8 USC 1401: Nationals and Citizens of the U.S. at Birth

Federal law lists everyone who becomes a U.S. citizen at birth in a single statute, 8 U.S.C. § 1401.¹ U.S. citizens at birth fall into four practical groups: people born on American soil, people born abroad to one or two citizen parents who meet specific physical-presence rules, people born in most U.S. territories, and children of unknown parentage found in the United States before age five. Which rules apply to you depends on where you were born, how many of your parents were citizens, and whether your parents were married when you were born.

Born on U.S. Soil

If you were born anywhere within the United States and are subject to its jurisdiction, you are a citizen at birth under 8 U.S.C. § 1401(a).¹ The rule comes directly from the Fourteenth Amendment, which declares that all persons born in the United States and subject to its jurisdiction are citizens.²

The phrase “subject to the jurisdiction thereof” carves out one narrow group: children born on U.S. soil to accredited foreign diplomats, who hold diplomatic immunity and are therefore not considered subject to U.S. jurisdiction. For everyone else, birth on American soil is enough. The Supreme Court confirmed this in United States v. Wong Kim Ark (1898), ruling that a man born in San Francisco to Chinese-national parents was a U.S. citizen even though his parents could never naturalize under the laws of that era.³

The statute also covers foundlings. A child of unknown parentage found in the United States before age five is presumed to be a citizen at birth, unless evidence surfaces before the child turns twenty-one showing otherwise.¹

The Status of the 2025 Executive Order

In January 2025, the president signed Executive Order No. 14160, which attempted to deny birthright citizenship to children born on U.S. soil if both parents were either unlawfully present or temporary visitors. Multiple district judges blocked it before it could take effect. A federal judge in Maryland issued a nationwide preliminary injunction, finding the order conflicted with the Fourteenth Amendment and over a century of Supreme Court precedent.² As of early 2026, the Supreme Court has agreed to review the case and the order remains on hold. The constitutional rule stands: if you are born on U.S. soil and subject to its jurisdiction, you are a citizen.

Born Abroad to U.S. Citizen Parents

Birth outside the United States does not disqualify you from citizenship at birth, but the requirements are more demanding than the domestic rule, and they turn on whether both of your parents were citizens, only one was, and whether they were married. A distinction runs through all of these rules. “Physical presence” means your parent was actually on U.S. soil. “Residence” means they maintained a home in the United States. The two are not interchangeable, and confusing them is where a lot of citizenship claims run into trouble.⁴

Both Parents Are U.S. Citizens

If both parents were citizens when you were born, only one of them needs to have resided in the United States or its territories at any point before your birth. There is no minimum duration and no age requirement. This is the simplest overseas scenario.¹

One Citizen Parent and One Non-Citizen

When only one parent is a U.S. citizen and the other is a foreign national, the citizen parent must have been physically present in the United States for at least five years before the child’s birth, and at least two of those years must have come after the parent turned fourteen.⁵ Time spent abroad on active military duty, working for the federal government, or living as the dependent of someone in those roles counts toward the physical-presence requirement.¹

A separate scenario applies when one parent is a citizen and the other is a U.S. national (someone from American Samoa or Swains Island, for instance). The citizen parent then needs only one continuous year of physical presence in the United States before the child’s birth.¹

Children Born Abroad Out of Wedlock

When the parents are not married, 8 U.S.C. § 1409 adds another layer, and the law has historically treated citizen mothers and citizen fathers differently. A child born abroad out of wedlock to a U.S. citizen mother acquires citizenship at birth as long as the mother was physically present in the United States for one continuous year at any point before the birth.⁶

For a U.S. citizen father, the bar is higher. The father must meet the same five-year physical-presence rule that applies under § 1401(g), and he must also satisfy four additional conditions before the child turns eighteen:

A blood relationship established by clear and convincing evidence.
Proof that the father was a U.S. citizen when the child was born.
A written agreement to support the child financially until age eighteen.
Legitimation of the child, a sworn written acknowledgment of paternity, or a court order establishing paternity.

All four steps must be completed while the child is still a minor.⁶ Miss the deadline and the child cannot claim citizenship through the father under this provision.

The gender gap in these rules was challenged in Sessions v. Morales-Santana (2017). The Supreme Court held that requiring citizen fathers to meet a five-year physical-presence threshold while requiring citizen mothers to meet only one year violated the equal-protection guarantee of the Fifth Amendment. The Court did not fix the disparity by extending the shorter requirement to fathers. It ruled that until Congress writes a uniform rule, the five-year requirement applies to everyone going forward.⁷ Congress has not acted since. The additional conditions for fathers under § 1409(a) remain in place, while the physical-presence rules are in a state of legal uncertainty for births after the decision.

Born in U.S. Territories

People born in the fifty states and the District of Columbia get their citizenship from the Fourteenth Amendment. People born in U.S. territories get theirs from Congress, which has enacted separate statutes for each territory. For most territories the practical result is the same: you are a citizen at birth. The legal basis matters, though, because what Congress grants Congress can change.

Puerto Rico: citizenship was first extended by the Jones-Shafroth Act of 1917 and is now codified at 8 U.S.C. § 1402.
Guam: persons born in Guam on or after April 11, 1899, are citizens at birth under 8 U.S.C. § 1407, a provision originating in the Immigration and Nationality Act of 1952.⁸
U.S. Virgin Islands: citizenship was first provided by statute in 1927 and is now codified at 8 U.S.C. § 1406.
Northern Mariana Islands: citizenship was established through a 1976 covenant with the United States.

The American Samoa Exception

American Samoa is the one U.S. territory where birth does not confer citizenship. People born there are U.S. nationals, not citizens. They carry U.S. passports (with a notation), can live and work anywhere in the United States without a visa, but cannot vote in federal elections or hold offices that require citizenship unless they naturalize.⁹¹⁰

Lawsuits have tried to change this. In Tuaua v. United States, the D.C. Circuit ruled that the Fourteenth Amendment does not automatically extend birthright citizenship to territorial residents, and the Supreme Court declined to hear the case in 2016. The Tenth Circuit reached the same conclusion in Fitisemanu v. United States (2021), reversing a district court that had sided with the plaintiffs.¹¹ One wrinkle to note: if a person born in American Samoa later has a child within the fifty states, that child is a U.S. citizen at birth under the Fourteenth Amendment, regardless of the parent’s status as a national rather than a citizen.⁹

Proving You Are a Citizen at Birth

Being a citizen at birth and being able to prove it are two different problems. If you were born in the United States, a certified birth certificate from the state where you were born is your primary evidence. When a birth certificate is unavailable, the State Department will accept secondary evidence such as hospital records, baptismal certificates, or school records created within the first five years of life.¹²

Consular Report of Birth Abroad

If you were born outside the United States to a citizen parent, the most important document you can have is a Consular Report of Birth Abroad (CRBA, Form FS-240). Your parents apply for it at a U.S. embassy or consulate, and it serves as official proof that you acquired citizenship at birth.¹³ The application must be filed before your eighteenth birthday. After that cutoff the process becomes significantly more complicated and requires coordination with the State Department’s Office of Overseas Citizens Services.¹⁴

Certificate of Citizenship

Adults who acquired citizenship at birth abroad but never received a CRBA can file Form N-600 with USCIS to obtain a Certificate of Citizenship. There is no age deadline for filing, but you will need to submit evidence that the statutory conditions were met at the time of your birth: the parent’s citizenship, their physical presence in the United States, and the parent-child relationship.¹⁵ The process can take a year or more.