywhere else in the Constitution, and it has never been the subject of any federal court ruling. Hence, its exact meaning could be subject to controversy.
While some have suggested that perhaps a “natural born citizen” must have been born on US territory (i.e., in keeping with the definition of a citizen given in the 14th Amendment), other legal experts believe the term refers to anyone who has US citizenship from the moment of his or her birth – i.e., someone who did not have to be “naturalized” because he/she was born “natural” (i.e., born a citizen).
The first Congress enacted a citizenship law which stated that “the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens”. [Act of Mar. 26, 1790, ch. 3, 1 Stat. 104.] This strongly suggests that the phrase was understood by the framers of the Constitution to refer to citizenship by birth.
At least three Presidential candidates in recent memory were born outside the US proper:
* Barry Goldwater, the 1964 Republican candidate, was born in the Arizona Territory in 1909 (Arizona did not become the 48th state until 1912).
* George Romney, a 1968 Republican hopeful, was born in Mexico in 1907 to American parents who had moved there to escape anti-Mormon persecution in the US.
- John McCain, was born in the Panama Canal Zone in 1936 to American parents.
