United States nationality law details the conditions in which a person holds United States nationality. In the United States, nationality is typically obtained through provisions in the U.S. Constitution, various laws, and international agreements. Citizenship is established as a right under the Constitution, not as a privilege, for those born in the United States under its jurisdiction and those who have been "naturalized".[2] While the words citizen and national are sometimes used interchangeably, national is a broader legal term, such that a person can be a national but not a citizen, while citizen is reserved to nationals who have the status of citizenship.
Individuals born in any of the 50 U.S. states, the District of Columbia or almost any inhabited territory are United States citizens (and nationals) by birthright. The sole exception is American Samoa, where individuals are typically non-citizen U.S. nationals at birth. Foreign nationals living in any state or qualified territory may naturalize after going through the legal process of qualifying as permanent residents and meeting a residence requirement (normally five years).
Nationality defines the legal relationship between a person and a state or nation, specifying who is a member or subject of a particular nation.[3][4][5] The rights and obligations of citizenship are defined by this relationship, as well as the protections to which nationals are entitled.[6][7][8] Though nationality and citizenship are distinct and the United States recognizes the distinction between those who are entitled or not entitled to rights, its statutes typically use the words "citizen" and "citizenship" instead of "national" and "nationality".[9] The Constitution of the United States did not define either nationality or citizenship, but in Article 1, section 8, clause 4 gave Congress the authority to establish a naturalization law.[10] Before the American Civil War and adoption of the Fourteenth Amendment, there was no other language in the Constitution dealing with nationality.[11]
The first statute to define nationality and naturalization in the United States was the Naturalization Act of 1790.[12] It limited those who were eligible to be nationals as free, white persons.[13] Following the practices of English common law, the legal system of the United States absorbed coverture, or the assumption that a woman's loyalty and obligations to her spouse were more important than her loyalty and obligation to the nation. While the Nationality Act did not forbid a woman to have her own nationality,[12] judicial rulings and custom on domestic matters established that infants, slaves, and women were unable to participate in public life, as a result of the belief that they lacked critical judgment and had no right to exercise free will or control property.[14][15] Native Americans were considered to be subjects of foreign governments and per decisions like Dred Scott v. Sandford (60 U.S. (19 How.) 393, 1857) were only eligible to become naturalized if they assimilated white culture.[16][17] From 1802, only fathers were able to pass on their nationality to their children.[18] The Naturalization Act of 1804 confirmed that a woman's nationality was dependent upon her marital status and the Naturalization Act of 1855 tied a wife's nationality, and that of her children, to her husband's.[19][20][21] A wife who married a foreign husband in this period was assumed to have suspended her nationality in favor of his.[22] She was able to repatriate upon termination of the marriage and resumption of residence in the United States.[23] While the 1855 Act specified that foreign wives gained U.S. nationality, the law created confusion as to whether it required American women who married aliens to take the nationality of the spouse.[24] For example, Nellie Grant, daughter of President Ulysses S. Grant, reacquired her U.S. nationality in 1898 by an Act of Congress, after a divorce from a British husband.[25]
In the aftermath of the Civil War, Congress enacted the Civil Rights Act of 1866 and later that year passed the Fourteenth Amendment to the United States Constitution to grant citizenship status to former slaves.[13] The language of the Amendment was race-neutral and granted nationality to anyone born in the United States who had no allegiance to a foreign power, but specifically excluded all Native Americans who adhered to tribal governance.[26][27][Notes 1] It did not extend nationality to Native Americans or to women of any race.[30] In Minor v. Happersett (21 Wall 162, 1875), the Supreme Court confirmed that equal protection did not apply to women[31][32] and Elk v. Wilkins (112 U.S. 94, 1884) confirmed that Native Americans did not have birthright nationality in United States territory.[33]
Under the Insular Cases of 1901, the Supreme Court ruled that unincorporated territories and insular possessions of the United States, which were not on a path toward statehood, had limited applicability of the U.S. Constitution. At the time, these included Guam, the Philippines, and Puerto Rico, acquired in 1898 at the end of the Spanish–American War. According to the decision, those born in insular possessions or unincorporated territories were not eligible for citizenship, though they were considered nationals and could hold a U.S. passport and gain diplomatic protection from the United States.[34] Passage of the Expatriation Act of 1907 eliminated the uncertainty created in 1855, definitively stating that marriage solely determined all women's nationality.[35][36] The law immediately revoked the nationality of married women, regardless of whether they were born in the United States or naturalized, if they were married to a non-citizen.[36][37] It was retroactive and did not require a wife's consent, leaving many women unaware that they had lost their nationality.[38][39]
