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Whatever the immigration status of alien couples is so long as they are residing or physically present in the United States, their child born in the U.S. is an American citizen.  The U.S. Constitution bestows citizenship based on place of birth (“jus soli” or law of the soil).

Other countries (like the Philippines), whose legal systems were or are highly influenced by the French Civil Code, purely subscribe to “jus sanguinis” or “law of the bloodline” – that is citizenship transmitted through blood relationship. With this legal principle, a child born in the Philippines to non-Filipino parents does not automatically become a Filipino citizen. One of the parents must be a Filipino to transmit Filipino citizenship to the child.

Not of common knowledge is the fact that “jus sanguinis” is also recognized as a means of acquiring citizenship by birth in the U.S.  Specific rules are provided solely by federal statutes and are complicated.

Is a child born to U.S. citizen parent/s outside the territorial jurisdiction of the U.S. and all of its outlying possessions automatically a U.S. citizen? Not necessarily. Federal laws must be checked whether U.S. citizenship can be transmitted from parent/s to child.

The applicable statutory provisions and conditions that existed at the time of the person’s birth are relevant as the laws on transmitting citizenship based on “jus sanguinis” have evolved through the years.

The two basic and controlling components that a consular officer needs to look into in determining whether citizenship has been transmitted are: (1) whether “blood relations” exist between the child and the U.S. citizen-parent; and (2) whether the said U.S. citizen parent/s has or have complied with the requirement of “residency” or “physical presence” in the United States for a number of years.

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In order to establish “blood relations,” the mere fact of birth to the U.S. citizen parent is not enough. Acknowledgement of parent-child relationship is equally important.

One common hindrance to the ability to transmit U.S. citizenship is proving “residency” or “physical presence” in the United States by the U.S. citizen parent. Depending on whether the parent is the mother or the father, the number of years of  residency or physical presence in the U.S.  for either must be established. Proving    “residence” or “physical presence” can be contentious and controversial.

Although the law has on occasions defined what constitutes “residency,” it has not provided what should be considered as “physical presence.”

The difference between the two concepts is significant. In many instances, the degree of proof that should be adduced is pivotal in deciding whether a person should be removed from the United States due to the commission of an  offense/s. This could result in deportation of the undocumented or green card holder, depending on the circumstances of the case.

However, if you have been a U.S. citizen since birth, the motion for removal proceedings should not have been filed in the first place.

Since 1952, the legal trend has shifted  to requiring the parent’s “physical presence” in the U.S. rather than “residency.” “Residence” connotes a more permanent place of abode, meaning one lives in a place that is fixed, while “physical presence” does not necessarily require one to have a “fixed place” or “home” and still has actual physical presence in the U.S.

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You can be transient but still be considered to have actual physical presence in the U.S. The latter is less stringent to establish.

Does this mean that US immigration policy is now in sync with the reality of globalization?