Citizenship test for dependent


D

davidrosenbaum

I have a case of a US citizen and a non-US citizen who
reside abroad. They have three children, all born outside
the US. A few months ago, they managed to get their kids US
citizenship (passports, SS#, the works).

It seems clear that going forward ,they can be claimed as
dependents (they meet the other tests), but I have some
doubt as to prior years (which are still unfiled).

I've had other cases in which children are born to two US
citizens who lived in the US till adulthood, and the kids
are thus pretty much automatically entitled to citizenship.
Even in cases when the child wasn't "registered" until the
following year, I've always claimed (and never had rejected)
them as dependents, and even had them eligible for the child
tax credit.

Here, however, in the said years, the children were not US
citizens, though I guess they could have received
citizenship based on the US parent.

Pub 201 states:

"Child's place of residence. Children usually are citizens
or residents of the country of their parents. If you were a
U.S. citizen when your child was born, the child may be a
U.S. citizen even if the other parent was a nonresident
alien and the child was born in a foreign country. If so,
this test is met."

"May be" doesn't help that much. I assume what they're
saying is - it depends on immigration law.

The Code says:

152(b)(3) CITIZENS OR NATIONALS OF OTHER COUNTRIES. --
152(b)(3)(A) IN GENERAL. --The term "dependent" does not
include an individual who is not a citizen or national of
the United States unless such individual is a resident of
the United States or a country contiguous to the United
States.

152(b)(3)(B) EXCEPTION FOR ADOPTED CHILD. --Subparagraph (A)
shall not exclude any child of a taxpayer (within the
meaning of subsection

(f)(1)(B)) from the definition of "dependent" if --
152(b)(3)(B)(i) for the taxable year of the taxpayer, the
child has the same principal place of abode as the taxpayer
and is a member of the taxpayer's household, and
152(b)(3)(B)(ii) the taxpayer is a citizen or national of
the United States.

So in our case, the kids meet (i) and (ii), but the problem
is that (B) refers to an adopted child - and I assume an
adopted child only. It seems funny that an adopted child
should get a better deal than a natural child, but there
could be a logic to it.

Any thoughts?

David Rosenbaum
 
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A

A.G. Kalman

I have a case of a US citizen and a non-US citizen who
reside abroad. They have three children, all born outside
the US. A few months ago, they managed to get their kids US
citizenship (passports, SS#, the works).

It seems clear that going forward ,they can be claimed as
dependents (they meet the other tests), but I have some
doubt as to prior years (which are still unfiled).

I've had other cases in which children are born to two US
citizens who lived in the US till adulthood, and the kids
are thus pretty much automatically entitled to citizenship.
Even in cases when the child wasn't "registered" until the
following year, I've always claimed (and never had rejected)
them as dependents, and even had them eligible for the child
tax credit.

Here, however, in the said years, the children were not US
citizens, though I guess they could have received
citizenship based on the US parent.

Pub 201 states:

"Child's place of residence. Children usually are citizens
or residents of the country of their parents. If you were a
U.S. citizen when your child was born, the child may be a
U.S. citizen even if the other parent was a nonresident
alien and the child was born in a foreign country. If so,
this test is met."

"May be" doesn't help that much. I assume what they're
saying is - it depends on immigration law.

The Code says:

152(b)(3) CITIZENS OR NATIONALS OF OTHER COUNTRIES. --
152(b)(3)(A) IN GENERAL. --The term "dependent" does not
include an individual who is not a citizen or national of
the United States unless such individual is a resident of
the United States or a country contiguous to the United
States.

152(b)(3)(B) EXCEPTION FOR ADOPTED CHILD. --Subparagraph (A)
shall not exclude any child of a taxpayer (within the
meaning of subsection

(f)(1)(B)) from the definition of "dependent" if --
152(b)(3)(B)(i) for the taxable year of the taxpayer, the
child has the same principal place of abode as the taxpayer
and is a member of the taxpayer's household, and
152(b)(3)(B)(ii) the taxpayer is a citizen or national of
the United States.

So in our case, the kids meet (i) and (ii), but the problem
is that (B) refers to an adopted child - and I assume an
adopted child only. It seems funny that an adopted child
should get a better deal than a natural child, but there
could be a logic to it.

Any thoughts?
It all is going to depend upon US law relating to a child
obtaining citizenship "automatically." If the conditions
were met, then the children would have been US citizens at
birth. If not, then the children became US citizens when
they met the criteria.

A quick search on the internet found the following
information from a US Embassy:

Physical Presence

This is the actual time when the parent was physically
within the borders of the United States. This means that any
travel outside the United States, including vacation, should
be excluded. Maintaining a residence in the U.S. does not
constitute physical presence. Please submit old passports if
available, as evidence. If unavailable, other evidence may
be required. Note: Any periods of time spent overseas with
the United States Military/Government or qualifying
international organization (such as the United Nations) may
be computed as physical presence in the United States for
transmission of citizenship purposes. Time spent as a
dependent of such person may also be computed as physical
presence. Military records or other proof may be requested.

