In general, an individual born outside the United States to parents both of whom are U.S.
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citizens and at least one of whom has had a residence in the United States is a U.S. citizen. 8 U.S.C.
§ 1401(c). An individual born outside the United States on or after November 14, 1986 to one U.S.
citizen parent and one non-citizen parent is a U.S. citizen if the citizen-parent was physically present
in the United States for periods totaling at least five years, at least two of which were after attaining
the age of 14. 8 U.S.C. § 1401(g). With respect to individuals born prior to November 14, 1986,
to one U.S. citizen parent, the physical presence test for the citizen-parent is ten years with at least
five being after attaining the age of 14. An individual born in the United States and subject to the
jurisdiction thereof is a United States citizen, regardless of the nationality or residency of his parents.
8 U.S.C. § 1401(a); see United States v. Wong Kim Ark, 169 U.S. 649 (1898) (holding that a child
of diplomats of a foreign state born in the United States was not a U.S. citizen because the child was
not subject to the jurisdiction of the United States).
Making use of a person’s knowledge of his or her citizenship status is not unprecedented: DOS
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has previously applied the concept of unawareness of U.S. citizenship in administering the U.S.
nationality laws. Prior to 1978, section 301(b) of the INA provided, in general, that a person born
outside the United States to one U.S. citizen parent was required to live in the United States for two
years between the ages of 14 and 28 in order to retain U.S. citizenship. If a person failed to meet this
requirement but proved to DOS that he or she was unaware of a potential claim to U.S. citizenship,
the person was held to have constructively complied with section 301(b) of the INA and was allowed
to retain U.S. citizenship.
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could include, for example, individuals born outside the United States who were not aware of the
identity, much less the U.S. citizenship status, of a biological parent. Although it is impossible to
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measure the number of unknowing citizens living abroad, it may be significant. IRS has received
numerous inquiries from executors of foreign estates who have concluded that the decedent
technically was a U.S. citizen but did not know it.
Equity may argue for granting some unknowing and restored U.S. citizens an exemption from
U.S. taxation. An individual claiming the benefit of this exemption should bear the burden of proving
that he or she had no knowledge of his or her U.S. citizenship during the period at issue. Because
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of the possibility of abuse, the criteria for lacking knowledge of U.S. citizenship should be strictly
construed. Relevant factors may include:
(i) absence of past statements to the U.S. government claiming citizenship (e.g., passport