Some Worry They CAN Be Proven To Be U.S. Citizens – Some Worry That CANNOT Be Proven To Be U.S. Citizens

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January 26, 2025

Introduction and purpose

Are you or have you ever been a U.S. citizen? It depends on the “facts and circumstances”

U.S. citizenship is unique. For many it’s the only citizenship worth renouncing (many U.S. citizens are forced to renounce U.S. citizenship). For others its the only citizenship worth having. For some U.S. citizenship is the only citizenship they have ever known. One way or the other, as pointed out by Amanda Frost (and others), U.S. citizenship has certainly been weaponized.

The Weaponization Of Citizenship: From “You Are NOT American” to “You ARE American”

My week …

This has been an interesting week. It began with President Trump’s EO creating barriers to the recognition of U.S. citizenship. It ended with a call from a panicked individual who had just been to a seminar where he was informed that his child (born outside the USA) was a U.S. citizen and therefore subject to U.S. taxation.

Interestingly both the Trump EO and the panicked American identify the same two questions.

Q. 1. What happens if your ENTITLEMENT to U.S. citizenship is based on the facts and circumstances of the life of your parent(s)?

Q. 2. What happens if the RECOGNITION of your U.S. citizenship is based on determinations of the facts and circumstances of the life of your parent(s)?

There is a difference between:

(1) Truth: whether one is a U.S. citizen (assuming that certain facts are established); and

(2) Proof: whether the facts that would make you a U.S. citizen can be proven.

Either scenario is the cause of potential anxiety.

Some people worry that they cannot prove they are a U.S. citizen.

Some people worry that they cannot prove they are NOT a U.S. citizen.

Although proof is different from truth, the truth of U.S. citizenship may NOT matter without the proof of U.S. citizenship!

Interestingly the Trump EO and the panicked American abroad trigger the same issues.

Part A – Some People Worry They CANNOT PROVE They Are U.S. Citizens

President Trump wasted no time in signing an Executive Order which directed Federal Government Agencies to NOT issue documents acknowledging the citizenship of certain people born in the United States.

The President’s EO includes:

“Among the categories of individuals born in the United States and not subject to the jurisdiction thereof, the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Sec. 2. Policy. (a) It is the policy of the United States that no department or agency of the United States government shall issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship, to persons: (1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

(b) Subsection (a) of this section shall apply only to persons who are born within the United States after 30 days from the date of this order.”

https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/

The President’s EO includes not issuing a passport (remember the law of the USA is that a U.S. citizen cannot leave the USA without a U.S. passport) or any other document which would acknowledge the person was a U.S. citizen.

Q. Does the Trump EO mean that the affected individuals are NOT U.S. citizens?

A. No of course not. It just means that they can’t prove they are U.S. citizens. If they can’t prove they are U.S. citizens, it is difficult or impossible to avail oneself of the benefits of U.S. citizenship.

Q. Is the government’s attempt to make proof of citizenship impossible, the functional equivalent of a constructive expatriation?

A. Without being able to prove they are U.S. citizens they will not be able to avail themselves of the benefits of U.S. citizenship. These individuals would be better off living living outside the United States.

As the U.S. Government well knows, in many circumstances the inability to prove one is a citizen, is functionally equivalent to NOT being a citizen.

Note that in order for these individuals to prove that they did NOT fall within the scope of the Trump EO they would, in order to prove their citizenship, need to prove information about the immigration and citizenship status of their parents!!

Part B – Some People Worry That They Can Be PROVEN TO BE U.S. Citizens

U.S. taxation, U.S. citizenship and U.S.citizenship taxation cause anxiety in those who are affected or who think think they may be be affected. Some legal and tax professionals make a good living from “fear mongering”, “hyperbole” and distorting the context of (otherwise) accurate information. The result is that people experience confusion, fear and worry about their futures and in some cases worry about their children’s futures.

From time to time I receive a call from a U.S. citizen who is a parent of a child born outside the United States and never considered (1) whether the child might be a U.S. citizen and/or (2) the tax implications of U.S citizensip. They are confused, panicked and wondering whether they should bring the child into the U.S. tax system and formally renounce U.S. citizenship (assuming the child is a U.S. citizen to begin with). Don’t panick! I have never heard of the U.S. forcibly imposing U.S. citizenship on somebody who was born outside the United States to a U.S. citizen parent(s).

Let’s begin by considering the law. Clearly a child born outside the United States to a U.S. citizen parent would NOT be a U.S. citizen under the 14th Amendment (not having been born or naturalized in the USA).

Therefore, whether the child is a U.S. citizen would be determined by statute. Let’s have a look. We begin with Title III of the Immigration And Nationality Act. Look at all the possibilities – INA 301 to 309. Assuming the person was born “in wedlock” and was not born in a U.S. territory we would look to INA 301 (reproduced in the Appendix to this post).

