3/18/2011 1 navigating the us citizenship art maze - American ...

3/18/2011 

NAVIGATING THE U.S. 

CITIZENSHIP ART MAZE 

U.S. Citizenship – Land or Blood 

American Association of Tissue Banks 

15 th Annual Spring Meeting 

March 28, 2011 

Austin, Texas 

By Kathleen Campbell Walker 

Cox Smith Matthews Incorporated 

kwalker@coxsmith.com 

www.coxsmith.com 

• Jus Soli – 14 th Amendment, §301(a) Immigration 

and Nationality Act, as amended (“INA”) 

• “All persons born or naturalized in the United States, 

and subject to the jurisdiction thereof, are citizens of 

the United States and of the State wherein they 

reside.” 

• [subject to the jurisdiction – persons born in the U.S. 

to foreign born diplomats 8 CFR §101.3(a)(1)] 

Birth Abroad – Jus Sanguinis (Law of the 

Bloodline) 

Child’s Claim through linkage to parents by: 

• Blood 

• Adoption 

• Surrogacy 

Statute in effect at time of birth critical 

Birth Abroad - Acquisition of Citizenship at 

Time of Birth 

Consular Report of Birth Abroad (“CRBA”) 20 CFR 

§ 50.7 

Birth Abroad to U.S. Citizen (“USC”) Parents 

• One parent has prior residence in U.S. INA §301(c) 

Birth Abroad to a USC parent and foreign national 

• USC resided in US or outlying possessions for 5 

years before child’s birth (2 of 5 after age 14) 

(often DNA evidence required) 

Surrogacy and the U.S. State Department 

(“DOS”) 

Determination of Citizenship governed by U.S. law 

INA §§301 and 309 

• Even if local law recognizes surrogacy agreement 

and finds U.S. parents are legal parents of child 

conceived through ART 

• DOS does not pre-adjudicate citizenship 

determinations 

• Best evidence with a foreign surrogate is DNA 

testing 

Surrogacy and DOS 

• If child not biologically related to USC parent – child 

will not acquire USC at birth 

• In some countries – child will not acquire citizenship 

of birth country because surrogate mother is not 

parent (i.e. not possible to obtain passport) 

1


Importance of CRBA 

Typical ART Evidence for CRBA 

• CRBA certifies that child born abroad is USC 

• CRBA does not determine legal parents 

• Only names on CRBA are generally the USC parent 

with the biological connection to the child 

• Medical and Documentary Evidence of child’s 

Conception and Birth – 7 FAM 1446.2-2 

• Evidence of Parent’s Identity, Citizenship, and 

Physical Presence in US, as required 

• Possible DNA test of Child (note that passports for 

minors under 16 normally require the approval of 

both legal parents of the child 22 CFR §51.28) 

Out of Wedlock Rules 

• If child biologically related to USC father, but not his 

wife, case treated as out of wedlock to a USC father 

under INA §309(a) 

• Citizenship of woman carrying and delivering 

(gestational carrier) child not material to USC 

citizenship 7 FAM 1131.4-2 

• If local birth certificate lists gestational carrier, DOS 

to determine identity of genetic parents 7 FAM 

1446.2-2 

• Adoption does not transmit citizenship 7 FAM 

1131.3, 1131.4-1(a) 

Child is Offspring of Biological/Genetic 

Relationship 

• INA §309 applies to same-sex couples 7 FAM 

1446.2-2 at c(4)(d) 

• Legal marital relationship of egg and sperm donors 

governs 

• Married Sperm and Egg Donors – INA §301 

generally 

• Unmarried Sperm and Egg Donors - INA §309 

generally 

Fact Pattern Query 

USC wife gives birth to child abroad after non-USC 

donor’s egg fertilized with foreign national spouse’s 

sperm and then implanted in her. Only foreign 

national spouse is genetically related to child. 

7 FAM 1446.2-2 at c(4)(b) 

Anonymous donors assumed that not a USC. 

Married USC Egg and USC Sperm Donor – 

INA §301(c) 

• Egg from USC wife and fertilized in vitro by USC 

spouse’s sperm 

• Adjudicated as birth in wedlock 

• Citizenship of gestational carrier not relevant 

• One parent must have been physically present in US 

or outlying possessions before birth of child 

• 7 FAM 1131.4-2(b) 

Preponderance of evidence needed to show 

relationship. 

2


Egg from USC wife and fertilized in vitro by 

USC spouse’s sperm 



• One parent must have been physically present in US 

or outlying possessions before birth of child 

7 FAM 1131.4-2(b) 

Egg from USC wife and fertilized in vitro by 

foreign national (“FN”) spouse’s sperm 



• US citizenship transmitted through mother physically 

present in US or outlying possessions for not less 

than 5 years before birth of child (2 of 5 years after 

age 14) 7 FAM 1131.4-2(b) 

• Preponderance of evidence needed to show 

relationship. 

