United States nationality law

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Article I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power "(t)o establish a uniform rule of naturalization." 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 the United States Congress in 2001.

Contents

[edit] Possession of citizenship

[edit] Rights of citizens

See also: Voting rights in the United States

Adult citizens of the United States who are residents of one of the 50 states or the District of Columbia have the right to fully participate in the political system of the United States, as well as their state and local governments (with most states having restrictions on voting by persons imprisoned for felonies, some states having restrictions on voting by people convicted of felonies, and a federal constitutional prohibition 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 abroad while residing abroad (regardless of the duration of the residence) – but only beyond the first $85,700 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 for possible reinstatement on 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] Birth within the United States

Main article: Birthright citizenship in the United States of America

The Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment,[2] although it has generally been assumed that they are.[3]. This has become controversial, as some non-residents enter the US as illegal aliens with the intent to give birth to children, often called anchor babies whose U.S. citizenship is unclear. A birth certificate is considered evidence of citizenship. This differs from most western nations; countries of the European Union which awarded citizenship to children born there (such as Ireland) closed this possibility.

In the case of United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a person who

  • is born in the United States
  • of parents who, at the time of his birth, are subjects of a foreign power
  • whose parents have a permanent domicile and residence in the United States
  • whose parents are there carrying on business and are not employed in any diplomatic or official capacity of the foreign power to which they are subject

becomes, at the time of his birth, a citizen of the United States, by virtue of the first clause of the 14th amendment of the Constitution.

The distinction between "legal" and "illegal" immigrants was not clear at the time of the decision of Wong Kim Ark.[4]

[edit] Through birth abroad to two United States citizens

See also: jus sanguinis

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

  1. Both parents were U.S. citizens at the time of the child's birth
  2. At least one 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:

  1. One of his or her parents was a U.S. citizen at the time of the person in question's birth;
  2. The citizen parent lived at least 5 years in the United States before his or her child's birth; and
  3. 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

A judge swears in a new citizen. New York, 1910
A judge swears in a new citizen. New York, 1910

A person who was not born a US citizen may acquire US citizenship through a process known as 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 (b) have been married to and living with a citizen for the past three years and (c) the spouse has been a US citizen for at least three years prior to the applicant applying for naturalization.) 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", and must pass a test on United States history and government.[5][6] Most applicants must also have a working knowledge of the English language.[5] There are exceptions, introduced in 1990, for long-resident older applicants and those with mental or physical disabilities.[7][8] This requirement for an ability to read, write, and speak English is not regarded as being too difficult, since the test requires that applicants read and write in English.

[edit] Citizenship test

Applicants for citizenship are asked ten questions, and must answer at least six correctly. U.S. Citizenship and Immigration Services has published a list of 96 sample questions (with answers), from which the questions asked are normally drawn. This list includes:

(U.S. Citizenship and Immigration Services)

The full list of questions can be found in the "A Guide to Naturalization" which is available for free from the USCIS.[9]

[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 [10] being conducted in the following cities:

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. Sample questions and answers can be accessed on the Immigration Test website.[11]

Besides passing citizenship tests, citizenship applicants must also satisfy other specific requirements of naturalization to successfully obtain US citizenship.[12]

[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, as of 2007, the U.S. Secretary of Labor (Elaine Chao) and the U.S. Secretary of Commerce (Carlos Gutierrez) cannot 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 highest-ranking naturalized people to be excluded from the Presidential Line of Succession were Henry Kissinger and Madeleine Albright, both of whom would have been fourth (as Secretary of State) had they been natural-born citizens.

Whether this restriction applies to children born to non-US citizens but adopted as minors by US citizens is a matter of some debate, since the Child Citizenship Act of 2000 is ambiguous 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 the United States 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 U.S. 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 of children

Effective 1 April 1995, 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.[13]

[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. To be eligible, a child must meet the definition of “child” for naturalization purposes under immigration law, and must also meet the following requirements: • The child has at least one United States citizen parent (by birth or naturalization) • The child is under 18 years of age • The child is currently residing permanently in the United States in the legal and physical custody of the United States citizen parent • The child has been admitted to the United States as a lawful permanent resident or has been adjusted to this status • An adopted child must also meet the requirements applicable to the particular provision under which they qualified for admission as an adopted child under immigration law.

[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). In Schneider v. Rusk 377 U.S. 163 (1964), the US Supreme Court ruled that a naturalized US citizen has the right to return to their native country and resume their former citizenship and also remain a US citizen, even if they never return to the United States.

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.[14]

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 people who maintain U.S. 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)

Not all U.S. nationals are U.S. citizens; all U.S. citizens are U.S. nationals. The U.S. passport bio-page shows one’s status as either a citizen or a non-citizen national.[15] Noncitizen U.S. nationals may reside and work in the United States without restrictions, and may apply for citizenship under the same rules as other resident aliens.