Hypothetical (one among many): Child X is born in Greenland to a married couple. To be clear Greenland (at the time of birth) was NOT part of the United States. Let’s assume that the mother is a U.S. citizen and the father was “FATCA and Citizenship Tax free” (neither a U.S. citizen nor a U.S. national).

Question: Is Child X a U.S. citizen? What facts would determine whether Child X a U.S. citizen?

Let’s look to the statute which (as it as of today’s date) includes:

§1401. Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years:

Notice that the child is NOT automatically a U.S. citizen. The Child WILL be a U.S. citizen if:

The mother met the requirements of U.S. physical presence for a period of five years (of which two were after the age of fourteen).

For practical purposes, a U.S. citizenship that cannot be proven (as the Trump EO clearly assumes) is the functional equivalent of NOT being a U.S. citizen.

Note that in order for a government agency to prove that Child X WAS a U.S. citizen it would need to prove information about the immigration and citizenship status of the parents!!

Conclusion:

Some people worry that they are NOT U.S. citizens.

Some people worry that they ARE U.S. citizens.

In either case, the practical question is often:

Can U.S. citizenship be proven?

Notice also that in BOTH the Trump EO and Child X born abroad, the determination of whether the child is a U.S. citizen is determined by an analysis and understanding of the citizenship and life circumstances of the child’s parents.

Renunciation – Some people want to renounce U.S. citizenship BUT must overcome the initial hurdle of proving that they are a U.S. citizen.

Filing U.S. taxes – In order to file U.S. taxes one would need a U.S. Social Security number. You would need to prove your U.S. citizenship to get one.

As you can see the Trump EO (clearly an attempt to make it difficult to prove U.S. citizenship) raises the same contextual issues experienced by children born outside the United States to U.S. citizen parent(s).

When it comes to citizenship the issues are “proof” and “truth”. For practical purposes, the “proof” determines the “truth”!

In conclusion:

John Richardson – Follow me on Twitter @ExpatriationLaw

Appendix – INA 301 or U.S.C. 1481

JR Commentary: This is the statute as of January 26, 2025. It has evolved over the years. What is true today might not have been true in the past.

§1401. Nationals and citizens of United States at birth

The following shall be nationals and citizens of the United States at birth:

(a) a person born in the United States, and subject to the jurisdiction thereof;

(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

(June 27, 1952, ch. 477, title III, ch. 1, §301, 66 Stat. 235 ; Pub. L. 89–770, Nov. 6, 1966, 80 Stat. 1322 ; Pub. L. 92–584, §§1, 3, Oct. 27, 1972, 86 Stat. 1289 ; Pub. L. 95–432, §§1, 3, Oct. 10, 1978, 92 Stat. 1046 ; Pub. L. 99–653, §12, Nov. 14, 1986, 100 Stat. 3657 ; Pub. L. 103–416, title I, §101(a), Oct. 25, 1994, 108 Stat. 4306 .)

Editorial Notes

Constitutionality

For information regarding the constitutionality of certain provisions of this section, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitution.congress.gov.

Amendments

1994-Subsec. (h). Pub. L. 103–416 added subsec. (h).

1986-Subsec. (g). Pub. L. 99–653 substituted “five years, at least two” for “ten years, at least five”.

1978-Subsec. (a). Pub. L. 95–432, §3, struck out “(a)” before “The following” and redesignated pars. (1) to (7) as (a) to (g), respectively.

Subsec. (b). Pub. L. 95–432, §1, struck out subsec. (b) which provided that any person who was a national or citizen of the United States under subsec. (a)(7) lose his nationality or citizenship unless he be continuously physically present in the United States for a period of not less than two years between the ages of 14 and 28 or that the alien parent be naturalized while the child was under 18 years of age and the child began permanent residence in the United States while under 18 years of age and that absence from the United States of less than 60 days not break the continuity of presence.

Subsec. (c). Pub. L. 95–432, §1, struck out subsec. (c) which provided that former subsec. (b) apply to persons born abroad subsequent to May 24, 1934, except that this not be construed to alter the citizenship of any person born abroad subsequent to May 24, 1934 who, prior to the effective date of this chapter, had taken up residence in the United States before attaining 16 years of age, and thereafter, whether before or after the effective date of this chapter, complied with the residence requirements of section 201(g) and (h) of the Nationality Act of 1940.

Subsec. (d). Pub. L. 95–432, §1, struck out subsec. (d) which provided that nothing in former subsec. (b) be construed to alter the citizenship of any person who came into the United States prior to Oct. 27, 1972, and who, whether before or after Oct. 27, 1972, immediately following such coming complied with the physical presence requirements for retention of citizenship specified in former subsec. (b), prior to amendment of former subsec. (b) by Pub. L. 92–584.

