Chapter 11: Saving the children – INA S. 301 – “Residence” vs. “Physical Presence” and transmission of US citizenship abroad

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NA S. 301 – “Residence” vs. “Physical Presence” and transmission of US citizenship abroad

The post raises two questions:

  1. Is a child born abroad to U.S. citizen parent(s) automatically a U.S. citizen? What are the conditions required to transmit U.S. citizenship? Who bears the burden of proving that those conditions have been met?
  2. Assuming that the child either acquires or is eligible for U.S. citizenship, should the parent register the birth at a U.S. Consulate or embassy?

The first question – is the child automatically a U.S. citizen at birth?

The United States can certainly specify conditions under which it will grant U.S. citizenship to someone born outside the United States. The question is whether the United States can impose U.S. citizenship on someone born outside the United States.

The rules for acquisition of U.S. citizenship at birth are found in S. 301 of the Immigration and Nationality Act and include:

Those born in the United States automatically acquire U.S. citizenship; and
Those born outside the United States to U.S. citizen parent(s) may acquire U.S. citizenship if certain external facts (think “citizenship” and U.S. “residence” of the parents) can be proven.
The following decision of the State Department describes the difference between “residence” and “physical presence”. The context of the decision adds weight (I think) to the argument that those born abroad to U.S. parents do NOT automatically acquire U.S. citizenship.

You can read the decision by clicking on the following pdf.

2-9-12 DOS Revocation of Certificate of Birth Abroad

The second question – should the child be registered?

The above tweet references a comment I made to a Wall Street Journal article (“When American Expats Don’t Want Their Kids To Have U.S. Citizenship”) on this question.

6:07 pm February 18, 2015
John Richardson wrote:
One of the above comments includes the following suggestion:

““I want my children to have access to both cultures and choose the one that suits them. That possibility outweighs the negatives of double taxation. They can always choose to give up their U.S. passport if they want.”

With respect this (IMHO) is very very bad advice.

Assuming it is true that a child born abroad to U.S. citizen parent(s) either IS or IS ENTITLED to U.S. citizenship, the child can either register or apply for that U.S. citizenship later. This should be the choice of the child and NOT the choice of the parent. By registering the child as a U.S. citizen the parent is sentencing the child to what is
widely understood to be the “prison of citizenship-based taxation” for life. Other U.S. laws (for example FATCA) restrict the business opportunities of U.S. citizens abroad.

Once registered as a U.S. citizen the child can (at the present time) relinquish U.S. citizenship. But, that will often result in very high cost. Many people are NOT aware that the U.S imposes an “Exit Tax” on certain U.S. citizens who relinquish their citizenship. In addition, there are the tax compliance fees. And get this, the U.S. actually
charges people $2350 for the privilege of NOT being an American. There is no country in the world that treats its citizens abroad so badly.

There are few countries in history that have imposed the kind of “Exit Taxes” the U.S. government is imposing.

The better policy is to NOT register the child as a U.S. citizen. The child can always make the choice to be a U.S. citizen once the child weighs the obligations/disadvantages of U.S. citizenship against the opportunities/advantages of U.S. citizenship.

Here is an interesting anecdote:

Mumbai immigration lawyer Poorvi Chothani’s client, a high net worth businessman, is being sued by his son because the father had got US citizenship by birth for him. (You can find the story through google.)

There are good reasons why the numbers of people relinquishing U.S. citizenship are increasing at an alarming rate!


2 thoughts on “Chapter 11: Saving the children – INA S. 301 – “Residence” vs. “Physical Presence” and transmission of US citizenship abroad”

  1. This is all well and good but it doesn’t consider the full implications; specifically, the law that states all US citizens must enter and exit the US on a US passport. I was told by the US Embassy Consular Office that I could be denied entry into the US if I attempted to enter with my child’s foreign passport. This was before I registered his birth with the US Embassy. So is this incorrect? Does anyone have proof that Customs and Borders will with certainty let a child who has an obvious right to US citizenship pass into the US on a foreign passport? For example, if only two of my three children have US passports, an obvious question from border control would be to ask why the third does not. What should my response be? Is it that child’s legal right to enter on a foreign passport? My Consular office said they couldn’t guarantee he would be allowed in. Why not? Again, are they (consular office) incorrect? I would like to know the DHS official stance on this issue.


  2. Sarah,

    The problem is that any US govt employee will see it one way and one way only. Consideration of situations outside that perception will not be considered.
    There is no perfect answer. Each parent will have to make their own decision. But for those with no desire to visit the US this is something to consider.
    I am going to go read the actual statute right now.


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