U.S. nationals who are not citizens cannot vote or hold elected office at the federal level. Depending on local laws and ordinances, they may or may not be able to do so at the State or Local level.

Further information: Voting rights in the United States, Right of foreigners to vote in the United States

[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 (with a few exceptions, such as municipal and local elections as opposed to presidential and other national elections). However, a line of U.S. Supreme Court decisions beginning with Afroyim v. Rusk 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.[16]

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, Internal Revenue Code, section 877), which in theory can result in loss of right to entry into the United States. However, the loss of right of entry (8 USC 1182(a)(10)(E)[17]) has never been enforced by the Attorney General since its enactment in 1996. Further, since the creation of the Department of Homeland Security in 2002, the Attorney General (Department of Justice) would no longer be empowered to bar a former U.S. citizen from entering the United States.

No new legislation has modified 8 USC 1182(a)(10)(E) to enable the DHS Secretary to bar a former U.S. citizen from entering the United States. Lastly, IRC section 877 and Revenue Rulings was modified in 2004 to discontinue the practice of the Internal Revenue Service issuing rulings to determine if a former U.S. citizen had a tax-related motive in renouncing U.S. citizenship. Instead, IRC section 877 establishes an objective test to determine if the section 877 regime will apply.

If the former U.S. citizen fails one of these objective tests, for the following ten years after the individual's expatriation he or she will be subject to the 877 regime. In practice, given the various modifications since the enactment of 8 USC 1182(a)(10)(E), that the U.S. government has never enforced 8 USC 1182(a)(10)(E) since its inception in 1996, a former U.S. citizen may freely travel to the U.S. subject to normal visa restrictions.

After a U.S. citizen satisfies the Department of State procedures, the Department of State issues a Certificate of Loss of Nationality ("CLN") signifying that the Department of State has accepted the U.S. Embassy/Consulate's recommendation to allow the renunciation.

It is also possible to forfeit U.S. citizenship upon conviction for an act of treason against the United States.[16]

[edit] References

  1. ^ Foreign Earned Income Exclusion. Retrieved on 2007-10-01.
  2. ^ The Heritage Foundation (2005). The Heritage Guide to the Constitution. Washington, DC: Heritage Foundation, 385-386. ISBN 159698001X. 
  3. ^ Erler, Edward J; Thomas G West, John A Marini (2007). The Founders on Citizenship and Immigration: Principles and Challenges in America. Lanham, MD: Rowman & Littlefield, 67. ISBN 074255855X. 
  4. ^ Ancheta, Angelo N (1998). Race, Rights, and the Asian American Experience. Brunswick, NJ: Rutgers University Press, 103. ISBN 0813524644. 
  5. ^ a b Naturalization. U.S.Citizenship and Immigration Services. Retrieved on 2007-10-01.
  6. ^ 22CFR:Code of Federal Regulations. U.S.Citizenship and Immigration Services. Retrieved on 2007-10-01.
  7. ^ Naturalization: Requirements for Naturalization. visapro.com. Retrieved on 2007-10-01.
  8. ^ David D. Murray. A Brief History Of US Immigration.... ilw.com. Retrieved on 2007-10-01.
  9. ^ A Guide to Naturalization. U.S.Citizenship and Immigration Services. Retrieved on 2007-10-01. (USCIS Publication M-476 (rev. 01/07)N)
  10. ^ New Test Questions and Answers from About.com
  11. ^ Sample English Sentences for the US Naturalization (Citizenship) Test. immigrationtest.org. Retrieved on 2007-10-01.
  12. ^ Overview of Requirements for US citizenship and Application Process. immigrationtest.org. Retrieved on 2007-10-01.
  13. ^ Expeditious naturalization forchildren born outside the United States. U.S. Department of State. Retrieved on 2007-10-01.
  14. ^ Dual Citizenship FAQ: Dual Nationality and United States Law. Personal website. Retrieved on 2007-10-01.
  15. ^ Samoa: Country Specific Information, U.S. Department of State, January 23, 2008, <http://travel.state.gov/travel/cis_pa_tw/cis/cis_1009.html>. Retrieved on 29 February 2008
  16. ^ a b Possible Loss of U.S. Citizenship and Dual Nationality. U.S. Department of State. Retrieved on 2007-10-01.
  17. ^ 8 USC 1182(a)(10)(E): "Former citizens who renounced citizenship to avoid taxation
    Any alien who is a former citizen of the United States who officially renounces United States citizenship and who is determined by the Attorney General to have renounced United States citizenship for the purpose of avoiding taxation by the United States is inadmissible."
    See 8 U.S.C. § 1182

[edit] See also

[edit] External links


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