This discussion of US citizenship is intended to cover persons who reside outside the United States and are uncertain about their US citizenship status. Essentially, those who were born in the United States are citizens. Those who were born outside the United States to one or two US citizen parents are certainly entitled to US citizenship, assuming they or their parents can prove the requisite “residence” or “physical presence” required by the INA provision applicable to their situation. In complicated situations, the US Congress has ultimate authority to determine the US citizenship of persons born outside the United States to US citizen parents.
Section 301 of The Immigration and Nationality Act of 1952 (“INA”) defines who “shall be nationals and citizens of the United States at birth”. Subsection (a) simply repeats the words of Section 1 of the Fourteenth Amendment without the reference to naturalization. Subsection (b) contains a specific provision which extends citizenship to “a person born in the United States to a member of an Indian, Eskimo, Aleutian or other aboriginal tribe” without depriving such persons of their rights to tribal citizenship or other property. Interestingly, these two subsections refer to “a person born in the United States” and do not include any reference to “persons born in its outlying possessions”. That phrase, which also does not appear in Section 1 of the Fourteenth Amendment, does appear in other subsections of Section 301 to define persons who are considered US citizens at birth.
Section 301(c) covers “a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom had a residence in the United States or one of its possessions, prior to the birth of such person.” This begins a series of provisions that limit the scope of “citizenship at birth” within the overall concept of jus sanguinis or citizenship “by right of blood”. In this case, if both child’s parents are US citizens but neither one “had a residence” in the United States prior to the child’s birth, their children are not US citizens at birth.
There are other provisions of the INA that address the citizenship of people who reside in the US, such as the Child Citizenship Act of 2000 (Pub. L. No. 106-395, 114 Stat. 1631 (October 30, 2000), but they are not relevant to this article.
The INA is codified under Title 8, Aliens and Nationality, of the US Code. Section 301 of the INA is codified as 8 USC 1401 and so on. Before the INA was enacted, a variety of statutes governed immigration to the US but they were not organized within one body of text. The INA was the first major overhaul of US immigration laws since the late 1800’s and replaced all prior immigration laws. Passage of the Fourteenth Amendment and the Supreme Court’s decision in the Wong Kim Ark case limited the role Congress could play in determining US citizenship of persons born in the United States. As can be seen, Congress did extend the scope of citizenship by birth to persons born outside the United States proper by legislation.
The term “national” is not synonymous with “citizen”. Section 308 extends nationality without citizenship to persons who are born in one of two US possessions (American Samoa and Swains Island) or through descent from a person born in one of those two possessions. Guam, Puerto Rico and the US Virgin Islands fell into the same category until granted full citizenship by Congress (see INA Sections 302, 306, and 307). People who are US nationals may live and work in the United States without restriction, but cannot vote or hold elective office. They may apply for citizenship under the same rules as resident aliens.