What is Derivative Citizenship and how does it affect my claim for Italian dual citizenship?

A little-known concept in US immigration law, which can affect individuals seeking to claim Italian citizenship through descent, is the so-called derivative citizenship process. For a period of time in US immigration law, foreign-born children could derive US citizenship from a parent who became a naturalized US citizen.

From 1907 – 1952, derivative citizenship was regulated by three successive laws.

Until 1934

Prior to March 2, 1907, minors acquired citizenship of the United States through the naturalization of their parents.  The 1907 law provided citizenship for children under 21 years of age if their parents were duly naturalized and residing in the United States.

A derivative citizenship claim required proof of a parent’s naturalization. Furthermore, the child must have been lawfully admitted to the United States with an arrival manifest, be under the age of 21 at the time the parent was naturalized and residing be permanently in the United States before the age of 21.

Therefore, any child – even if born abroad – could have automatically acquired US citizenship at the time of their parent’s naturalization, if residing in the USA, or, diversely, at the moment of their lawful admission to the USA for permanent residence purposes.

1934 to 1941

The Equal Nationality Act of 1934 partially amended the law of 1907 and, subsequently, the scope of derivative citizenship by adding a minimum term of US residency for the child and allowing a naturalized foreign-born mother to pass on her US citizenship to her child born abroad (an important milestone in giving US women equal nationality rights).

The foreign-born child of an individual who naturalized on or after May 24, 1934 could claim derivative naturalization – provided the naturalization occurred prior to the child turning 21 years old, that the child was lawfully admitted to the US – and only after 5 years of permanent residence in the United States, including residence completed after age 21 and after January 13, 1941.

1941 to 1952

Section 313 of the Nationality Act of 1940 lowered the age threshold from 21 to 18 and eliminated the possibility of getting citizenship from just one naturalized parent.

Amended requirements provided that:

  1. Both parents must naturalize, or if only one parent naturalized, the other parent must 1) be a U.S. citizen at the time of the child’s birth and remain a U.S. citizen, 2) be deceased, or 3) the parents must be legally separated and the naturalizing parent must have legal custody.
  2. Parent or parents must have naturalized prior to the child’s 18th birthday.
  3. Child must have been lawfully admitted for permanent residence and residing in U.S. before the child’s 18th birthday.
  4. Illegitimate child generally can derive only if, while she or he was under 16, and on or after January 13, 1941 and before December 24, 1952, she or he 1) became a lawful permanent resident, and 2) the mother naturalized;
  5. Child must be legitimate under the law of the child’s residence or place of domicile before turning 16 and be in the legal custody of the legitimating parent.
  6. Adopted child and/or stepchild did not qualify for derivative citizenship.

From 1952 and until 1978, the Immigration and Nationality Act of 1952 maintained the 1940 requirements and added a requirement that the child must be unmarried.

Child derivation laws applied to minor children born abroad legally and entering the USA when her or his parent was already naturalized. In such cases, the child would automatically become a US citizen after residing in the USA provided certain conditions existed.

In such cases, the child is included in her or his parent’s naturalization petition or certificate and no other formal records of naturalization or non-naturalization exist for said ancestor.

If your Italian-born ancestor acquired US citizenship in this way, most likely you will not be able to pursue Italian citizenship through this ancestor. However, this does not mean that you must exclude the possibility of pursuing Italian dual citizenship. Often, there is another ancestor in your family tree born in Italy. At With_Papers we will assist you in determining the bloodline which will qualify you to pursue your dream of Italian dual citizenship.

Learn more about becoming an Italian dual citizen with the knowledgeable team at With_Papers

Becoming an Italian dual citizen is a dream for many, but starting the application process can be overwhelming. At With_Papers, we want to help you make your dreams a reality by guiding you every step of the way and informing you about the pros and cons of Italian dual citizenship. Our compassionate team listens to your story and understands your unique needs to create a personalized plan to achieve a successful outcome.

With over 20 years of experience and a founder who has been an Italian dual citizen for over two decades, you can trust us to manage every element of your case effectively. To learn more about becoming an Italian citizen and if it is the right path for you, call us at 718-355-9430 or fill out our contact form or schedule a free consultation today.

 

Interested in more information about child derivation laws, read here.