The federal Immigration Acts of 1921 and 1924 were passed by Congress to address the concern that white authority was declining.[40] The 1921 Act, known as the Emergency Quota Act, restricted immigration from various countries. The limits applied to foreign husbands and children of U.S.-born women, but provided an exemption for foreign wives and children of birthright male nationals.[41] In 1922, the Cable Act was passed, declaring that an American woman could not be denied the right to naturalize because she was married.[42] It established procedures for women, who had previously lost their citizenship because of marriage, to repatriate as naturalized (not birthright) citizens.[19][43][44] A wife's nationality depended on residence and her husband's eligibility to naturalize;[45][46] if she lived abroad, her nationality on re-entry to U.S. territory was therefore subject to the restrictions of the Quota Act.[47] However, because the Cable Act was worded to specifically state that "women citizens" who married ineligible foreigners lost their nationality, it did not apply to American Samoan women, as they were non-citizen nationals.[48]
Under the terms of the 1924 act, also known as the Asian Exclusion Act, Asians were not allowed to enter the country and were excluded from naturalization.[49] It stated that an American-born woman whose nationality was lost because of marriage, regardless of whether that marriage had terminated, was ineligible for naturalization and was considered to have been "born in the country of which [they were] a citizen or subject".[50] The Supreme Court ruling of 1923, in United States v. Bhagat Singh Thind, retroactively removed the nationality of Asian men, automatically revoking their wives' nationality.[51] If a U.S. woman married to a man of Asian descent left the country, she could not be readmitted to the United States.[50] Husbands could petition for an exception allowing their foreign-born wives to lawfully immigrate, but wives were unable to petition for their husbands.[52] Immediately after passage of the 1924 Act, the Department of Labor Secretary, James Davis, recommended extending its provisions to immigrants from Mexico and other countries in the Americas. Every year from 1926 to 1930, Congress considered bills evaluating imposing quotas for immigration from the other nations in the western hemisphere.[53] In June 1924, the Indian Citizenship Act granted Native Americans, unilaterally, nationality in the United States.[54]
In 1933, the United States delegation to the Pan-American Union's Montevideo conference, Alexander W. Weddell and Joshua Butler Wright signed the Inter-American Convention on the Nationality of Women, which became effective in 1934, legally reserving limitations for domestic legislative review.[55] The Equal Nationality Act of 1934 was the first statute that allowed derivative nationality for children born abroad to pass from their mother. Their nationality was dependent on whether the mother had resided in the United States before the child was born.[37][56] As the law was not retroactive, children born before 1934 were typically prevented from deriving citizenship from their mother.[37] The statute also provided preferential naturalization for any foreign spouse married to a U.S. national. It stated that eligible foreigners, who met all other requirements of naturalization, could naturalize under reduced requirements forgoing a declaration of intent and needing only three years of continuous residency within the United States, Alaska, Hawaii, or Puerto Rico.[57]
Amendments to the Cable Act and nationality laws continued until 1940, when married women were granted their own nationality without restriction.[58] That year, Congress amended the Nationality Act, distinguishing for the first time different rules for derivative nationality for legitimate and illegitimate children.[59] Under the provisions, children born out of wedlock passed from mother to child automatically, but required legitimization of paternity prior to a child reaching the age of majority for derivative nationality from the father.[56] The 1940 Act also allowed all women who had previously lost their citizenship because of marriage to repatriate without regard to their marital status, by swearing the oath of allegiance, as opposed to the previous policy of repatriation by naturalization.[60] Racial exclusions for derivative naturalization of husbands of U.S.-citizen wives remained in place until passage of the McCarran-Walter Act in 1952. Though it ended utilizing race as a criterion for admission to the country of nationalization, continued use of quotas to restrict immigration from Asian countries did not end racial exclusion.[61][62] Until immigration laws were reformed by the Immigration and Nationality Act of 1965, the restrictive quota system remained in place.[61]
