Gender-Based Distinction for Acquiring U.S. Citizenship through Parents Held Unconstitutional

Until just a few days ago, individuals born abroad to U.S. citizen parents faced different standards in acquiring their U.S. citizenship depending on whether their mother or their father were U.S. citizens.

Under section 309 of the Immigration and Nationality Act (INA), if you were born abroad to an unwed U.S. citizen father before 1986, in order to derive citizenship through your father you would have to show that your father had ten years of physical presence in the United States prior to your birth with at least five of those years being after the age of 14. However, if you were born abroad to an unwed U.S. citizen mother, you could derive citizenship through her by only proving she had lived in the United States for one year at any point in time before your birth. The most recent version of the law (for those born after 1986) only requires five years of physical presence in the United States prior to the child’s birth with two of those years occurring after the age of 14.

The United State Supreme Court held that this division is unconstitutional under the Fifth Amendment’s Equal Protection Clause. The law was created at a time where it was acceptable to stereotype unwed fathers and mothers, and the stereotype associated with unwed fathers was that they did not care about or have contact with their non-marital children. To ensure that the child born abroad had strong ties to the United States, Congress enacted the residency requirement for the U.S. citizen father before he could pass citizenship on to his child born abroad. However, the U.S. Supreme Court has found that the government’s rationale for the gender-based distinction does not pass the Court’s scrutiny and the distinction can no longer be enforced.

Because the Supreme Court cannot make law, it cannot change the law to require that all children born abroad only prove their parents meet the one year of physical presence in the United States. But because the law as it stands is unconstitutional, the Supreme Court made a temporary rule until Congress passes a new law, or amends the current one, which states that children born to unwed U.S. citizen mothers must meet the same 5-year residency requirement as those born to unwed U.S. citizen fathers.

Children born abroad to parents who were married at the time of the child’s birth but only one parent has U.S. citizenship must prove the same 10- or 5-year physical presence as those born out of wedlock. Children born abroad to two U.S. citizen parents acquire U.S. citizenship at birth provided one of the parents had a residence in the U.S. prior to the child’s birth.

If you were born abroad and have questions about your citizenship or proving your citizenship, contact Joseph & Hall P.C. for a consultation with one of our attorneys. We would be happy to review your case.