TaxMatters@EY - May 2013
A guide to US citizenship
Elizabeth (Beth) Nanton, Egan LLP – Vancouver
Given the complexity of US citizenship and nationality law, it’s not surprising that many people have no knowledge of their US citizen status. Such people are often referred to as “accidental Americans” because an individual can obtain US citizenship “accidentally” by birth in the US1, through birth abroad to a US-citizen parent, or as the result of a parent’s naturalization. If the legal requirements for citizenship are met, then a person becomes a US citizen by operation of law, irrespective of their intent.
Below is a brief summary of the current rules regarding acquisition and renunciation of US citizenship.
US citizenship by birth in the United States
Jus soli (the law of the soil) is a common law rule under which a person’s place of birth determines his or her citizenship. The principle of jus soli is embodied in the Fourteenth Amendment to the US Constitution and various US citizenship and nationality statutes, including the Immigration and Nationality Act (INA). Thus, nearly all persons born in the US are endowed with US citizenship. US citizenship may be acquired by a child born in the US even if his or her parents were in the country temporarily or illegally.
There is one exception. INA 301(a) provides that persons born in the US and subject to the jurisdiction thereof acquire US citizenship at birth. Therefore, children born in the US to foreign sovereigns, consuls, diplomats and other people who are not subject to US law are not considered US citizens at birth.
Jus sanguinis (the law of the bloodline) is a civil law rule under which a person’s citizenship is determined by the citizenship of one or both parents. The principle is often referred to as “citizenship by descent” or “derivative citizenship.”
Jus sanguinis is not embodied in the US Constitution. Citizenship by descent is, however, granted under US statute. The statutory requirements for conferring and retaining derivative citizenship have changed significantly over time. In order to determine whether US citizenship is transmitted in a particular person’s case, you need to look to the laws that were in effect at the time the person was born.
Birth abroad to two US-citizen parents in wedlock
Pursuant to INA 301(c), a person born abroad to two US-citizen parents is deemed to have acquired US citizenship at birth if at least one of the parents resided in the United States or one of its outlying possessions prior to the child’s birth. No specific period of time is required. In this context, a child is considered to be born in wedlock if the child is the genetic issue of a married couple.
Birth abroad to one US-citizen parent in wedlock
A child born abroad in wedlock on or after 14 November 1986 acquires US citizenship if the child has one US-citizen parent who was physically present in the US or one of its outlying possessions for at least five years prior to the child’s birth. At least two of the five years must have accrued after the US -itizen parent reached the age of 14.
Under INA 301(g), a child born abroad in wedlock between 24 December 1952 and 13 November 1986 is deemed a US citizen provided that one US-citizen parent was physically present in the US for a period of at least 10 years prior to the birth of the child. At least five of those years must have accrued after the US-citizen parent reached the age of 14.
Birth abroad of an out-of-wedlock child with a US-citizen mother:
Under INA 309(c), a person born abroad out of wedlock is considered a US citizen if the mother was a US citizen at the time of the birth and physically present in the US or one of its outlying possessions for a continuous period of one year prior to the birth.
Birth abroad of an out-of-wedlock child with a US-citizen father:
Under INA 309(a), a person born abroad out of wedlock with a US-citizen father acquires US citizenship under INA 301(g) provided that the following conditions are met:
- A blood relationship between the person and the US-citizen father is established by clear and convincing evidence
- The father was a US national at the time of the birth
- The father was physically present in the US or its outlying possessions for at least five years prior to the child’s birth, at least two of which were after reaching the age of 14
- The father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18
- While the person is under the age of 18:
- The person is legitimated under the law of his or her residence or domicile;
- The father acknowledges paternity in writing under oath; or
- The paternity is established by adjudication of a competent court
Birth abroad of an out-of-wedlock child with a US-citizen father under the “old” INA 309(a)
The “old” INA 309(a) applies to individuals who were 18 years of age on 14 November 1986, as well as individuals whose paternity was legitimated prior to that date.
People who were between 15 and 17 years of age on 14 November 1986 may elect to have their claim to US citizenship determined in accordance with either the old or the new INA 309(a).
A child born out of wedlock to a US-citizen father is eligible for US citizenship under the former INA 301(a)(7) — as made applicable by the former INA 309(a) — if the following conditions are met:
- Prior to the person’s birth, the father had been physically present in the US or one of its outlying possessions for at least 10 years, five of which were after the age of 14
- The person’s paternity had been legitimated prior to the child reaching the age of 21
Renunciation of US citizenship
Once an individual acquires US citizenship, it is difficult to lose. The process of renunciation is quite complex and involves many considerations.
A person cannot avoid an outstanding tax liability by formally renouncing US citizenship, as renunciation can typically only occur after all outstanding tax filings and tax debts have been resolved. Moreover, individuals who renounce US citizenship may be subject to expatriation taxes and special reporting requirements upon departure.
It’s important to note that persons who renounce US citizenship will then be subject to US immigration laws and regulations, just like all other non-citizens.
In light of the potential consequences, it is recommended that anyone considering renouncing their US citizenship seek professional advice before taking any action.
If you have any questions concerning US citizenship or renunciation, please consult with a US immigration attorney at Egan LLP, a business immigration boutique firm allied with EY in Canada.
For questions relating to the tax implications of US citizenship or renunciation, please contact your EY advisor.
1. For citizenship purposes, the “United States” refers to the continental US, Alaska, Hawaii, Puerto Rico, Guam and the Virgin Islands [INA 101(a)(38)], as well as US ports, harbours, bays and other territorial waters. By virtue of Public Law 94-241, persons born in the Northern Mariana Islands after 4 November 1986 are also considered US citizens.