Immigration Law: Birthright Citizenship Explained

The Fourteenth Amendment to the US Constitution was a product of Reconstruction following the US Civil War. It was adopted on July 9th, 1868 and originally served the purpose of addressing citizenship matters and other issues regarding former slaves who were freed as a result of the war.

The Citizenship Clause of the Fourteenth Amendment in particular has had far-reaching implications for our understanding of US citizenship. This clause overturned the historic Dred Scott v. Sanford Supreme Court decision from 1857, which stated that slaves born in the US from African slaves could not be citizens, and served to officially define citizenship rights as “all persons born or naturalized in the United States.” Thus, the principle of “Birthright Citizenship,” originally established in the Civil Rights Act of 1866, would be permanently protected within a constitutional amendment that could not be easily repealed—since the idea was incredibly contentious at the time, and for some, still is today.

Birthright citizenship in the United states means that a child born under certain circumstances of parentage or location are permanently afforded all the rights and privileges of US citizenship, such as voting and traveling freely to the country. There are two forms of birthright citizenship accepted in the US: jus soli and jus sanguinis.

Jus soli

This form of birthright citizenship, which means “right of the soil,” refers to children who are granted citizenship in the US because they were physically born on US soil. Even if their parents are not US citizens, if they are born in the US they are automatically US citizens. This form of birthright citizenship also extends to Native American tribes, children of unknown parentage under the age of 5 found in the US (unless it is proven they were born outside the US prior to the child turning 21), and children born in incorporated US territories (Palmyra Atoll) as well as the territories of Puerto Rico, Guam, the US Virgin Islands, and the Northern Mariana Islands. Children born in the outlying possessions of the United States—American Samoa and Swains Island—are considered US nationals but not citizens.

Jus Sanguinis

This form of birthright citizenship, which means “right of the blood,” refers to children born of one or more parents who are US citizens, no matter where they are born. These conditions only apply to legally married parents. If both parents are US citizens, the child will also be a US citizen if either parent has ever resided in the US before the child’s birth. If one of the two parents is a US citizen and the other is a US national, the child will be a US citizen if the US citizen parent has at any point lived in the US for a continuous period of at least a year before the child was born. Finally, if one parent is a US citizen and the other is not, the citizen parent must have been physically present in the US for a total of five years, two of which must have been after his or her fourteenth birthday. There is a more intricate set of rules regarding children born out of wedlock to a US citizen parent.

The principle of birthright citizenship has numerous implications regarding immigration, so please contact Saleh & Associates to learn more.


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