Until 1972, the Nationality Laws of the United States required that children born abroad to U.S. nationals complete a five-year residency by establishing a continuous domicile in the territory prior to their twenty-third birthday. Failure to establish a residence nullified U.S. nationality and citizenship. In 1982, Congress enacted provisions for children born between 1950 and 1982 to facilitate immigration for children of U.S. national fathers. Intended to assist children born in areas where the U.S. had been militarily active, it applied to children born in Kampuchea, Korea, Laos, Thailand and Vietnam.[63] The special provisions did not give children nationality, but loosened the requirements for legitimization and financial support for children born abroad, removed scrutiny of the father's marital status, requiring only that the Attorney General establish that a presumed father was a citizen and that a sponsor agreed to take legal custody and support a child under the age of eighteen.[64] In 1987, the Amerasian Homecoming Act facilitated resettlement of immigrant Vietnamese mothers and their children born between 1962 and 1972 to U.S. military personnel.[65]
In 1989, a ruling in the case of Elias v. United States Department of State (721 F. Supp. 243, N.C. Cal 1989) confirmed that a child born abroad prior to 1934 to a U.S.-born woman could obtain derivative nationality. As the case was not a class-action lawsuit, it did not impact others in similar situations;[66] however, the 1993 ruling in Wauchope v. United States Department of State (985 F.2d 1407, 9th Cir. 1993) by the 9th Circuit Court of Appeals declared section 1993, which denied a woman's ability to transmit nationality to her children born before 1934, unconstitutional.[59] In the case Miller v. Albright (523 U.S. 420 1998), the court upheld discriminatory regulations set out in Title 8 U.S.C. § 1409 in the treatment of women and men passing their nationality to illegitimate children.[67] Justice John Paul Stevens' opinion in the case was that men do not establish a legal tie to a child except by choice; whereas, a woman's legal tie is established by biology.[68] In essence, a woman's tie with her child is legal when birth occurs and cannot be severed without legally terminating her parental rights, but a man can choose to walk away or establish a tie.[69] The ruling meant that mothers were able to pass on their nationality at the birth of an illegitimate child born abroad, if the mother had lived for a continuous period of one year prior to the child's birth in the United States or a U.S. territory.[70] For an unmarried man to pass nationality to an illegitimate child born abroad, before the child's eighteenth birthday, a blood relationship must be proved in court, the child must be recognized and legitimized, and the father's nationality at the time of birth must be confirmed.[71] On the basis of Clark v. Jeter (486 U.S. 456, 1988), no similar requirement applies for a married man.[72] However, for both married men and unmarried men, the statute "required the U.S.-born parent to have ten years' physical presence in the United States prior to the child's birth, 'at least five of which were after attaining' age 14".[73] In 2001, the Supreme Court again upheld the unequal regulations in the case of Nguyen v. INS (533 U.S. 53 2001) confirming that in the case of nationality, the inequality is present, which serves governmental objectives, to establish both a biological tie and a customary relationship between the child and parent.[70]
The Territorial Clause of the Constitution gave Congress authority to regulate on behalf of United States territories and possessions.[74] Using that power, Congress made distinctions for those territories which were to be incorporated eventually as states, and those that were not on a path of statehood.[75] Because of this authority, Congress has determined when inhabitants can become nationals and what their status is at any given time.[76] Prior to 1898, all persons born in U.S. possessions were treated as having been born in the United States, and upon acquisition, provisions were made for collective naturalization. After that date, possessions have been selectively judged to foreign localities and not subject to the Citizenship Clause of the Fourteenth Amendment.[77] Because of that determination, all persons in the U.S. outlying possessions were considered U.S. nationals, non-citizens, until Congress chose to convey full rights of citizenship. This included inhabitants of American Samoa, Guam, the Philippines, Puerto Rico, and the Virgin Islands.[78] Non-citizen nationals do not have full protection of their rights, though they may reside in the United States and gain entry without a visa.[79] Likewise, territorial citizens do not have the ability for full participation in national politics.[80]
In a series of Acts, the United States conveyed nationality upon outlying territories not destined for statehood.[81] Inhabitants became neither aliens, eligible for naturalization, nor citizens with full rights.[82] In 1900, legislation defined inhabitants in Puerto Rico as both citizens of Puerto Rico and U.S. nationals.[79] In 1902, similar legislation to that passed for Puerto Rico came in to force concerning the Philippines.[79] The United States established special rules for people working in the Panama Canal Zone in 1903, under the terms of the Panamanian-U.S. Canal Convention. Under its provisions, the 8 U.S.C. § 1403 was modified to include language that persons born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a parent who was, or formerly was, a United States national derived U.S. birthright citizenship.[83] In 1906, Congress passed legislation to allow persons born in unincorporated territories to be naturalized, under special prov