Birthright citizenship in the United States works through two channels: anyone born on U.S. soil is a citizen at the moment of birth regardless of their parents’ immigration status, and children born abroad can inherit citizenship from a U.S. citizen parent who meets specific residence requirements. The soil rule comes from the Fourteenth Amendment, ratified in 1868, which declares that all persons born in the United States and subject to its jurisdiction are citizens.1Congress.gov. U.S. Constitution – Fourteenth Amendment The exceptions are narrow, and a 2025 executive order attempting to shrink the soil rule is currently blocked while the Supreme Court considers it.
Birth on U.S. Soil
Under 8 U.S.C. § 1401(a), a citizen at birth includes “a person born in the United States, and subject to the jurisdiction thereof.”2Office of the Law Revision Counsel. 8 U.S.C. 1401 – Nationals and Citizens of United States at Birth That covers all 50 states and the District of Columbia. Parents’ status is irrelevant. Permanent residents, temporary visa holders, and undocumented parents all produce citizen children when the birth happens on U.S. soil.
The Supreme Court settled this in 1898 in United States v. Wong Kim Ark, holding that a child born in San Francisco to Chinese nationals living in the country was a citizen by virtue of the Fourteenth Amendment.3Justia U.S. Supreme Court Center. United States v. Wong Kim Ark That case has controlled the meaning of the Citizenship Clause for over a century.
Ships and Waters
A birth on a ship in a U.S. port, harbor, or bay counts as a birth in the United States. The State Department treats all internal waters the same as dry land for citizenship purposes.4U.S. Department of State Foreign Affairs Manual. 8 FAM 301.1 Acquisition by Birth in the United States Births in the territorial sea beyond internal waters but within 12 nautical miles are handled case by case.
A common misunderstanding: a U.S.-flagged ship on the open ocean is not U.S. territory for citizenship. A child born there needs to qualify through a citizen parent instead.4U.S. Department of State Foreign Affairs Manual. 8 FAM 301.1 Acquisition by Birth in the United States
Birth Abroad to a U.S. Citizen Parent
Citizenship can also pass by blood when a child is born outside the country. The specific requirements depend on how many parents are citizens and whether they are married.
Both Parents Are U.S. Citizens
If both parents are U.S. citizens and married to each other, the child is a citizen at birth as long as at least one parent lived in the United States or an outlying possession at some point before the birth.5U.S. Citizenship and Immigration Services. USCIS Policy Manual – U.S. Citizens at Birth There is no minimum length. Any prior residence is enough.
One Citizen Parent, Married
When only one married parent is a U.S. citizen, that parent must have been physically present in the United States for at least five years before the child’s birth, with at least two of those years occurring after age 14. This comes from 8 U.S.C. § 1401(g).2Office of the Law Revision Counsel. 8 U.S.C. 1401 – Nationals and Citizens of United States at Birth The five years don’t need to be consecutive. Any combination of time in the country counts toward the total.
This is where families run into trouble. A citizen parent who left the country as a young teenager and never returned may not meet the two-years-after-14 test. If the math doesn’t work, the child is not a citizen at birth and has to go through the regular immigration process.
Unmarried Citizen Mother
If the parents are not married and the mother is the U.S. citizen, she can transmit citizenship if she was physically present in the United States for one continuous year at any point before the birth. That one-year rule sits in 8 U.S.C. § 1409 and is far easier to satisfy than the five-year test that applies elsewhere.6Office of the Law Revision Counsel. 8 U.S.C. 1409 – Children Born Out of Wedlock
Unmarried Citizen Father
When the citizen parent is an unmarried father, the requirements stack up. He must meet the same five-year physical presence test (with two years after age 14). He must also establish a blood relationship with the child by clear and convincing evidence, agree in writing to financially support the child until age 18, and have paternity acknowledged or established before the child turns 18.6Office of the Law Revision Counsel. 8 U.S.C. 1409 – Children Born Out of Wedlock Paternity can be acknowledged through a written oath, legitimation under local law, or a court order.7U.S. Citizenship and Immigration Services. U.S. Citizenship at Birth for Children of U.S. Citizen(s) Born Outside the United States
Birth in U.S. Territories
Federal statutes extend citizenship at birth to most inhabited U.S. territories:
- Puerto Rico, under 8 U.S.C. § 1402.8Office of the Law Revision Counsel. 8 U.S.C. 1402 – Persons Born in Puerto Rico on or After April 11, 1899
- The U.S. Virgin Islands, under 8 U.S.C. § 1406.9Office of the Law Revision Counsel. 8 U.S.C. 1406 – Persons Born in the Virgin Islands
- Guam, under 8 U.S.C. § 1407.10Office of the Law Revision Counsel. 8 U.S.C. 1407 – Persons Born in Guam
- The Commonwealth of the Northern Mariana Islands, for those born on or after November 4, 1986, when the CNMI entered political union with the United States.11U.S. Department of State Foreign Affairs Manual. 8 FAM 302.2 – Acquisition by Birth in the Commonwealth of the Northern Mariana Islands
American Samoa and Swains Island are the exception. People born there are non-citizen nationals of the United States rather than citizens.12U.S. Department of State. 8 FAM 308.2 Acquisition by Birth in American Samoa and Swains Island A non-citizen national owes allegiance to the United States and carries a U.S. passport, but cannot vote in federal elections and is barred from government positions that require citizenship.13U.S. Citizenship and Immigration Services. USCIS Policy Manual – Becoming a U.S. Citizen Non-citizen nationals can apply for naturalization but must meet the standard residency and other requirements.
