Birthright citizenship is the rule that a person born on U.S. soil is a United States citizen from the moment of birth, and that certain children born abroad to American parents are citizens at birth as well. The soil-based rule comes from the Fourteenth Amendment’s Citizenship Clause, which covers every person born in the country and subject to its jurisdiction.1Legal Information Institute. 14th Amendment The parentage-based rule comes from 8 U.S.C. § 1401 and related statutes, which spell out when citizenship passes from an American parent to a child born overseas.2Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth No application, hearing, or ceremony is required. The status attaches on its own.
Who Qualifies by Being Born in the United States
If you were born inside the country, you are a citizen. The Supreme Court settled the reach of that rule in 1898 in United States v. Wong Kim Ark, holding that a man born in San Francisco to Chinese nationals was a citizen under the Fourteenth Amendment regardless of his parents’ nationality.3Legal Information Institute. United States v. Wong Kim Ark The children of undocumented immigrants, tourists, and temporary visa holders all fall under U.S. jurisdiction and acquire citizenship at birth.
“The United States” for these purposes is defined broadly. Federal immigration law includes the fifty states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands.4Office of the Law Revision Counsel. 8 USC 1101 – Definitions A child born in any of these places is a citizen the same way a child born in Ohio is. People born in the CNMI after November 3, 1986 acquire citizenship at birth under the covenant that established the Commonwealth’s political union with the United States.5U.S. Department of State. 8 FAM 302.2 – Acquisition by Birth in the Commonwealth of the Northern Mariana Islands
The American Samoa Exception
American Samoa and Swains Island are the outliers. People born there are classified as U.S. nationals, not U.S. citizens.6Office of the Law Revision Counsel. 8 USC 1408 – Nationals but Not Citizens of the United States at Birth A non-citizen national can live and work anywhere in the country and carry a U.S. passport (annotated to reflect national rather than citizen status), but cannot vote in federal elections or hold certain government positions. Becoming a full citizen requires going through naturalization.7U.S. Department of State. Certificates of Non Citizen Nationality
The Narrow Exceptions to Birthright Citizenship on U.S. Soil
The Fourteenth Amendment’s phrase “subject to the jurisdiction thereof” creates a small set of exclusions:
- Children of accredited foreign diplomats with full immunity, who are not subject to U.S. jurisdiction in the ordinary legal sense.
- Children of foreign heads of state present on official visits, whose presence is treated as an extension of their home country’s sovereignty.
- Children born on foreign government vessels, such as a warship anchored in a U.S. port, who are considered to have been born under that foreign nation’s jurisdiction.
These exceptions cover a tiny fraction of births each year. They do not extend to children of ordinary foreign visitors or unauthorized immigrants, and federal courts have reaffirmed that repeatedly.
The 2025 Executive Order
On January 20, 2025, the White House issued an executive order titled “Protecting the Meaning and Value of American Citizenship,” directing federal agencies to stop recognizing citizenship for children born on American soil when the mother was unlawfully present or on a temporary visa and the father was not a citizen or lawful permanent resident.8The White House. Protecting The Meaning And Value Of American Citizenship Federal judges in Washington, Maryland, and Massachusetts blocked the order almost immediately, with one judge calling it “blatantly unconstitutional.” The Supreme Court granted review in Trump v. Barbara, heard oral arguments on April 1, 2026, and had not yet issued a decision at the time of this writing. The order has never taken effect. The existing rule remains in place: if you are born in the United States, you are a citizen. Parents of children born during this period of uncertainty should keep thorough documentation of the birth in case the situation shifts.
Who Qualifies by Being Born Abroad to a U.S. Citizen
Outside U.S. soil, citizenship does not attach based on geography. It passes from parent to child, and the requirements depend on how many parents are citizens and whether the parents are married.
Two Married U.S. Citizen Parents
A child born abroad to two married U.S. citizens is a citizen at birth as long as at least one parent lived in the United States or an outlying possession at some point before the child was born.2Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth There is no minimum duration. Even a brief prior period of living in the country satisfies it.
One Married U.S. Citizen Parent
When only one parent is a citizen, the bar is higher. 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. Physical presence means actual time inside U.S. borders, counted by day. Time abroad on active military duty, employment with the federal government, or work for qualifying international organizations can count toward the five-year total.2Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth
Claims fall apart here more often than people expect. A parent who left the U.S. at sixteen and never returned cannot meet the two-years-after-fourteen requirement, even after a full childhood in the country. Parents in this position should gather evidence of every trip back to the United States, down to boarding passes and passport stamps, because consular officers count the days carefully.
