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How are the different U.S. territories treated for purposes of birthright citizenship? What is the difference between a U.S. national and a U.S. citizen?

By January 8, 2021April 30th, 2021Immigration

The 14th Amendment of the U.S. Constitution makes clear that, in general, a person born in the United States is a U.S. citizen. But what counts as the “United States” for purposes of birthright citizenship? As the United States expanded its influence and territory over the centuries, questions about how U.S. citizenship is acquired in those territories beyond the continental United States have arisen. In many ways, these questions are still relevant today.

What are U.S. territories?

U.S. territories, as used here, are different from U.S. states (for example, Alaska or Hawaii). The territories being discussed here, unlike states, do not have a sovereign, independent government, and are essentially administered by the United States. Most U.S. states, including Alaska and Hawaii, began as territories. Other former U.S. territories later became independent countries, such as the Philippines and Micronesia. Currently, the U.S. has territories in the Caribbean Sea and Pacific Ocean. These include American Samoa (and Swains Island), Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, as well as a number of small islands that do not have a permanent population, including the Palmyra Atoll.

If a person is born in a U.S. territory, are they a citizen?

Whether a person born in a U.S. territory receives birthright citizenship depends on U.S. law. Most broadly, the 14th Amendment of the U.S. Constitution, which established that “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States,” applies only to “incorporated” territories.

What does it mean for a territory to be “incorporated”?

An “incorporated” territory is one that is considered part of the United States proper. Currently, Palmyra Atoll — which was formerly part of Hawaii — is the only incorporated U.S. territory. The island is, however, uninhabited.

Does a person born in any of the unincorporated territories receive U.S. citizenship at birth?

Yes. Several unincorporated U.S. territories confer U.S. citizenship at birth. Rather than stemming from the 14th Amendment, one of several specific laws passed by the U.S. Congress establishes that citizenship is conferred at birth in these territories. Specifically, U.S. citizenship is received at birth by individuals born in Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

Which U.S. territories do not confer U.S. citizenship at birth?

Those individuals born in American Samoa or Swains Island, which the Immigration and Nationality Act defines as “unincorporated outlying possessions,” do not receive citizenship at birth. (See INA section 308). Instead, these individuals are deemed “non-citizen U.S. nationals.” This means that they can travel to and work in the U.S. without a visa, and are protected by federal laws, including the Bill of Rights. However, they do not have the full rights of citizenship and cannot, for example, vote in federal elections. A non-citizen U.S. national does have the option of naturalizing and, through that process, becoming a U.S. citizen. (See INA section 1436).

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