Who Is Excluded
The Fourteenth Amendment guarantee is nearly universal, but Wong Kim Ark identified narrow exceptions rooted in the phrase “subject to the jurisdiction thereof.”3Justia U.S. Supreme Court Center. United States v. Wong Kim Ark
Children of Accredited Diplomats
Children born in the United States to accredited foreign diplomats with full diplomatic immunity do not receive citizenship at birth.14U.S. Citizenship and Immigration Services. USCIS Policy Manual – Children Born in the United States to Accredited Diplomats The exception is narrower than most people think. It applies only to diplomats listed on the State Department’s Diplomatic List (the “Blue List”), which covers those with full immunity under international law. If neither parent appears on the Blue List at the time of birth, the child is subject to U.S. jurisdiction and is a citizen. Consular officers do not have the same level of immunity as ambassadors, so their U.S.-born children generally are citizens.
Enemy Forces During Hostile Occupation
The Wong Kim Ark opinion also carved out children born to enemy forces during a hostile occupation of American territory. This has no modern application. No foreign military has occupied U.S. soil since the doctrine was articulated, but it remains part of the legal framework.
The 2025 Executive Order and Pending Supreme Court Case
In January 2025, Executive Order 14160 attempted to narrow birthright citizenship for the first time since the Fourteenth Amendment was ratified. The order targeted children born on U.S. soil when the mother was unlawfully present or on a temporary visa and the father was not a citizen or permanent resident. Federal agencies would have refused to recognize those children as citizens, declining to issue passports or Social Security numbers.
The order never took effect. Multiple federal courts found the plaintiffs likely to succeed on the merits and issued nationwide injunctions. The Supreme Court granted full review in December 2025 in Trump v. Barbara, framing the question as whether the executive order complies with the Citizenship Clause and 8 U.S.C. § 1401(a). Oral arguments took place on April 1, 2026, and a decision is expected by late summer 2026.15Congress.gov. Birthright Citizenship: Litigation Status Update
Until the Court rules, every child born on U.S. soil continues to receive citizenship under existing law. Federal agencies have prepared guidance to implement the order if it is eventually permitted to go into force, but none of that guidance is currently operative.
Proving You Are a Citizen
Having a right to citizenship and being able to prove it are two different problems. The documents you need depend on where you were born.
If You Were Born in the United States
A certified long-form birth certificate from the state or local vital records office where you were born is the standard proof. It should show your place of birth, date, and a raised seal or other security feature from the issuing authority. Fees for certified copies vary by jurisdiction and generally run between $10 and $30. A U.S. passport is equally valid proof and is often more practical to carry.
If You Were Born Abroad to a Citizen Parent
The primary document is a Consular Report of Birth Abroad (CRBA), also known by its form number FS-240. A parent applies at the nearest U.S. embassy or consulate in the country where the birth occurred.16U.S. Department of State. Birth of U.S. Citizens and Non-Citizen Nationals Abroad The application fee is $100.17U.S. Embassy in the Republic of the Congo. Births and Eligibility for a Consular Report of Birth The application must be filed before the child turns 18.
The CRBA application requires evidence that the citizen parent met the physical presence rules described above. School transcripts, employment records, tax returns, and military service records all help. Gathering these before the consulate visit saves significant time, especially when documenting years of U.S. residence that may stretch back decades.
If You Never Got a CRBA
If you acquired citizenship at birth but your parents never obtained a CRBA, you can file Form N-600 with USCIS to get a Certificate of Citizenship.18U.S. Citizenship and Immigration Services. N-600, Application for Certificate of Citizenship This is not naturalization. You are asking the government to formally recognize a citizenship you already have. Check the current USCIS fee schedule before filing.