Transmission of U.S. Citizenship to Children Abroad

The Immigration and Nationality Act (INA) delineates a dizzying number of methods to obtain U.S. citizenship. The most familiar option was solemnized in the Fourteenth Amendment to the U.S. Constitution, which pronounces, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof … citizens of the United States.”1 Congressional legislation also has spawned multiple categories of statutory citizens, for example, children who derive citizenship when their parents naturalize or who acquire it automatically through birth abroad to citizen parents.2 It is this last group of citizens—those whose parents transmitted citizenship at their births overseas—whom this Briefing primarily addresses.

The Briefing is structured as follows. First, I outline the transmission provisions in the INA that are the springboard for the rest of the piece. Next, I analyze the impact of the Supreme Court's decision in Sessions v. Morales-Santana3 not only on the primary issue addressed—out-of-wedlock children's acquisition of citizenship at birth—but also on crucial doctrinal questions, including the levels of scrutiny applicable to constitutional challenges in the immigration context (rational basis versus heightened review), and alternate methods of assessing whether citizenship statutes that treat mothers and fathers differently are out of step with modern equal protection concepts (for example, motivated by the “biological reality” of giving birth versus assumptions about custody).

Finally, I address the growing rift between the federal courts and the executive agencies on whether biological links (gestation and/or genetics) necessarily determine whether U.S. citizenship has been transmitted. The discussion includes an analysis of Morales-Santana's effect on this growing line of federal cases and touches on available remedies when the agencies deny claims incorrectly.

The remainder of this piece is available at

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