How to become a American citizen from Canada

If you’re living in Canada but suspect you may also have U.S.  citizenship, and you want to apply for a U.S.  Passport, then you need to read this. You may in fact be eligible for a U.S.  passport by descent. What you need to know is that there are a number of situations where you might be eligible for a U.S.  Passport by descent. If you are eligible for a U.S. passport, you should strongly consider the pros and cons of getting this document.

Benefits	Drawbacks
·         Can work in the United States	·         Must file a second tax return whether or not you’re actually living in the U.S. (in most cases this does not result in more taxes but more paperwork).
·         Access to Banking
·         Second residence without any restrictions
·         Voting rights
·         Getting American citizen for your kids as well (note: this option is not automatic, and some planning will be needed).
·         Access to Schooling at a lower price as well as scholarships opportunities
·         Having a second place to live and work
·         You become more valuable to employers and the marketplace

Most people pay tens of thousands of dollars, do countless amounts of paperwork and wait for many years before they are eligible for a second passport. Passports through descent are like a shortcut that cuts down on everything by 95% in terms of cost, time, and effort.

Still not sure, need to talk to someone about this topic? Book in a 30-minute paid consultation with one of our team members.
* Note: This is only general information and more expert advice should be obtained from a lawyer.

Am I a U.S. Citizen Tool

Find out if you are a U.S. citizen, in Canada. 

• Were you born in the U.S. and as they say, “subject to the jurisdiction thereof”? This one is the subject of debate when it comes to those born in the U.S. with undocumented/illegal parents, as we explain below.
• Were you born in the U.S. to a parent who was a member of an Indian tribe, Eskimo tribe, Aleutian tribe, or another aboriginal tribe?
• Were you born outside the U.S. to American parents who had a residence in the U.S.?
• Were you born somewhere in American Samoa or Swains Island to at least one parent who was a U.S. citizen who had lived at least 1 continuous year in the U.S. or American Samoa or Swains Island when you were born?
• Were you abandoned and then found in the U.S. before you turned 5 and do not know who your birth parents were? Did you not find out until after you turned 21?
• Were you born outside the U.S. and outside its outlying possessions to one alien parent and one U.S. citizen parent who had resided in the U.S. for at least 5 years, 2 of which were after they turned 14?
• Were you born before noon (EST) May 24, 1934, outside the U.S. and outside its outlying possessions to an alien father and U.S. citizen mother who had resided in the U.S. before you were born?

If any one of these applies to you, then you are likely a U.S. citizen at birth. While the first case seems cut and dried it has been the subject of debate recently as we’ll explain below. For now, let’s take a look at the other cases of U.S. citizenship at birth, those involving a person who was born abroad.

Born outside the U.S. & Outlying Possessions

Let’s start with people born abroad.

U.S.  Code, specifically 8 U.S. C 1401, lists the conditions for a child to gain U.S.  citizenship at birth. For people born abroad – and that means outside U.S.  Outlying Possessions as well – there are 3 possibilities listed in 8 U.S. C 1401:

• (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;
• (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;

Let’s look at each of these three clauses and summarize the legalese to get a clear view of what the requirements are for U.S.  citizenship at birth for people born abroad.

1. If both your parents were U.S. citizens at your birth, then only one of them has had to have lived in the United States or it’s outlying possessions before you were born. It does NOT state that they had to have been born in the U.S. , only that they had to be a U.S.  citizen who has – at some point before you were born – lived in the U.S. .
2. If one of your parents is a S. citizen and the other is a U.S.  National but not a citizen, then the U.S.  citizen parent must have lived for at least 1 continuous year in the U.S. or it’s outlying possessions before you were born.
   1. PLEASE NOTE: All U.S. Citizens are also U.S.   Very few people are U.S.  Nationals but not U.S.  Citizens and these non-citizen U.S. Nationals are normally people born in American Samoa or Swains Island. If you are a Non-citizen National, you can apply for a U.S.  Passport, but your passport will indicate your status as a non-citizen U.S.  national.
3. If one of your parents is an alien (neither a U.S. citizen nor a U.S.  National) and the other one is a U.S.  citizen, then the conditions for the U.S.  citizen parent become a little more rigorous. The U.S.  citizen parent must have lived in the U.S.  or its outlying possessions for at least 5 years, 2 of which have had to have been when they were older than 14. However, there are several exceptions to these residency requirements for the U.S.  citizen parent. Time spent abroad counts as residence in the U.S.  if:
   1. The U.S. parent was serving abroad in the U.S.  military,
   2. The U.S. parent was working abroad for the U.S.  government,
   3. The U.S. parent was working abroad for an international organization,
   4. The U.S. parent was the child of a parent serving abroad in the military,
   5. The U.S. parent was the child of a parent serving abroad with the U.S.  government,
   6. The U.S. parent was the child of a parent serving abroad for an international organization.

People born in the U.S. & Outlying Possessions – Part 2

Now let’s look at the other clauses in U.S.  1401 which deal with people born in the U.S. and Outlying Possessions.

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

The tricky part is the second part of (a) – and subject to the jurisdiction thereof – and how to interpret that. If your parents were illegally present in the U.S. (that is, they were undocumented) when you were born, are you subject to the jurisdiction thereof, or not? It is important because the clause itself comes from the 14^th Amendment which states:

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.

So, the question is: are illegal/undocumented aliens subject to the jurisdiction thereof? A Supreme Court decision from 1898 ruled that subject to the jurisdiction thereof only applied in the negative to diplomats and enemy combatants. That is, only diplomats and enemy combatants were NOT subject to the jurisdiction thereof.

Since then, despite the introduction of bills trying to restrict birthright citizenship, nothing has been passed by Congress and it seems that birthright citizenship is equally available to both children of alien parents legally in the U.S. and children of alien parents illegally in the U.S., although this may be decided by a Supreme Court case sometime in the future. However, for almost all people living in Canada who are interested in a U.S.  Passport by descent, this should normally not be an issue.

• (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;

This was included to right the historical wrongs when Native Americans were previously excluded from U.S.  citizenship and to extend the concept of birthright citizenship to all aboriginal cultures in the U.S. Please note that any special rights a Native American enjoys as a member of their particular tribe continue to exist and are not affected by them having birthright citizenship in the U.S.

• (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 a person;

This clause shows the way to establish U.S. citizenship if you’re born in American Samoa or Swains Island (the so-called Outlying Possessions) and avoids you being a U.S.  National but non-citizen. As long as one of your parents was a U.S. citizen who had lived in the U.S. – including American Samoa and Swains Island – for at least 1 year before you were born, then you are a U.S. citizen at birth.

• (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;

This is a fairly rare situation and it deals with infants abandoned by their birth parents in the U.S. and raised in the U.S. If you reach the age of 21 and have still not found out/been informed where you were born (and whether that was outside the U.S.) then you continue to retain your birthright citizenship.

• (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.

Again, this is a fairly rare situation and applies only to people currently in their late 80s (87 and older as of 2021) who were born outside the U.S. & Outlying Possessions before noon EST on May 24, 1934, and whose mother was a U.S. citizen who had resided in the U.S. and whose father was an alien.

However, it is possible there are older Canadian citizens who may have birthright citizenship by virtue of section (h) as long as their mother had been a U.S. citizen who had lived in the U.S. prior to their birth in Canada or elsewhere abroad. In fact, given that people born before 1946-7 in Canada were considered British subjects, the person involved may even be eligible for Canadian, British, and American citizenship.