Children born abroad to U.S. citizen parents may have a
claim to U.S. citizenship. The following is a brief
description of the various circumstances under which a child
born abroad acquires American citizenship.

Child born in wedlock to two U.S. citizens: A child born
outside of the United States or its outlying possessions to
two U.S. citizen parents is entitled to citizenship,
provided one of the parents had, prior to the birth of the
child, been resident in the United States or one of its
outlying possessions. (No specific period of time is
required.)

Child born in wedlock to one U.S. citizen parent and one non
U.S. citizen parent on or after November 14, 1986: A child
born outside of the United States to one U.S. citizen parent
and one non-U.S. citizen parent may be entitled to
citizenship providing the U.S. citizen parent had been
physically present in the United States or one of its
outlying possessions for five years, at least two years of
which were after s/he reached the age of fourteen. This
period of physical presence must have taken place prior to
the birth of the child.

Child born in wedlock to one U.S. citizen parent and one
non-U.S. Citizen parent between December 24, 1952 and
November 13, 1986: A child born outside of the United States
to one U.S. Citizen parent and one non-U.S. Citizen parent,
may be entitled to citizenship providing the U.S. Citizen
parent had, prior to the birth of the child, been physically
present in the United States for a period of ten years, at
least five years of which were after s/he reached the age of
fourteen.

Child born out of wedlock to a U.S. Citizen mother: A child
born outside of the United States and out of wedlock to a
U.S. Citizen mother is entitled to U.S. citizenship
providing the U.S. Citizen mother had been physically
present in the United States for a continuous period of at
least one year at some time prior to the birth of her child.
(NOTE: The U.S. citizen mother must have lived continuously
for 1 year IN THE UNITED STATES OR ITS OUTLYING POSSESSIONS.
Periods spent overseas with the U.S. government/military or
as a government/military dependent, may NOT be computed as
physical presence in the U.S.).

Child born out of wedlock to a U.S. Citizen father: A child
born outside of the United States to an U.S. Citizen father
where there is no marriage to the non-American mother is
entitled to U.S. Citizenship providing the American citizen
father had been physically present in the United States for
the period of time as specified in previous paragraphs for
children born in wedlock to one U.S. Citizen and one
non-U.S. Citizen parent, either before or after November 14,
1986; and

* the alien mother completes an "Affidavit to establish
paternity of child" at this office before a consular
officer; and

* the father signs a sworn statement agreeing to provide
financial support for the child until s/he reaches the
age of 18 years; and

* the father provides a written statement acknowledging
paternity; or

* the child is legitimated under local law; or

* paternity is established by a competent court before the
child attains the age of 18 years;
 
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S

Stuart A. Bronstein

I have a case of a US citizen and a non-US citizen who
reside abroad. They have three children, all born outside
the US. A few months ago, they managed to get their kids US
citizenship (passports, SS#, the works).

The Code says:

152(b)(3) CITIZENS OR NATIONALS OF OTHER COUNTRIES. --
152(b)(3)(A) IN GENERAL. --The term "dependent" does not
include an individual who is not a citizen or national of
the United States unless such individual is a resident of
the United States or a country contiguous to the United
States.

152(b)(3)(B) EXCEPTION FOR ADOPTED CHILD. --Subparagraph (A)
shall not exclude any child of a taxpayer (within the
meaning of subsection

(f)(1)(B)) from the definition of "dependent" if --
152(b)(3)(B)(i) for the taxable year of the taxpayer, the
child has the same principal place of abode as the taxpayer
and is a member of the taxpayer's household, and
152(b)(3)(B)(ii) the taxpayer is a citizen or national of
the United States.

So in our case, the kids meet (i) and (ii), but the problem
is that (B) refers to an adopted child - and I assume an
adopted child only. It seems funny that an adopted child
should get a better deal than a natural child, but there
could be a logic to it.
The heading says "adopted child" but the text says "any
child." Ignore the heading, believe the text.

Stu
 
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R

Rich Wales

David said:
I have a case of a US citizen and a non-US citizen who
reside abroad. They have three children, all born outside
the US. A few months ago, they managed to get their kids
US citizenship (passports, SS#, the works).
The children may (or may not) have been US citizens since
birth, and what the parents did may (or may not) simply have
been a process of documenting the fact that the kids had
been US citizens all along.

For more precise detail on US citizenship law, you need to
go to the Immigration and Nationality Act (which is codified
in Title 8 of the US Code -- though the section numbers in
the original Act are not the same as the section numbers in
8 USC).
I've had other cases in which children are born to two US
citizens who lived in the US till adulthood, and the kids
are thus pretty much automatically entitled to citizenship.
Actually, if both parents of a non-US-born child are US
citizens (and the parent are married to each other), the
child is a US citizen "at birth", provided either parent had
=ever= lived in the US for =any= length of time. INA
301(c); 8 USC 1401(c).

