Can someone direct me to a reference that explains when a person is subject to being a US citizen?
One scenario is Canadian father and US mother have child while living in US and then move to Canada prior to 18th birthday. Is the child always considered a US citizen?
Another scenario is Canadian father and US mother have child while living in Canada. (I think in this case the child would need to apply to be a US citizen).
Thanks,
Don
US citizen status
Moderator: Mark T Serbinski CA CPA
I am assuming you are asking this question to determine the requirement to file tax in the US.
If so, the question is not whether or not you are a US citizen, but rather are you considered a US person for tax purposes.
A US person is someone with US citizenship, this be attained by being born in the United States, regardless of the parents nationality, or being born in Canada to parents who are citizens of the United States (I believe this is what is referred to as the 'accidental American).
If you reside in the USA for more than 183 days, or you are in possession of a green card, you are also considered a 'US person' for tax purposes.
If so, the question is not whether or not you are a US citizen, but rather are you considered a US person for tax purposes.
A US person is someone with US citizenship, this be attained by being born in the United States, regardless of the parents nationality, or being born in Canada to parents who are citizens of the United States (I believe this is what is referred to as the 'accidental American).
If you reside in the USA for more than 183 days, or you are in possession of a green card, you are also considered a 'US person' for tax purposes.
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DonMurphyCanada
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- Joined: Sat Mar 01, 2014 11:41 pm
Thanks for the reply.
Yes for US income tax filing for my kids. I have kids that were born in the US (US citizens) and kids that were born in Canada and have lived there their entire life. (I am a Canadian and my wife is born an raised in the US. We married at 25 had three kids then moved to Canada and had three more kids.
I understand my older three kids are US citizens its the younger three I am wondering about.
http://travel.state.gov/content/travel/ ... broad.html
"Birth Abroad to One Citizen and One Alien Parent in Wedlock" seems to apply in my case. It appears that my younger three kids also attained citizenship at birth.
Am I reading this correctly?
[quote="Taxpoor"]I am assuming you are asking this question to determine the requirement to file tax in the US.
If so, the question is not whether or not you are a US citizen, but rather are you considered a US person for tax purposes.
A US person is someone with US citizenship, this be attained by being born in the United States, regardless of the parents nationality, or being born in Canada to parents who are citizens of the United States (I believe this is what is referred to as the 'accidental American).
If you reside in the USA for more than 183 days, or you are in possession of a green card, you are also considered a 'US person' for tax purposes.[/quote]
Yes for US income tax filing for my kids. I have kids that were born in the US (US citizens) and kids that were born in Canada and have lived there their entire life. (I am a Canadian and my wife is born an raised in the US. We married at 25 had three kids then moved to Canada and had three more kids.
I understand my older three kids are US citizens its the younger three I am wondering about.
http://travel.state.gov/content/travel/ ... broad.html
"Birth Abroad to One Citizen and One Alien Parent in Wedlock" seems to apply in my case. It appears that my younger three kids also attained citizenship at birth.
Am I reading this correctly?
[quote="Taxpoor"]I am assuming you are asking this question to determine the requirement to file tax in the US.
If so, the question is not whether or not you are a US citizen, but rather are you considered a US person for tax purposes.
A US person is someone with US citizenship, this be attained by being born in the United States, regardless of the parents nationality, or being born in Canada to parents who are citizens of the United States (I believe this is what is referred to as the 'accidental American).
If you reside in the USA for more than 183 days, or you are in possession of a green card, you are also considered a 'US person' for tax purposes.[/quote]
Hi DonMurphyCanada,
I think officially, your 3 younger children also attained US citizenship at birth (this is my situation, born in canada, except both my parents are US citizens). I wish I could substatiate this with a link, but I read on the Isaac Brock society page a story about 2 siblings who were born in Canada of US parents and they went to the US consulate to get SSNs for the purpose of filing tax returns and becoming US tax compliant. In the process, it came out that they didn't actually want US citizenship, and the officer said "The US won't force citizenship on someone born outside the US who doesn't desire the citizenship".
Given that there is no paper evidence of your younger 3 children's US status - I would recommend just consistently saying and acting Canadian only (if this is what you or they want).
Someone would have to prove that your wife meets the 5 year residency requirement to automatically pass US citizenship to your 3 children - that would be hard to prove. Your 3 kids have Canadian passports showing a Canadian birthplace.
Best of Luck.
I think officially, your 3 younger children also attained US citizenship at birth (this is my situation, born in canada, except both my parents are US citizens). I wish I could substatiate this with a link, but I read on the Isaac Brock society page a story about 2 siblings who were born in Canada of US parents and they went to the US consulate to get SSNs for the purpose of filing tax returns and becoming US tax compliant. In the process, it came out that they didn't actually want US citizenship, and the officer said "The US won't force citizenship on someone born outside the US who doesn't desire the citizenship".
Given that there is no paper evidence of your younger 3 children's US status - I would recommend just consistently saying and acting Canadian only (if this is what you or they want).