Married FN Egg and USC Sperm Donor – 

INA §301(g) 

• Egg from FN wife and fertilized in vitro by USC 

spouse’s sperm 



• US citizenship transmitted through father physically 

present in US or outlying possessions for not less 

than 5 years before birth of child (2 of 5 years after 

age 14) 7 FAM 1131.4-2(b) 

Not Married USC Egg and USC or FN 

Sperm Donor – INA §309(c) 

• Egg from USC mother and fertilized in vitro by USC or FN 

donor sperm 

• Adjudicated as birth out of wedlock 

• Citizenship of gestational carrier not relevant. Not relevant if 

USC mother married. Question is marriage to sperm donor. 

• USC mother must have been physically present in US 

or outlying possessions one continuous year before birth of 

child 7 FAM 1131.4-2(a) 

• If mother does not meet requirements, a USC sperm donor 

could transmit US citizenship under INA §309(a) 

Transmission of US Citizenship through USC 

Sperm Donor under INA §309(a) 

• Father has USC status at time of child’s birth 

• Agrees in writing to provide financial support to child 

until age 18 

• Father legitimates child, acknowledges paternity 

under oath, or has paternity established by 

competent court 

• Also, under INA §301(g), prior to child’s birth, USC 

sperm donor must have been physically present in 

US or outlying possessions at least 5 years (2 of 5 

years after age 14) 

Form DS-5507 Affidavit of Parentage, Physical 

Presence, and Support under INA §309(a) 

The statement may be in any form, however, as long as it 

complies with the following: 

(i) It must include an agreement to provide financial support; 

(ii) It must specify that such support will continue until the child's 

18th birthday; 

(iii) It must be in writing; 

(iv) It must be signed by the father under oath or affirmation 

before a consular officer or before any other U.S. or foreign 

official authorized to register births or administer oaths; and 

(v) It must be dated before the child's 18th birthday. It may be 

dated any time prior to that date, including prior to November 

14, 1986. 

3


Legitimation occur under the laws of the residence 

or domicile of the child under INA §309(a) 

Legitimation is best used to establish relationship 

only in cases where the legitimating act has already 

taken place and evidence is readily available. Do not 

inconvenience applicants by requiring them to submit 

extensive evidence of legitimation or expend 

resources to research or interpret foreign legitimation 

laws. Encourage the use of the simpler alternative of 

acknowledgement of paternity discussed in 7 FAM 

1133.4-2 b(4). 

Evidence of Parent's Residence/Physical 

Presence in US 

• Proof of registration in U.S. public or private schools, 

court records, military records, U.S. employment and 

income records, medical records, or other similar 

documents. 

• 7 FAM 1133.3 provides specific guidance about 

calculating residence and physical presence, 

including periods of absence 

Calculating Residence and Physical 

Presence 

• DOS interprets “physical presence” as actual bodily 

presence. 

• Any time spent in the US or its outlying possessions, 

even without maintaining a U.S. residence, may be 

counted toward the required physical presence. 7 

FAM 1133.3-3 

Examples of Counting Physical Presence - 

7 FAM 1133.3-4 

If it is not clear that the parent has more than enough physical 

presence in the US, it is important to obtain the exact dates of 

the parent's entries and departures. Expired passports showing 

entries into or departures from the United States and other 

countries, school and employment records, tax withholding 

statements, and other such documents may be helpful in 

establishing periods of U.S. physical presence. In some cases, 

it is important to know the number of hours a parent spent in the 

United States on a particular day. For example, a U.S.-citizen 

resident of Mexico or Canada who commuted to the United 

States each day to work would be credited not with a whole day 

in the United States but only with the number of hours actually 

spent in the United States. 

Child Citizenship Act of 2000 (“CCA”) – 

Pub. L. No. 106-395, INA §320 

• Acquisition of Citizenship at Birth 

• Derivation of Citizenship through naturalization of a 

USC parent, legitimation by a USC parent, 

surrogacy, or adoption 

• Effective February 27, 2001 

CCA – How it Applies 

• Applies to children who were under the age of 18 on 

February 27, 2001; that is, 

children born on or after February 28, 1983. 

• Extends US citizenship automatically to certain 

foreign-born children of U.S. citizens. It extended 

citizenship to three categories of children: 

(a) Children of naturalized citizens; 

(b) Children adopted abroad by U.S. citizens; and 

(c) Children born abroad to a U.S. citizen and who 

do not otherwise acquire U.S. citizenship at birth 

under INA §301 as made applicable by INA §309. 

4


CCA – Conditions - 7 FAM 1158.2 

CCA - Conditions Detail - 7 FAM 1158.2 

Child born outside the US (adopted or biological), as 

defined in INA §101(b) (1), (who did not otherwise 

acquire U.S. citizenship at birth under INA 301 as 

made applicable by INA 309), automatically becomes 

a citizen of the United States when all of the 

following conditions have been fulfilled, while the 

child is under the age of 18. 

