Birth Abroad --Citizenship through a U.S. Citizen parent

Again, date of birth governs which version of 309(a) applies. 

Children born out of wedlock claiming citizenship through a U.S. citizen father follow the general requirements as do children born in wedlock.  This applies where:

• A blood relationship between the child and the father is established by clear and convincing evidence;
• The child’s father was a U.S. citizen at the time of the child’s birth; 
• The child’s father (unless deceased) has agreed in writing to provide financial support for the child until the child reaches 18 years of age (may be dated at any time before the child’s 18th birthday); AND

One of the following criteria is met before the child reaches 18 years of age:

• The child is legitimated under the law of his or her residence or domicile;
• The father acknowledges in writing and under oath the paternity of the child; or
• The paternity of the child is established by adjudication of a competent court.

In addition, the residence or physical presence requirements under INA §301 continue to apply to children born out of wedlock who claim citizenship through their fathers.

Some examples of financial support documents that the USCIS may consider include: 

• A previously submitted Affidavit of Support (Form I-134 or I-864);​
• Military Defense Enrollment Eligibility Reporting System (DEERS) enrollment;​
• Written voluntary acknowledgement of a child in a jurisdiction where there is a legal requirement that the father provide financial support; 
• Documentation establishing paternity by a court or administrative agency with jurisdiction over the child’s personal status, if accompanied by evidence from the record of proceeding establishing the father initiated the paternity proceeding and the jurisdiction legally requires the father to provide financial support; or ​
• A petition by the father seeking child custody or visitation with the court of jurisdiction with an agreement to provide financial support and the jurisdiction legally requires the father to provide financial support. 

  The rules that determine whether a child born out of wedlock outside of the United States derives citizenship at birth from his or her U.S. citizen mother vary depending on when the child was born.  

Child Born On or After December 23, 1952 and Before June 12, 2017A child born between December 23, 1952 and June 12, 2017 who is born out of wedlock outside of the United States and its outlying possessions acquires citizenship at birth if:

• The child’s mother was a U.S. citizen at the time of the child’s birth; and
• The child’s U.S. citizen mother was physically present in the U.S. or one of its outlying possessions for 1 continuous year prior to the child’s birth. 
• 
  

Child Born On or After June 12, 2017A child born on or after June 12, 2017, who is born out of wedlock outside of the United States or one of its outlying possessions acquires citizenship at birth if:

• The child’s mother was a U.S. citizen at the time of the child’s birth; and​
• The child’s U.S. citizen mother was physically present in the U.S. or one of its outlying possessions for at least 5 years prior to the child’s birth (at least 2 years of which were after age 14). 

Effect of Sessions v. Morales-Santana Decision -- The Equal Protection Act requires the same physical presence requirements for the mother as exists for the father. Prior to the U.S. Supreme Court’s decision in Sessions v. Morales-Santana, the physical presence requirements for children born out of wedlock were different for a child acquiring citizenship through a U.S. citizen mother than for those acquiring through a U.S. citizen father. An unwed U.S. citizen mother could transmit citizenship to her child if the mother was physically present in the U.S. for 1 continuous year prior to the child's birth. An unwed U.S. citizen father, by contrast, was held to the longer physical presence requirement of 5 years (at least 2 years of which were after age 14) in the U.S. or one of its outlying possessions. On June 12, 2017, the U.S. Supreme Court held, in Sessions v. Morales-Santana, that the different physical presence requirements for an unwed U.S. citizen father and an unwed U.S. citizen mother violated the U.S. Constitution’s Equal Protection Clause. The U.S. Supreme Court indicated that the 5 years of physical presence (at least 2 years of which were after age 14) requirement should apply prospectively to all cases involving a child born out of wedlock outside the United States to one U.S. citizen parent and one foreign national parent, regardless of the gender of the parent. The U.S. Supreme Court decision effectively eliminated, prospectively, the 1-year continuous physical presence requirement that previously applied to unwed U.S. citizen mothers, and replaced it with the higher physical presence requirement that previously applied to unwed U.S. citizen fathers.  After Sessions v. Morales-Santana, the 1-year continuous physical presence requirement remains in effect only for those children born prior to June 12, 2017 outside of the United States to unwed U.S. citizen mothers.  

A child born before 6/12/2017 acquires at birth if the U.S. citizen father first meets INA 309(a).  By the terms of 309(a), INA 301 then applies allowing either parent to establish that he or she has had a residence in the U>S. prior to the child's birth. 

If the father did not satisfy INA 309(a), the child may acquire through the mother under appropriate 309 and 301 provisions.

A child born on or after 6/12/2017whose father does not satisfy INA 309(a) will benefit from legal counsel.  Adjudicators are instructed to get guidance when they encounter a  child whose father did not satisfy INA 309(a) but whose mother or father or whose mother resided in the U.S. at any time prior to the child's birth.