When can an immigrant claim US nationality?

Question

Inspired by this question over at EL&U.

In my research for a response that question (which I never posted), I found this article in the Economist, which includes this paragraph:

In general, to be a national is to be a member of a state. Nationality is acquired by birth or adoption, marriage, or descent (the specifics vary from country to country). Having a nationality is crucial for receiving full recognition under international law. Indeed, Article 15 of the Universal Declaration of Human Rights declares that “Everyone has the right to a nationality” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality” but is silent on citizenship. Citizenship is a narrower concept: it is a specific legal relationship between a state and a person. It gives that person certain rights and responsibilities. It does not have to accompany nationality. In some Latin American countries, for example, such as Mexico, a person acquires nationality at birth but receives citizenship only upon turning 18: Mexican children, therefore, are nationals but not citizens.

I was born in the US, so I am a US citizen and a US national. At what stage of the immigration process can an immigrant to the US truthfully and legally declare the US as their nationality?

(Limiting this to the US since different countries handle citizenship and nationality differently.)

Answer 1

When the person has been naturalised, that is, when the US government officially recognises them as a US citizen.

There are many pathways to citizenship and the ones on the linked page are pretty typical across the world although the details vary:

• residence for a period with or without marriage to a citizen
• service
• descent.

Answer 2

The Immigration and Nationality Act doesn't seem to give any way for a non-US-national to become a non-citizen US national. A non-US-national can only obtain US nationality by obtaining US citizenship at the same time -- via naturalization (whether automatic or through a process). The only ways to become a non-citizen US national seem to be 1) at birth, either by birth in American Samoa or Swains Island (or possibly other minor US islands which don't have birthright citizenship), or by birth abroad to a parent who is a non-citizen US national, or 2) by being a Northern Mariana Islander who automatically became a US citizen when the Northern Mariana Islands joined the US, who exercised their option to become a non-citizen US national instead, within 6 months of the effective date of their citizenship or within 6 months of turning 18.

However, there is some conflicted case law on the question of whether an immigrant who has applied for naturalization could be considered a US national before they become a US citizen. In United States v. Morin (1996), the defendant challenged his conviction for a murder outside the US, where the conviction depended on a statute about killing a national of the US, and the victim was a permanent resident who was in the process of naturalization; the 4th Circuit ruled that the victim was a US national, as he had applied for naturalization and that was evidence of his permanent allegiance to the US. However, in Fernandez v. Keisler (2007), the same 4th Circuit agreed with a BIA ruling that nationality could only be acquired by birth or naturalization. In page 9 of this booklet, it lists many other cases relating to the argument that a deportee is a non-citizen national, and most of them seem to say that merely applying for naturalization is not enough to become a US national.

Answer 3

Under US law (8 USC 1101), "national" means a person owing permanent allegiance to a state, and "national of the United States" means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States. 8 USC Part I defines the conditions for nationality at birth and via collective naturalization (e.g. foreign-born children with a US citizen parent in the military between 1946 and 1952). Part II covers individual naturalization.

8 USC 1408 specifies who is a national but not a citizen at birth: for example, one born in an outlying possession of the US (American Samoa). Anyone born in American Samoa since US acquisition of the territory can claim nationality, and there are other circumstances describe there giving rise to US nationality. There is also a provision under 8 USC 1409 where a child born after December 23, 1952 out of wedlock gains US nationality if the mother had US nationality (not citizenship). Other parts of the code assign citizenship at birth, for example, Danish citizens residing in the Virgin Islands on January 17, 1917 and remaining there or in the US or Puerto Rico for a bit over a decade, who didn't preserve their Danish citizenship (...).

American Samoans can immigrate to the US and they can become US citizens; once naturalized they become citizens. Before that, they have US nationality but American Samoan citizenship.

Answer 4

In at least one case, a judge has found that someone admitted for permanent residence had "demonstrated his allegiance" and was therefore a national of the US, but this was ultimately overturned on appeal.

The case is Lee v. Ashcroft. I cannot find the second circuit decisions online, but the case is mentioned in the NYU law review (page 8).