The order in which the conditions are fulfilled has no 

significance: 

(1) At least one parent of the child is a citizen of the United 

States, whether by birth or naturalization; 

(2) The child is under the age of 18; 

(3) The child is residing in the US in the legal and physical 

custody of the citizen parent pursuant to a lawful admission for 

permanent residence (Lawful Permanent Resident Alien (LPR)); 

(4) INA 320 applies to a child adopted by a United States citizen 

if the child satisfied the requirements applicable to adopted 

children under INA 101(b) (1); (5) It also applies to children born 

to U.S. citizens who cannot otherwise transmit citizenship; and 

CCA - Conditions Detail 2 - 7 FAM 1158.2 

(5) It also applies to children born to U.S. citizens 

who cannot otherwise transmit citizenship; and … 

(6) INA 320 pertains to children born out of wedlock 

to a U.S. citizen parent who cannot otherwise 

transmit citizenship. 

NOTE: Children adopted by U.S. citizens or claiming citizenship 

through the naturalization of a parent cannot benefit from INA 

320 unless they have Lawful Permanent Resident (“LPR”) 

status, even if they are residing in the US. 

CCA - Condition Detail 3 - 7 FAM 1158.2 

(USCIS Memorandum HQ 70/34.2-P September 26, 2003, 

transmitting Memorandum Opinion of the Acting Assistant 

Attorney General, Office of Legal Counsel for the Acting 

Principal Legal Advisor Bureau of Citizenship and Immigration 

Services, Department of Homeland Security dated July 24, 

2003.) A child must meet the definition of child under INA 101(c) 

to qualify under INA 320. Since INA 101(c) requires legitimation, 

and since legitimation is a concept that involves fathers (not 

mothers), a child born out of wedlock who claims citizenship 

through his/her father, must be legitimated to qualify under INA 

320. Of course, to the extent that countries have adopted 

collective legitimation statutes, and that legitimation by actual 

parental act (as opposed to operation of law) is sometimes not 

necessary and in certain circumstances may not even be 

possible, that becomes relevant in the determination 

DNA Tests 

DNA Collection 

• DNA testing for visa and citizenship purposes must be done by 

a lab that is accredited by the American Association of Blood 

Banks (AABB). Names of AABB accredited labs CAN BE 

FOUND ON THE INTERNET AT www.aabb.org. 

http://www.aabb.org/sa/facilities/Pages/RTestAccrFac.aspx 

http://travel.state.gov/visa/immigrants/info/info_1337.html 

• Deoxyribonucleic Acid (DNA) testing is the most accurate and 

widely available technology to test a biological relationship. 

The preferred specimen collection technique for DNA testing is 

by buccal (cheek or mouth cavity) swab 

All DNA collection for visa applicants is done in the 

Consular Section of the US Embassy or Consulate 

by a designated physician or medical technician and 

witnessed by Embassy officers managing the 

process. The day of the DNA collection appointment, 

t 

the applicant must come to the U.S. Embassy with 

the following documents: 

• The visa applicant’s passport 

• A photo of the applicant 

• A receipt from the panel physician showing payment 

for the DNA collection 

5


Fact Pattern #1 


Jon and David are a same sex couple and are USCs. They are 

legally married under state law in the US. They arrange for a 

surrogate in India to carry the child and David’s sperm is used 

to fertilize the egg of an anonymous donor in vitro. Baby son, 

Ian, is born in India on January 5, 2011. Is Ian a USC 

• Legitimation, Acknowledge Paternity, or Establish Paternity 

in Court by David of Ian 

• David agrees to support Ian financially until age 18 

• David proves physical presence in US for 5 years before Ian’s 

birth, 2 of which are after David was 14 

Juan is an LPR and Emily is a USC. They are married. Their 

friend Joan agrees to serve as a surrogate. Joan lives in 

Canada. Juan is the sperm donor and Emily is the egg donor. 

Joan cannot enter the US without a waiver, which is not issued 

by USCIS. Molly is born in Canada to Joan via the in vitro 

fertilization on Valentine’s Day in 2011. Is Molly a USC 

• In wedlock case, one USC parent. 

• US citizenship transmitted through mother physically present in 

US or outlying possessions for not less than 5 years before 

birth of child (2 of 5 years after age 14) 7 FAM 1131.4-2(b) 


Considerations for Tissue Banks 

Sarah and Sam are married. Sarah gives birth 

abroad to Zachary after in vitro fertilization of a 

transplanted embryo from anonymous donors of the 

egg and sperm. Zachary does not have a claim to 

US citizenship. 

• Make it clear in any agreement related to the provision of an 

embryo, egg, or sperm that the Tissue Bank is providing no 

advice or direction regarding the citizenship of the potential 

resulting child and that immigration counsel must be consulted. 

• Make it clear that any birth outside of the US may require 

extensive applications to have the child legally enter the US 

with no guarantee of issuance. 

• Reevaluate documentation of citizenship of sperm and egg 

donors. 

• Carefully consider legitimation issues in the out of wedlock fact 

pattern. 

References 

• DOS Foreign Affairs Manual 

• Titles 8 and 22 of the Code of Federal 

Regulations 

• Sections 301, 309, and 320 of the INA 

• Hague Convention on International Adoption 

Kathleen Campbell Walker, shareholder 

Head of Immigration Practice Group 

Cox Smith Matthews Incorporated 

www.coxsmith.com 

com 

915-541-9360 

kwalker@coxsmith.com 

6

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