Rich Wales, Sep 13, 2006
(Philippine News is running a Q&A series on dual citizenship. The author, Mr. Rich Wales, is a Stanford University graduate with degrees in math and music. He was thinking of moving to Canada but wanted to keep his American citizenship. He is a software developer working at Stanford. He is not a lawyer, so the primer, comprehensive and well written as it is, and for which he has kindly granted PN permission to reprint, should be treated as a guide, NOT legal advice.)
Part 5 of a series
Is a child born outside the U.S. to American parents legally eligible to become President?
Most likely yes.
The U.S. Constitution (Article II, Section 1, Subsection 4) says: "No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."
The term "natural born citizen" is not used anywhere else in the Constitution, and it has never been the subject of any federal court ruling. Hence, its exact meaning could be subject to controversy.
While some have suggested that perhaps a "natural born citizen" must have been born on U.S. territory (i.e., in keeping with the definition of a citizen given in the 14th Amendment), other legal experts believe the term refers to anyone who has U.S. citizenship from the moment of his or her birth — i.e., someone who did not have to be "naturalized" because he/she was born "natural" (i.e., born a citizen).
The first Congress enacted a citizenship law which stated that "the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens". [Act of Mar. 26, 1790, ch. 3, 1 Stat. 104.] This strongly suggests that the phrase was understood by the framers of the Constitution to refer to citizenship by birth.
At least three Presidential candidates in recent memory were born outside the U.S. proper:
Barry Goldwater, the 1964 Republican candidate, was born in the Arizona Territory in 1909 (Arizona did not become the 48th state until 1912). Goldwater lost the 1964 election to Lyndon Johnson.
George Romney, a 1968 Republican hopeful, was born in Mexico in 1907 to American parents who had moved there to escape anti-Mormon persecution in the U.S.
John McCain, an early Republican hopeful in the current (2000) campaign, was born in the Panama Canal Zone in 1936 to American parents. McCain dropped out of the campaign in favor of the Republicans' eventual nominee, George W. Bush.
We will probably never really know whether an American citizen born outside the U.S. can become President (or Vice-President) until a lawsuit involving such a candidate finds its way into the courts. This could happen, of course, if a foreign-born candidate were elected and the electoral college's choice were challenged in court; or, more likely, if such a candidate's right to federal campaign subsidies (matching funds) were questioned.
I am engaged to a U.S. citizen. When we get married, will I automatically get dual citizenship?
No. Marriage to a U.S. citizen does not automatically confer U.S. citizenship under current U.S. law.
At one time, it was common practice that a woman who married a foreigner, and set up residence with her new husband in his country, automatically acquired his citizenship (and frequently lost her native citizenship too). However, this has not been the case in U.S. law for many years.
What marriage (or engagement) to a U.S. citizen does generally do is to allow the alien spouse or fiancé(e) an opportunity to apply for immigration to the U.S. as a permanent resident (what is commonly referred to as getting a "green card"). The alien spouse can then apply for U.S. citizenship after living in the U.S. for three years (note that most "green card" holders must wait five years before becoming eligible for citizenship).
Unfortunately, immigration via marriage is often trickier than it might seem. Totally sincere spouses or fiancé(e)s may find themselves subjected to skeptical inquiries by U.S. officials on the lookout for people seeking a fast, fraudulent way into the US through a "sham" marriage (as portrayed, albeit in jest, by the 1990 movie Green Card). Couples may find themselves separated for months while the non-citizen's application is being processed by the INS — since U.S. law prohibits most aliens seeking permanent residence in the US from entering the U.S. in any sort of non-permanent status while their immigration application is pending.
Once a non-citizen spouse is ready to apply for U.S. citizenship — normally after three years of lawful permanent residence (so-called "green card" status) — his or her situation is basically the same as anyone else seeking U.S. naturalization. Whether or not he/she will end up with "dual" citizenship depends on the other country's attitude toward naturalization in the U.S. The U.S. naturalization oath contains a mandatory renunciatory clause, but the new citizen's "old country" may or may not recognize it, and under current policies, the U.S. doesn't care or mind if a naturalized U.S. citizen's country of origin insists on hanging on.
I am a dual U.S./Canadian citizen by birth. I was once told that if I ever voted in either an American or a Canadian election, I would lose citizenship in the other country. Is this true?
No. Neither U.S. nor Canadian citizenship law says anything about losing citizenship as a result of voting in an election in another country.
Note that U.S. law used to mandate loss of U.S. citizenship for voting in a foreign election. However, this provision was struck down by the Supreme Court in Afroyim v. Rusk and was repealed by Congress in 1978.
Canada's current Citizenship Act (in force since 1977) says nothing at all about voting in foreign elections and loss of citizenship. If you are a citizen of some country other than Canada, of course, you will need to check the laws of that country in order to find out if you could endanger your citizenship in that country by voting in a U.S. election.
Incidentally, U.S. citizens living abroad (whether or not they happen to be dual citizens) should be aware that they may be legally entitled to vote in U.S. federal elections. Even if you have not had any residential ties to the U.S. for years and have no plans to return, you may still vote in federal elections based on your last place of residence before moving away from the U.S. In such cases, federal law prohibits your former state from declaring you a resident for state tax purposes simply because you have exercised this right to vote in a federal election. For more information on how to register and vote from outside the U.S., contact the nearest U.S. embassy or consulate, or visit the Web site of the Federal Voting Assistance Program at www.fvap.gov.
I lost my U.S. citizenship some years ago after I became a citizen of another country. I told the people at the U.S. consulate that I intended to remain a dual citizen, but they wouldn't listen. I think I got a raw deal. Is there any way I can get my U.S. citizenship back now?
Yes. The State Department info on dual citizenship cases says that the current guidelines for ascertaining intent to keep U.S. citizenship are applicable retroactively to past cases, and it explicitly says that "persons who previously lost US citizenship may wish to have their cases reconsidered in light of this policy."
To initiate such reconsideration, contact the nearest U.S. embassy or consulate, or write the State Department at the following address:
