U.S. citizenship determinations on children born out of wedlock in a foreign country.
(a) General.(1) A child born out of wedlock in a foreign country of an American citizen father and an alien mother does not automatically gain U.S. citizenship. The child must first be legally acknowledged by the father. Marriage to the mother may be required in order for the child to acquire U.S. citizenship. The father also must establish that he had at least 10 years of physical presence in the United States prior to the child's birth. Five of those years must have been spent in the United States after the father's 14th birthday. United States military service counts as physical presence in the United States. (See 8 U.S.C. 1101(c)(1), 1401(g), and 1409(c).) Whether the child gains the citizenship of its mother depends entirely upon the laws of the nation in which she is a citizen.
(2) A child born out of wedlock in a foreign country to an American citizen mother and an alien father or U.S. Citizen father gains U.S. citizenship at birth if the mother had been physically present in the United States for a continous period of 1 year prior to the child's birth. (See 8 U.S.C. 1409(c).) The child will gain the citizenship of the father only if the laws of the nation of which the father is a citizen so provide.
(b) Procedures for claiming U.S. citizenship rights.(1) A father desiring rights of U.S. citizenship for a foreign-born child must legally acknowledge the child as his own and prepare a case file. Each case is decided on its own merits. The Department of State, if the child is in a foreign nation, or the Immigration and Naturalization Service (INS), if the child is in the United States, will make the decision. Documents that may be important in supporting a citizenship determination are listed below:
(i) Proof of father's citizenship. This may consist of any of the following:
(A) A certified copy of his birth certificate (with a raised seal of the registrar of births).
(B) A report of birth abroad (FS Form 240 (Report of Birth Abroad of a Citizen of the United States)).
(C) A certificate of citizenship.
(D) A certificate of naturalization.
(E) A valid U.S. Passport.
(F) A certified copy of an approved U.S. passport application.
(G) Any secondary evidence acceptable by the State Department or INS.
(ii) Affidavit of paternity.
(iii) Proof of presence in the foreign country at time of conception. (This information can be extracted from the passport, DA Form 2-1 (Personnel Qualification Record—Part II), etc.).
(iv) Child's birth certificate.
(v) Proof of the father's physical presence in the United States for 10 years (5 after age 14).
(vi) Blood type tests of the mother, the father, and the child. (At the request of the examining officer.)
(vii) Two sworn affidavits (at the request of the examining officer) from individuals who personally knew the mother, father, and child at the time of birth and can identify the child.
(viii) A copy of a certified English translation of all needed legal documents that are in a foreign language.
(ix) An executed passport application with three signed pictures of the child.
(2) The soldier may consult a legal assistance attorney for help in preparing the case file. The case file should be taken to the nearest American Embassy, Consulate General, or Consulate in the country where he and his child live. If the father is not present in the country where the child lives, he will do one of the following—
(i) Take the necessary documents to the nearest American Embassy, Consulate General, or Consulate.
(ii) Mail the documents to the Department of State, ATTN: Office of Citizens Consular Service, WASH DC 20520. That office, in conjunction with the American Consul abroad, will decide if the child is a U.S. citizen.
(3) If both father and child are within the United States, a decision of citizenship status can be obtained from the INS. The soldier should file Form N-600 (Application for Certificate of Citizenship) at the nearest INS office. This form can be obtained from the INS. The appendix of AR 608-3 lists the location of INS offices.
(4) Any soldier who claims to be a U.S. citizen has the burden of proving that claim to the Department of State or INS, as applicable.
Title 32 published on 2012-07-01
no entries appear in the Federal Register after this date.
This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.