If only one parent of a non-US-born child is a US citizen,
then the rules are more complicated, involving a certain
minimum time period during which the American parent must
have been physically in the US before the child's birth.
Also, the rules have changed from time to time, and you need
to be cognizant of the law as it stood at the time of the
child's birth. The last significant change of this sort
took place on 14 Nov. 1986.
Even in cases when the child wasn't "registered" until the
following year, I've always claimed (and never had rejected)
them as dependents, and even had them eligible for the child
tax credit.
Because the child was in fact a US citizen at birth. The
process of registering the child with US consular officials
abroad (or with State Dept. officials in the US later on)
documents the fact of the child's citizenship status, but
this registration is NOT a conferral of citizenship; that
happened automatically when the child was born. (This also
means, BTW, that a non-US-born child of an American parent
or parent may arguably qualify as "natural born" and be
eligible to become President one day -- but that's another
story.)
Here, however, in the said years, the children were not US
citizens, though I guess they could have received citizen-
ship based on the US parent.
I'm not sure that's true. It would depend on the
circumstances; the children might have had US citizenship
since birth, or they might have acquired it
(non-retrospectively) under the terms of a law such as the
Child Citizenship Act of 2000.
"Child's place of residence. Children usually are citizens
or residents of the country of their parents.
That's a gross overgeneralization involving the citizenship
laws of essentially every country in the world.
If you were a U.S. citizen when your child was born, the
child may be a U.S. citizen even if the other parent was
a nonresident alien and the child was born in a foreign
country. If so, this test is met." "May be" doesn't help
that much. I assume what they're saying is - it depends
on immigration law.
Indeed. As I said, check the Immigration and Nationality
Act. Your starting point for citizenship at birth would be
sections 301 et seq. of the INA (8 USC 1401 et seq.).

Note, of course, that a child born outside the US to an
American parent or parents may very possibly be a citizen,
not only of the US, but also of the country of birth and/or
the country of the non-American parent. Since each country
defines citizenship according to its own laws -- generally
without regard for the laws of other countries -- it's quite
possible that a child could be born with two or more
citizenships. From the point of view of US law, though, the
other citizenships are irrelevant (just as the child's US
citizenship may be irrelevant from the POV of another
country's laws).

Rich Wales (e-mail address removed) http://www.richw.org
*DISCLAIMER: I am not a lawyer or professional tax adviser. My
comments are for discussion purposes only and are not intended to
be relied upon as legal or professional advice.
 
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D

davidrosenbaum

Stuart said:
(e-mail address removed) wrote:
The heading says "adopted child" but the text says "any
child." Ignore the heading, believe the text.
`
Thanks, Stuart. But if you noticed (and I admit that my
formatting was not good here), the law said "any child of a
taxpayer (within the meaning of subsection (f)(1)(B))". And
(f)(1)(B) refers to adopted children:

"(B) Adopted child
In determining whether any of the relationships specified in
subparagraph (A)(i) or paragraph (4) exists, a legally
adopted individual of the taxpayer, or an individual who is
lawfully placed with the taxpayer for legal adoption by the
taxpayer, shall be treated as a child of such individual by
blood."

So, as I see it, the text of the law is actually in
agreement with the heading.

David
 
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D

davidrosenbaum

<big ship by moderator>


Wow. That was an in-depth answer! Thanks.

A couple of points:

I wrote:

Here, however, in the said years, the children were not US
citizens, though I guess they could have received
citizenship based on the US parent.

You replied:

"I'm not sure that's true. It would depend on the
circumstances; the children might have had US citizenship
since birth, or they might have acquired it
(non-retrospectively) under the terms of a law such as the
Child Citizenship Act of 2000."

Actually, what I meant was that since eventually they did
get citizenship, they could have received citizenship in
those years using the same rules they eventually did
actually use to attain citizenship. But I agree that that
does not determine whether they were <automatically>
eligible.

As to your point about them being dual citizens: indeed,
they are dual citizens. And as you mentioned, that's
irrelevant for this issue.

I guess I'll have to look at the Immigration and Nationality
Act. Though it seems to me that's more for an immigration
lawyer.

David
 
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S

Stuart A. Bronstein

Stuart A. Bronstein wrote:
Thanks, Stuart. But if you noticed (and I admit that my
formatting was not good here), the law said "any child of a
taxpayer (within the meaning of subsection (f)(1)(B))". And
(f)(1)(B) refers to adopted children:
I suppose they did it that way because it was unnecessary
to refer to natural children. If the citizen parent satisfies
8 USC §1401(g), the child was a citizen at birth. Section
1401(g) says that a person is a citizen at birth if he is

"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:..."

Stu
 
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D

davidrosenbaum

I suppose they did it that way because it was unnecessary
to refer to natural children. If the citizen parent satisfies
8 USC =A71401(g), the child was a citizen at birth. Section
1401(g) says that a person is a citizen at birth if he is

"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:..."
Thanks. That is exactly correct. Since in this case, the US
parent was not in the US for a period etc, the kid doesn't
qualify. I checked this with their immigration lawyer and
she confirmed that they were not eligible automatically for
citizenship upon birth. So until they actually received
citizenship, they were not US citizens.

David
 
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