Derivative U.S. citizenship is based on an individual’s parents being U.S. citizens. Everyone who is born in the United States, including Puerto Rico, is a U.S. citizen. When U.S. citizens have children outside of the United States, perhaps while visiting another country, their children can also be U.S. citizens.
If Puerto Rico were to become independent, even with a Compact of Free Association, birth in Puerto Rico alone could no longer be grounds for U.S. citizenship.
Although there is no well established precedent for it, claims have been made that all babies born to U.S. citizens living in a newly independent Puerto Rico would retain easy access to U.S. citizenship. Assuming that is the case, wouldn’t their children then be U.S. citizens? And then each subsequent generation could also maintain U.S. citizenship — right?
Not necessarily.
Derivative U.S. Citizenship
United States laws enable children to acquire U.S. citizenship other than through birth in the United States as long as certain conditions are met. Babies born outside of the United States to a U.S. citizen parent or parents may derive U.S. citizenship at birth. Others, including adopted children, may also acquire citizenship after birth, but before the age of 18, through their U.S. citizen parents.
According to the U.S. Citizenship and Immigration Services policy manual, the law in effect at the time of birth determines whether someone born outside the United States to a U.S. citizen parent(s) is a U.S. citizen at birth. These laws generally require a combination of at least one parent being a U.S. citizen when the child was born and having lived in the United States for a period of time. Citizenship laws have changed extensively over time with two major changes coming into effect in 1978 and 2001.
Current law specifies that the child of a U.S. citizen can also be a U.S. citizen under these circumstances:
- At least one parent is a U.S. citizen either by birth or naturalization
- In the case of a child who was born out of wedlock, the mother must be the one who is or becomes a citizen, OR if the father is a U.S. citizen through naturalization or other means, then the child generally must have been legitimated by the father under either the law of the child’s or father’s residence or domicile and the legitimation must take place before the child reaches the age of 18.
- Child is under 18 years old
- Child must be unmarried
- Child is a lawful permanent resident or national
- Child is residing in the U.S. in the legal and physical custody of the citizen parent
- Adopted children (born after 2001) qualify so long as s/he was adopted before the age of 16 and has been in the legal custody of, and has resided with, the adopting parent(s) for at least two years. An adopted child who qualifies as an orphan under INA § 101(b)(1)(F) also will qualify for derivation.
A current U.S. citizen who delivers a baby while visiting a foreign country would be able to pass on derivative U.S. citizenship to her child automatically only if the mother is a U.S. citizen and was physically present in the United States for five years before the child was born. Two of those years must have been after she was 14 years old.
There are some variations on the details of this law if only the father is a U.S. citizen, based on whether or not the parents were married, but in most cases the baby can still receive a Consular Report of Birth Abroad and derive U.S. citizenship at birth.
If this child then settles in a foreign country and does not return to the U.S. for 5 years, two of which were after the age of 14, when this child grows up and has children, those offspring cannot derive U.S. citizenship under current law.
Can the law be changed? Sure. But in the current political climate, and with the possibility of 3 million U.S. citizens living in a newly foreign country, immigration law is more likely to get increasingly strict than lenient.
Derivative U.S. Citizenship for an Independent Puerto Rico?
Under current law, an independent Puerto Rico would be treated like any other foreign country.
Imagine a current U.S. citizen born in Puerto Rico and living in Florida. If she has a child in Florida, that child will be a U.S. citizen by virtue of being born in a state. If she has a child in the new Republic of Puerto Rico while visiting family and then brings the child back to Florida to live, that child would be covered under the list above — assuming the baby is registered at the U.S. Consulate in Puerto Rico at birth.
Now imagine a current U.S. citizen born in Puerto Rico and living in a new Republic of Puerto Rico. If she has a baby in Puerto Rico, the child might fulfill #1-4 on the list above, but will not be a lawful U.S. resident residing in the U.S. under the custody of a U.S. citizen parent. If the mother lived in the United States for five years before giving birth in Puerto Rico, she may still apply for a Consular Report of Birth Abroad. However, the child continuing to live in Puerto Rico will no longer count as residence in the United States.
The U.S. Citizenship and Immigration Services policy manual is explicit that anyone born outside the United States “is presumed to be an alien,” and has the burden of proof to establish “by a preponderance of the evidence” that they have met all requirements for citizenship.
Would the Puerto Rico Status Act Make a Difference?
The Puerto Rico Status Act (PRSA), a proposal once considered by Congress but never passed into law, posits that some elements of derivative U.S. citizenship would be possible for the next generation of Puerto Ricans under independence, perhaps through a Compact of Free Association (COFA) with the U.S. The PRSA ultimately died in the U.S. Senate, and the idea of safeguarding U.S. citizenship for people living in an independent Puerto Rico was never established as viable or secure, even under a U.S.-Puerto Rico COFA.
The PRSA nonetheless acknowledged that Congress is in full control of citizenship laws in the United States, and that U.S. citizenship, is “recognized, protected, and secured” only under statehood.
Under a hypothetical free association, birth in Puerto Rico would qualify for U.S. citizenship only if a provision is included in a U.S.-Puerto Rico COFA. That’s a big “if.” There is no precedent for it. None of the three current COFA nations have access to U.S. citizenship by birth. There’s not even a quick path for U.S. citizenship if COFA citizens move to the U.S.
When Congress Considered – and Rejected – a Path to U.S. Citizenship for Freely Associated States
U.S. government officials across a wide swath of U.S. departments and agencies in both Democrat and Republican Administrations have called citizenship in a foreign sovereign nation contrary to U.S. policy, and Constitutional scholars have stated that only statehood can guarantee U.S. citizenship.
History also tells us that there is little room for sentimentality in any scenario that transitions Puerto Rico towards independence/free association. When the Philippines became independent in 1946, Filipinos were unable to keep their status as U.S. nationals – even those who had moved to a state.
Adding insult to injury, Filipinos who fought valiantly for the U.S. in World War II and then became citizens of the Philippines not only lost their status as U.S. nationals, but they also did not receive the veterans’ benefits they had been promised.
Ultimately, derivative U.S. citizenship can be tricky. There are no guarantees under independence/free association.
