Citizenship by Naturalization in the United States

Naturalization is the legal process by which a person becomes a citizen of another country at some time after birth. Congress has the exclusive power to provide for naturalization. No State may do so (Article I, Section 8, Clause 4 of the Constitution).

Background

As it was originally written, the Constitution mentioned both “citizens of the United States” and “citizens of the States.” It did not define either of those phrases, however. Through much of America’s early history, it was generally agreed that national citizenship followed that of the States.

The coming of the Civil War and the adoption of the 13th Amendment in 1865 raised the need for a constitutional definition. (In the Dred Scott case (Scott v. Sandford) in 1857, the Supreme Court had ruled that neither the States nor the National Government had the power to confer citizenship on African Americans-slave or free. The dispute over that issue was one of the several causes of the Civil War). That need was finally met in 1868 by the 14th Amendment, which begins with these words: “All persons born or natural-ized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Thus, the 14th Amendment declares that a person can become an American citizen either by birth or by naturalization. The chart on page 615 summarizes the means by which American citizenship can be acquired.

Citizenship by Birth

Note: For further information, click here.

Some 260 million Americans-nearly 90 percent of us-are American citizens because we were born in the United States. Another several million are also citizens by birth, even though they were born abroad. Citizenship by birth is determined by either jus soli or jus sanguinis.

Jus soli is the law of the soil, or where one is born. The 14th Amendment confers citizenship according to the location of a person’s birth: “All persons born … in the United States. …” Congress has defined the United States to include, for purposes of citizenship, the 50 States, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and the Northern Mariana Islands. It also includes American embassies and American public vessels anywhere in the world. Until 1924, Native Americans born to tribal members living on reservations were not citizens.

Jus sanguinis is the law of the blood, or to whom one is born. A child born abroad can become an American citizen at birth under certain circumstances described in this legal Encyclopedia. The child must be born to at least one parent who is a citizen, and who has at some time lived in the United States.

The 14th Amendment does not provide for jus sanguinis, but Congress has included it as a part of American citizenship law since 1790. The constitutionality of the rule has never been challenged.

Individual Naturalization

Naturalization is most often an individual process, conducted by a court. More than 800,000 aliens now become naturalized American citizens each year. An alien is a citizen or national of a foreign state living in this country.

Generally, any person who has come to the United States as an immigrant can be naturalized. There are different ways that people can become American citizens. Naturalization of both parents (one parent if divorced or the other is dead) automatically naturalizes children under 16 who reside in the United States. Adopted children born abroad are automatically naturalized if under 18 when adoption becomes final.

The U.S. Citizenship and Immigration Services in the Department of Homeland Security investigates each applicant, and then reports to the judge of the federal or State court overseeing the petition for naturalization. If the judge is satisfied, the oath or affirmation is administered in open court, and the new citizen receives a certificate of naturalization.

Collective Naturalization

At various times entire groups have been naturalized en masse. This has most often happened when the United States has acquired new territory. As the chart on the next page indicates, those living in the areas involved were naturalized by a treaty or by an act or a joint resolution passed by Congress.

The largest single instance of collective naturalization came with the ratification of the 14th Amendment, however. The most recent instance occurred in 1977, when Congress gave citizenship to the more than 16,000 native-born residents of the Northern Mariana Islands.

Rules of Naturalization

To become a naturalized citizen, a person must:

• be, in most cases, at least 18 years old *have entered the country legally, lived in the United States for at least five years (for husbands or wives of citizens, three years)
• file a petition for naturalization with the clerk of a Federal district court or a State court of record
• be literate in the English language
• be “of good moral character,” “attached to the principles of the Constitution,” and “well disposed to the good order and happiness of the United States”
• have “a knowledge and understanding of the fundamentals of the history, and the principles and form of government, of the United States”
• take an oath or affirmation in which he or she absolutely renounces any allegiance to any foreign power and promises to “support and defend the Constitution and laws of the United States against all enemies, foreign and domestic”

Citizenship by Naturalization Policies

“We have to deal with the 11 million individuals who are here illegally. We all agree that these men and women should have to earn their way to citizenship. But for comprehensive immigration reform to work, it must be clear from the outset that there is a pathway to citizenship. We’ve got to lay out a path — a process that includes passing a background check, paying taxes, paying a penalty, learning English, and then going to the back of the line, behind all the folks who are trying to come here legally. That’s only fair.” (President Barack Obama, January 29, 2013)

It is just not practical to deport 11 million undocumented immigrants living within the U.S. borders. President Obama’s proposal tried to provide undocumented immigrants a legal way to earn citizenship that will encourage them to come out of the shadows so they can pay their taxes and play by the same rules as everyone else. Immigrants living in the United States illegally, according to his policy, must be held responsible for their actions by passing national security and criminal background checks, paying taxes and a penalty, going to the back of the line, and learning English before they can earn their citizenship. (see below)

Obama Administration’s Proposal

There will be no uncertainty about their ability to become U.S. citizens if they meet these eligibility criteria. The proposal will also stop punishing innocent young people brought to the country through no fault of their own by their parents and give them a chance to earn their citizenship more quickly if they serve in the military or pursue higher education.

Main elements: (from the Whitehouse website)

• Create a provisional legal status. Undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Agricultural workers and those who entered the United States as children would be eligible for the same program. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits, including subsidies or tax credits under the new health care law.
• Create strict requirements to qualify for lawful permanent resident status. Those applying for green cards must pay their taxes, pass additional criminal background and national security checks, register for Selective Service (where applicable), pay additional fees and penalties, and learn English and U.S. civics. As under current law, five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident.
• Earned citizenship for DREAMers. Children brought here illegally through no fault of their own by their parent will be eligible for earned citizenship. By going to college or serving honorably in the Armed Forces for at least two years, these children should be given an expedited opportunity to earn their citizenship. The President’s proposal brings these undocumented immigrants out of the shadows.
• Create administrative and judicial review. An individual whose provisional lawful status has been revoked or denied, or whose application for adjustment has been denied, will have the opportunity to seek administrative and judicial review of those decisions.
• Provide new resources to combat fraud. The President’s proposal authorizes funding to enable DHS, the Department of State, and other relevant federal agencies to establish fraud prevention programs that will provide training for adjudicators, allow regular audits of applications to identify patterns of fraud and abuse, and incorporate other proven fraud prevention measures.