Article I, Section 8, Clause 4:

[The Congress shall have Power . . . ] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .

Apart from the general requirements for the naturalization of aliens in the United States, and the collective naturalization of certain classes of aliens, Congress has also addressed the naturalization of children born abroad to U.S. citizen parents. The concept of naturalization of foreign-born children may be traced to early English laws that allowed children born abroad to English subjects to inherit the rights of their parents.1 The Supreme Court has recognized that this concept of “nationality by descent” is rooted in statute rather than common law.2 According to the Court, “[p]ersons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” 3

From the outset, Congress has conferred citizenship on children born outside the United States to U.S. citizen parents. Under the original Naturalization Act of 1790, children of U.S. citizens born outside the United States were considered U.S. citizens unless their fathers had never resided in the United States.4 For the next two centuries, Congress continued to pass legislation providing for the naturalization of children born abroad to U.S. citizens if specified requirements were met.5

, sec. 102, § 322, 108 Stat. 4305, 4306–07. See also Wong Kim Ark, 169 U.S. at 672 (discussing early laws that conferred citizenship upon foreign-born children of U.S. citizens). These requirements included, among others, establishing a parent’s residence in the United States before the child’s birth; and, with respect to some earlier laws, proving the child’s continuous residence in the United States for specified periods if one of the parents was not a U.S. citizen.6

Footnotes

1

See United States v. Wong Kim Ark, 169 U.S. 649, 658, 668–72 (1898) (examining early English statutes).

2

Id. at 670–71.

3

Miller v. Albright, 523 U.S. 420, 424 (1998) (citing Wong Kim Ark, 169 U.S. at 703).

4

See Naturalization Act of 1790, ch. 3, § 1, 1 Stat. 103, 103–04 (repealed 1795).

5

See e.g., Naturalization Act of 1795, ch. 20, § 3, 1 Stat. 414, 415 (repealed 1802); Naturalization Law of 1802, ch. 28, § 4, 2 Stat. 153, 155; Naturalization Act of 1855, ch 71, 10 Stat. 604; Act of Mar. 2, 1907, ch. 2534, § 6, 34 Stat. 1228, 1229; Equal Nationality Act, ch. 344, sec. 1, § 1993, 48 Stat. 797, 797 (1934); Nationality Act of 1940, ch. 876, § 201, 54 Stat. 1137, 1138–39; Immigration and Nationality Act of 1952, Pub. L. No. 82-414, § 301, 66 Stat. 163, 235–36 (codified at 8 U.S.C. § 1401); Act of Nov. 6, 1966, Pub. L. No. 89-770, 80 Stat. 1322; Act of Oct. 27, 1972, Pub. L. No. 92-584, §§ 1, 3, 86 Stat. 1289, 1289; Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, § 12, 100 Stat. 3655, 3657; Immigration and Nationality Technical Corrections Act of 1994, Pub. L. No.

103-416

, sec. 102, § 322, 108 Stat. 4305, 4306–07. See also Wong Kim Ark, 169 U.S. at 672 (discussing early laws that conferred citizenship upon foreign-born children of U.S. citizens).

6

See e.g., Equal Nationality Act, sec. 1, § 1993; Nationality Act of 1940, § 201(c), (g); Immigration and Nationality Act § 301(a)(3), (a)(7), (b) (codified at 8 U.S.C. § 1401(c), (g)). The INA, as amended, contains the current governing provisions for the naturalization of children born abroad to U.S. citizens.