The road to US citizenship

Introduction

The United States population has quadrupled over the last 124 years, increasing from approximately 76 million in 1900 to 335 million in 2024. The current US population is the third largest population in the world after India and China, according to the US Census Bureau.

US citizenship rules are complex and there are several ­avenues that lead to US citizenship. The two primary foundations of US citizenship include acquisition (jus soli & jus sanguinis) and naturalization.

US citizenship endows citizens with certain rights, duties and benefits. These include the freedom to work and reside in US territory, the right to vote in US elections, the obligation to pay US taxes, the obligation to participate in jury duty or serve in the military, if conscripted. Additional benefits include consular protection when traveling abroad, the ability to sponsor foreign national relatives for US permanent residence, and even to transmit citizenship to ­children whether born in the US or abroad.

Showing proof of US citizenship can be required if a US citizen wishes to obtain lawful employment in the United States. The following documents are often accepted:

• US passport
• Certificates of citizenship
• Certificate of consular report of birth abroad
• US birth certificate

To obtain any of the above-mentioned documents, a ­person must first demonstrate that they are a US citizen or eligible to obtain US citizenship by virtue of the following methods discussed in this article.

Acquisition

Birthright citizenship

Most people have citizenship of one or more countries, and this is almost always acquired at birth. In the United States, there are two primary foundations of birthright citizenship. Namely, “jus soli” (by right of birth in US territory) and “jus sanguinis” (by virtue blood or descent).
Birth on US soil will automatically transmit citizenship¹ to the child even if the parents have no status in the United States. As such, this topic will not be discussed in this ­article.

Children born abroad to US citizen parent(s)

Many people born abroad may not realize that they are ­already US citizens. That is why it is important to assess whether a foreign national is already a citizen before applying for any visa or naturalization, since an application for a visa or naturalization could be denied if it is determined that the applicant is already a US citizen.

Certain foreign-born persons may already be US citizens by virtue of one or both of their parents being a US citizen. In such cases, the person would not need to naturalize since they are already US citizens. Instead, they would be eligible to apply for a US passport directly at a US consulate or from within the United States by virtue of a certificate of citizenship. However, there are usually additional requirements, namely, that the US citizen parent resided in the United States for at least five years, two of which were over the age of fourteen. This requirement will differ depending on when the child was born and whether the father, mother or both were US citizens at the time of the child’s birth. Congress has sought to curb the transmission of US citizenship over the years and has therefore amended the laws governing transmission of US citizenship to children born abroad numerous times. As a result, it is important to review the law in effect at the time of the child’s birth as this will govern the requirements of a claim to US citizenship.

One major challenge in cases like this is documenting a foreign-born individual’s claim to US citizenship because documentation demonstrating a US citizen parent’s residency in the United States may be difficult to obtain. However, consulting an immigration attorney can be a good idea if assistance is required to obtain or demonstrate this residence history.

Consular Report of Birth Abroad

A child born abroad to US citizen parents would be eligible to obtain proof of their US citizenship shortly after birth by applying for a Consular Report of Birth Abroad (CBRA) at a US consulate. A CBRA is a formal document certifying the acquisition of United States citizenship at birth for a child to whom US citizenship has been transmitted by ­virtue of their US Citizen parents. The process must be commenced by an application prior to the child’s 18th birthday. Should a child exceed age 18 without having ­applied, they will not be eligible to receive a CBRA and would have to establish citizenship through other means.

Derivation (after birth)

Derivation of citizenship is a method by which persons who live in the US, but who did not realize that they were entitled to citizenship, obtain citizenship automatically without the need to apply for naturalization. This could include a child who was born abroad to a non-US citizen (e.g., a green card holder) who later naturalized prior to the child reaching age 18.² Generally, the US citizen parent must meet certain residence requirements, such as being physically present in the United States or its outlying possessions for at least five years, two of which were after reaching age 14. However, the law in effect at the time of meeting the last qualifying condition for derivation of citizenship will be the determining factor. As such, this can be an extremely complex process, so thorough research and significant documentation will be required.

Naturalization

In 2022, exactly 969,380³ persons were naturalized in the United States. Naturalization is the ultimate benefit offered by US immigration authorities. Foreign nationals who are interested in becoming US citizens usually qualify after ­being in the United States after a specific duration. How­ever, this option is reserved for Lawful Permanent ­Residents (LPR’s) and persons on temporary work permits ordinarily would not qualify. For example, a worker on an L-1 visa would first need to obtain a Green Card before they would be eligible to naturalize.

Generally, individuals wishing to naturalize must be at least 18 years old and have held lawful permanent residence in the United States for between 36 months and 60 months depending on the individual’s specific circumstances. For example, spouses of US citizens are eligible to apply for naturalization after only three years of lawful permanent residence in the US whereas an LPR who entered as an immigrant pursuant to a valid employment-based immigrant visa would only be eligible to apply after 5 years. ­Applicants also need to demonstrate a sufficient understanding of the English language and the civic background of the US government and its history. Applicants are given two attempts to pass the English and civics test unless ­exempt from this requirement.