Someone would have to prove that your wife meets the 5 year residency requirement to automatically pass US citizenship to your 3 children - that would be hard to prove. Your 3 kids have Canadian passports showing a Canadian birthplace.
Best of Luck.
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DonMurphyCanada
- Posts: 73
- Joined: Sat Mar 01, 2014 11:41 pm
Hi MGeorge,
You are correct. I posted my own answer to my question above. Look under
Birth Abroad to One Citizen and One Alien Parent in Wedlock
A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth.
I am now wondering what to do about this. Do I need to file all these messy forms for them too - sigh....
You are correct. I posted my own answer to my question above. Look under
Birth Abroad to One Citizen and One Alien Parent in Wedlock
A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) of the INA provided the U.S. citizen parent was physically present in the United States or one of its outlying possessions for the time period required by the law applicable at the time of the child's birth.
I am now wondering what to do about this. Do I need to file all these messy forms for them too - sigh....
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DonMurphyCanada
- Posts: 73
- Joined: Sat Mar 01, 2014 11:41 pm
US Children are not exempt from US taxation. However if they earn less than the single limit of EARNED income (wages), AND if they have less than an exemption's worth of UNearned income (investment income), they do not have to file.
A parent of US children would be advised to file their own returns to get the $1000 child tax credit of course, even if they somehow were not US citizens.
A parent of US children would be advised to file their own returns to get the $1000 child tax credit of course, even if they somehow were not US citizens.
nelsona non grata. Non pro. Please Search previous posts, no situation is unique as you might think. Happy Browsing 
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DonMurphyCanada
- Posts: 73
- Joined: Sat Mar 01, 2014 11:41 pm
For completeness sake I will post this link as a reference I found about foreign born children born to to two parents where only one of the parents was a US Citizen.
I found it interesting because it details How my (eventual) grandchildren will be classified. http://www.uscis.gov/us-citizenship/cit ... gh-parents
Kudos to NelsonA for mentioning this stipulation in a prior post.
I found it interesting because it details How my (eventual) grandchildren will be classified. http://www.uscis.gov/us-citizenship/cit ... gh-parents
Kudos to NelsonA for mentioning this stipulation in a prior post.
It appears that if a child never resided in the USA, such child is a case of "citizenship on application†(8 U.S.C. §1431), in contrast to where the child did reside in the USA (8 U.S.C. §1433) that is a case of “automatic citizenship".
8 USC § 1433 - CHILDREN BORN AND RESIDING OUTSIDE THE UNITED STATES; CONDITIONS FOR ACQUIRING CERTIFICATE OF CITIZENSHIP
a) Application by citizen parents; requirements
A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 1431 of this title. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:
(1)At least one parent (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization.
(2)The United States citizen parent—
(A)has (or, at the time of his or her death, had) been 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; or
(B)has (or, at the time of his or her death, had) a citizen parent who has been 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.
(3)The child is under the age of eighteen years.
(4)The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).
(5)The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.
(b) Attainment of citizenship status; receipt of certificate
Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 1448(a) of this title, upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.
8 USC § 1431 - CHILDREN BORN OUTSIDE THE UNITED STATES AND RESIDING PERMANENTLY IN THE UNITED STATES; CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED
a)A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(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 eighteen years.
(3)The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
http://travel.state.gov/travel/living/r ... _4993.html (outdated) used to say "Most children born abroad to a U.S. citizen parent or parents acquire U.S. citizenship at birth. http://travel.state.gov/content/passpor ... birth.html
This case may also be of interest to you: LEAH M. CARLEBACH AND URIEL FRIED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
8 USC § 1433 - CHILDREN BORN AND RESIDING OUTSIDE THE UNITED STATES; CONDITIONS FOR ACQUIRING CERTIFICATE OF CITIZENSHIP
a) Application by citizen parents; requirements
A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section 1431 of this title. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:
(1)At least one parent (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization.
(2)The United States citizen parent—
(A)has (or, at the time of his or her death, had) been 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; or
(B)has (or, at the time of his or her death, had) a citizen parent who has been 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.
(3)The child is under the age of eighteen years.
(4)The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).
(5)The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.
(b) Attainment of citizenship status; receipt of certificate
Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section 1448(a) of this title, upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.
8 USC § 1431 - CHILDREN BORN OUTSIDE THE UNITED STATES AND RESIDING PERMANENTLY IN THE UNITED STATES; CONDITIONS UNDER WHICH CITIZENSHIP AUTOMATICALLY ACQUIRED
a)A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(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 eighteen years.
(3)The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.
http://travel.state.gov/travel/living/r ... _4993.html (outdated) used to say "Most children born abroad to a U.S. citizen parent or parents acquire U.S. citizenship at birth. http://travel.state.gov/content/passpor ... birth.html
This case may also be of interest to you: LEAH M. CARLEBACH AND URIEL FRIED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
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DonMurphyCanada
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- Joined: Sat Mar 01, 2014 11:41 pm
Interesting. So the link I posted above http://www.uscis.gov/us-citizenship/cit ... gh-parents that seemed to indicate they were automatic citizens is incorrect then?