1972-Subsec. (b). Pub. L. 92–584, §1, substituted provisions that nationals and citizens of the United States under subsec. (a)(7), lose such status unless they are present continuously in the United States for two years between the ages of fourteen and twenty eight years, or the alien parent is naturalized while the child is under the age of eighteen years and the child begins to reside permanently in the United States while under the age of eighteen years, and that absence from the United States of less than sixty days will not break the continuity of presence, for provisions that such status would be lost unless the nationals and citizens come to the United States prior to attaining twenty three years and be present continuously in the United States for five years, and that such presence should be between the age of fourteen and twenty eight years.

Subsec. (d). Pub. L. 92–584, §3, added subsec. (d).

1966-Subsec. (a)(7). Pub. L. 89–770 authorized periods of employment with the United States Government or with an international organization by the citizen parent, or any periods during which the citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization, to be included in order to satisfy the physical presence requirement, and permitted the proviso to be applicable to persons born on or after December 24, 1952.

Statutory Notes and Related Subsidiaries
Effective Date of 1986 Amendment

Pub. L. 99–653, §23(d), as added by Pub. L. 100–525, §8(r), Oct. 24, 1988, 102 Stat. 2619 , provided that: “The amendment made by section 12 [amending this section] shall apply to persons born on or after November 14, 1986.”
Effective Date of 1978 Amendment

Pub. L. 95–432, §1, Oct. 10, 1978, 92 Stat. 1046 , provided that the amendment made by section 1 is effective Oct. 10, 1978.
Effective Date

Chapter effective 180 days after June 27, 1952, see section 407 of act June 27, 1952, set out as a note under section 1101 of this title.
Waiver of Retention Requirements

Pub. L. 103–416, title I, §101(b), Oct. 25, 1994, 108 Stat. 4306 , provided that: “Any provision of law (including section 301(b) of the Immigration and Nationality Act [8 U.S.C. 1401(b)] (as in effect before October 10, 1978), and the provisos of section 201(g) of the Nationality Act of 1940 [former 8 U.S.C. 601(g)]) that provided for a person’s loss of citizenship or nationality if the person failed to come to, or reside or be physically present in, the United States shall not apply in the case of a person claiming United States citizenship based on such person’s descent from an individual described in section 301(h) of the Immigration and Nationality Act (as added by subsection (a)).”
Retroactive Application of 1994 Amendment

Pub. L. 103–416, title I, §101(c), Oct. 25, 1994, 108 Stat. 4306 , provided that:

“(1) Except as provided in paragraph (2), the immigration and nationality laws of the United States shall be applied (to persons born before, on, or after the date of the enactment of this Act [Oct. 25, 1994]) as though the amendment made by subsection (a) [amending this section], and subsection (b) [enacting provisions set out above], had been in effect as of the date of their birth, except that the retroactive application of the amendment and that subsection shall not affect the validity of citizenship of anyone who has obtained citizenship under section 1993 of the Revised Statutes [former 8 U.S.C. 6] (as in effect before the enactment of the Act of May 24, 1934 (48 Stat. 797)).

“(2) The retroactive application of the amendment made by subsection (a), and subsection (b), shall not confer citizenship on, or affect the validity of any denaturalization, deportation, or exclusion action against, any person who is or was excludable from the United States under section 212(a)(3)(E) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(E)) (or predecessor provision) or who was excluded from, or who would not have been eligible for admission to, the United States under the Displaced Persons Act of 1948 [former 50 U.S.C. App. 1951 et seq.] or under section 14 of the Refugee Relief Act of 1953 [former 50 U.S.C. App. 1971l].”
Applicability of Transmission Requirements

Pub. L. 103–416, title I, §101(d), Oct. 25, 1994, 108 Stat. 4306 , as amended by Pub. L. 104–208, div. C, title VI, §671(b)(1), Sept. 30, 1996, 110 Stat. 3009–721 , provided that: “This section [amending this section and enacting provisions set out above], the amendments made by this section, and any retroactive application of such amendments shall not effect the application of any provision of law relating to residence or physical presence in the United States for purposes of transmitting United States citizenship to any person whose claim is based on the amendment made by subsection (a) [amending this section] or through whom such a claim is derived.”
Admission of Alaska as State

Alaska Statehood provisions as not conferring, terminating, or restoring United States nationality, see section 21 of Pub. L. 85–508, July 7, 1958, 72 Stat. 339 , set out as a note preceding former section 21 of Title 48, Territories and Insular Possessions.

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