Naturalization applicants must submit form N-400 either by mail or online to the United States Citizenship & Immigration Service along with all required supporting documents. Current processing times can exceed six months; however, experience shows that online filings can result in slightly faster processing times.

Dual citizenship

Some persons may obtain two or even three nationalities at birth by virtue of the place they were born as well as the nationalities of their parents. For example, if a child is born in Germany to a dual USA/German citizen mother and a Spanish father, that child may be Spanish, German and a US citizen at the time of birth. Each country has very specific regulations about recognizing dual citizenship and some countries may not permit it at all. Some countries will require that a child selects their preferred nationality at the time that they reach the age of majority.

The United States permits US citizens to hold nationality and passports from foreign nations and thereby is a ­dual-citizen friendly country. Dual nationality has no effect on the rights and responsibilities of US citizens since they must comply with all obligations that would ordinarily be imposed on them. If a US national fails to comply with their obligations, such as filing US tax returns, or entering the United States on a US passport, there may be criminal implications. However, this will not present a risk of loss of the US citizen’s citizenship itself.

Loss of citizenship

There are numerous misconceptions about how a US citizen can be stripped of their citizenship. One such example includes voting in a foreign election. For example, in a landmark US case⁴ that reached the US Supreme Court, a person of Polish birth became a naturalized US citizen and later moved to Israel. In 1951, he voted in the Israeli legis­lative election. He later attempted to renew his US passport but was refused under a law which mandated that US citizens who vote in foreign elections would lose their citizenship. He appealed all the way to the US Supreme Court, arguing that being stripped of his US citizenship violated his 14th Amendment rights. The US Supreme Court agreed and held that the US government, specifically, US Congress, does not have the power to strip a citizen of their citizenship without their express assent thereto.

It is clear from the above example that a US citizen cannot easily lose their US citizenship unless by his or her own volition to renounce it. As such, there are only two ways a citizen can lose their citizenship, namely: denaturalization and expatriation, which includes, for example, voluntary revocation.

Denaturalization

Denaturalization⁵ requires the US government to institute proceedings against a naturalized citizen where good cause is shown that the citizen illegally procured US citizenship through, for example, concealment of a material fact or by willful misrepresentation.⁶ This could include a person who lied on their naturalization application and could take effect at any point once the misrepresentation is discovered. However, it cannot be arbitrarily applied in a way that would render naturalized citizens as second tier to birthright citizens since there must be a demonstration of good cause to institute denaturalization proceedings. It is therefore crucial to complete all US immigration forms transparently and honestly.

Expatriation of citizenship

The second manner in which a US citizen can lose their US citizenship is by expatriation. This provision applies to all US citizens blindly and therefore it makes no difference how citizenship was obtained. The right to relinquish US citizenship was first recognized by US congress by legislation enacted on 27 July 1868⁷.

However, no official mechanism was implemented which controlled the manner in which a citizen could renounce their US citizenship. In general, there must be an intentional act toward expatriation and US courts have consistently held that the right to US citizenship cannot arbitrarily be revoked. Such acts ­include, but are not limited to, taking up arms against the United States in the service of a foreign state, engaging in acts of treason and subversion, and making a formal renunciation of US nationality. For the purposes of this article, only the latter will be discussed briefly, since it is the most common.

US citizens who wish to relinquish their US nationality can make a formal renunciation thereof. Generally, these proceedings must be made before a US diplomatic or consular officer of the United States in a foreign country at a US consulate. Informal renunciations or declarations are not deemed sufficient to be effective. Furthermore, a valid ­renunciation will not exclude a former US citizen from ­financial, tax or criminal liability. Former US citizens will remain liable for numerous former liabilities and obligations even after a renunciation takes effect. The renunciation will only take effect once the US Department of State formally approves an application for a Certificate of Loss of Nationality of the United States.

Once a former US citizen has completely expatriated, they will irrevocably lose their nationality and will be treated as a foreign national in all respects. They will no longer ­reserve the right to benefits of US citizenship and will need visas if they wish to reenter the United States. As such, careful consideration must be taken prior to pursuing expatriation.

Summary

A significant amount of people are eligible to file applications to prove or obtain US citizenship, including numerous persons who are unaware that they are already US citizens. The varying requirements for demonstrating US citizenship can be complex and expensive. However, US citizenship can offer an array of benefits and protections, carrying with it all the rights and privileges enshrined in the US constitution. It can be an asset to numerous people who seek to work or reside in the United States without having to file visa applications and is worthy of consideration to those who are eligible.

¹ Immigration & Naturalization Act (“hereinafter INA”) § 301(a).
² INA § 322.2(a).
³ https://www.dhs.gov/ohss/topics/immigration/yearbook/2022
⁴ Afroyim v. Rusk, 387 US 253 (1967)
⁵ 8 USC §1451(a)-(h).
⁶ See Costello v. United States, 365 U.S. 265 (1961).
⁷ 1868 Act Concerning the Rights of American Citizens in Foreign States 15 Statutes at Large 223.