Unmarried U.S. Citizen Mother
The rules for children born out of wedlock are in a separate statute, 8 U.S.C. § 1409. An unmarried U.S. citizen mother transmits citizenship to a child born abroad if she was physically present in the United States for at least one continuous year at any point before the birth.9Office of the Law Revision Counsel. 8 USC 1409 – Children Born Out of Wedlock There is no minimum-age requirement. One unbroken year is enough.
Unmarried U.S. Citizen Father
An unmarried citizen father must meet the same five-year physical presence requirement that applies to married one-citizen cases, and must also satisfy all of the following before the child turns eighteen:
- Prove a blood relationship by clear and convincing evidence, which typically means DNA testing.
- Agree in writing to financially support the child until age eighteen.
- Establish legal recognition through legitimation under the child’s home-country law, a sworn written acknowledgment of paternity, or a formal court order of paternity.
All three requirements must be completed while the child is still a minor.9Office of the Law Revision Counsel. 8 USC 1409 – Children Born Out of Wedlock Missing the eighteenth birthday is fatal to the claim.
The Backup Path: Automatic Citizenship After Birth
Not every child born abroad to an American parent qualifies at birth. Some parents fall short of the physical presence thresholds. The Child Citizenship Act gives a second route: automatic acquisition of citizenship after birth, without a naturalization application.
Under 8 U.S.C. § 1431, a child born outside the United States automatically becomes a citizen when three conditions are met at the same time:
- At least one parent is a U.S. citizen, by birth or naturalization.
- The child is under eighteen.
- The child is living in the United States in the legal and physical custody of the citizen parent after being lawfully admitted as a permanent resident.
The moment all three overlap, citizenship attaches by operation of law. The same rule applies to adopted children who meet the immigration-law definition of “child.” For military families and federal employees stationed abroad, the residency requirement is treated as satisfied if the citizen parent is posted overseas on government orders and the child has a green card and lives with that parent.10Office of the Law Revision Counsel. 8 USC 1431 – Children Born Outside the United States; Conditions Under Which Citizenship Automatically Acquired Formal proof is obtained by filing Form N-600 with USCIS, with a current filing fee of $1,385.
Dual Nationality
A child who acquires U.S. citizenship at birth may simultaneously be a citizen of another country under that country’s laws. The State Department’s official position is that U.S. law does not force anyone to choose between American citizenship and a foreign nationality. A dual national owes allegiance to both countries, must obey both countries’ laws, and must use a U.S. passport when entering and leaving the United States. The other country may not be as accommodating: some nations require citizens to renounce foreign nationalities by a certain age, and U.S. consular protection can be limited inside a country that also treats you as its citizen.11U.S. Department of State. Dual Nationality Check the other country’s rules early, because registration and renunciation deadlines can be unforgiving.
How to Document the Citizenship You Already Have
Citizenship is automatic, but proving it requires paperwork. The document you need depends on where the birth happened.
Born in the United States
A certified birth certificate issued by the city, county, or state of birth is the primary proof. The certificate must show the applicant’s full name, date and place of birth, the parents’ names, the registrar’s signature, a date filed within one year of birth, and the official seal of the issuing office.12U.S. Department of State. Get Citizenship Evidence for a U.S. Passport Fees for a certified copy vary by jurisdiction, generally $10 to $35.
If no birth certificate was filed within a year of birth, or the original record was lost, secondary evidence can be submitted. Federal regulations accept hospital birth records, baptismal certificates, early medical and school records, and sworn statements from people with personal knowledge of the birth. Secondary evidence must have been created shortly after the birth, generally within five years.13eCFR. 22 CFR Part 51 Subpart C – Evidence of U.S. Citizenship or Nationality
Born Abroad to a U.S. Citizen
Parents of a child born overseas should apply for a Consular Report of Birth Abroad as soon as possible after the birth. The CRBA is official proof of the child’s citizenship and carries the same legal weight as a domestic birth certificate. The application uses Form DS-2029, which collects parent biographical information, birth details, and evidence of the citizen parent’s physical presence in the United States.14U.S. Department of State. Birth of U.S. Citizens and Non-Citizen Nationals Abroad
When only one parent is a citizen, or when the child was born out of wedlock to a citizen father, parents also complete Form DS-5507, which documents the citizen parent’s periods of physical presence in the United States in detail.14U.S. Department of State. Birth of U.S. Citizens and Non-Citizen Nationals Abroad Tax returns, school transcripts, employment records, and passport stamps help verify those claims. The application requires an in-person appointment at the nearest U.S. Embassy or Consulate, where a consular officer reviews originals, interviews the parents, and decides whether the child meets the statutory requirements. The CRBA filing fee is $100.15U.S. Embassy in Switzerland. 2026 Schedule of Fees for Consular Services
Whichever document establishes citizenship, keep it somewhere secure. Replacing a birth certificate, CRBA, or Certificate of Citizenship means going through the same application process, and the same fees, all over again.