§ 1409. Children born out of wedlock

Statutory text

The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408 of this title, shall apply as of the date of birth to a person born out of wedlock if—

a blood relationship between the person and the father is established by clear and convincing evidence,

the father had the nationality of the United States at the time of the person’s birth,

the father (unless deceased) has agreed in writing to provide financial support for the person until the person reaches the age of 18 years, and

while the person is under the age of 18 years—

the person is legitimated under the law of the person’s residence or domicile,

the father acknowledges paternity of the person in writing under oath, or

the paternity of the person is established by adjudication of a competent court.

Except as otherwise provided in section 405 of this Act, the provisions of section 1401(g) of this title shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.

Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1952
Pub. L. 82–477 · 66 Stat. 609
Enacted · 8 U.S.C. § 1409
June 27, 1952, ch. 477, title III, ch. 1, § 309, 66 Stat. 238
Source evidence
Code source credit
June 27, 1952, ch. 477, title III, ch. 1, § 309, 66 Stat. 238
1981
Immigration and Nationality Act Amendments of 1981
Pub. L. 97–116 § 18 · 95 Stat. 1611
Substituted · 8 U.S.C. § 1409(a)
Pub. L. 97–116, § 18(l)(1), substituted “(c), (d), (e), and (g) of section 1401” for “(3) to (5) and (7) of section 1401(a)”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 97–116, § 18(l)(1), substituted “(c), (d), (e), and (g) of section 1401” for “(3) to (5) and (7) of section 1401(a)”.
Enacted provision · exact public law section
Sec. 18. (a) Section 101 (8 U.S.C. 1101) is amended— (1) by striking out “Office of Education of the United States” in subsection (a)(15)(F) and inserting in lieu thereof “Secretary of Education”; (2) by striking out the period at the end of each of subparagraphs (H), (J), and (K) of subsection (a)(15) and inserting in lieu thereof a semicolon; (3) by striking out the period at the end of subparagraph (L) of subsection (a)(15) and inserting in lieu thereof “; or”; (4) by striking out the second sentence of subsection (a)(33); and (5) (A) by striking out “or” at the end of subparagraphs (A) and (B) of subsection (b)(1), (B) by striking out the period at the end of subparagraph (C) of such subsection and inserting in lieu thereof a semicolon, and (C) by striking out the period at the end of subparagraph (E) of such subsection and inserting in lieu thereof “; or”. (b) Section 106(a)(1) (8 U.S.C. 1105a(a)(1)) is amended by striking out the period at the end and inserting in lieu thereof a semicolon. (c) Section 202(b) (8 U.S.C. 1152(b)) is amended by inserting “and” before “(4)”. (d) Section 204(a) (8 U.S.C. 1154(a)) is amended by striking out “of the relationships described in paragraphs” and inserting in lieu thereof “of a relationship described in paragraph”. (e) Section 212 (8 U.S.C. 1182) is amended— (1) by inserting “)” in subsection (a)(32) after “is in the United States”, and (2) by adding at the end the following new subsection: “(k) Any alien, excludable from the United States under paragraph (14), (20), or (21) of subsection (a), who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.”. (f) Section 221(a) (8 U.S.C. 1201(a)) is amended by striking out the period after “is charged” and inserting in lieu thereof a comma. (g) Section 231(d) (8 U.S.C. 1221(d)) is amended by striking out “subsections” and inserting in lieu thereof “subsection”. (h) (1) (A) The eleventh sentence of subsection (b) of section 242 (8 U.S.C. 1252) is amended by striking out “or (18)” and inserting in lieu thereof “(18), or (19)”. (B) Subsection (e) of such section is amended by striking out “or (18)” and inserting in lieu thereof “(18), or (19)”. (2) Subsection (a) of section 244 (8 U.S.C. 1254) is amended by inserting “(other than an alien described in section 241(a)(19))” after “in the case of an alien” in the matter before paragraph (1). (i) The fourth sentence of section 243(a) (8 U.S.C. 1253(a)) is amended by inserting a comma after “subject”. (j) Section 244(d) (8 U.S.C. 1254(d)) is amended— (1) by striking out “nonpreference”, and (2) by striking out “203(a)(7)” and inserting in lieu thereof “201(a) or 202(a)”. (k) (1) Section 291 (8 U.S.C. 1361) is amended by striking out “quota immigrant, or nonquota immigrant” and inserting in lieu thereof “immigrant, special immigrant, immediate relative, or refugee”. (2) Section 349(a)(1) (8 U.S.C. 1481(a)(1)) is amended by striking out “nonquota immigrant” and inserting in lieu thereof “special immigrant”. (l) Section 309 (8 U.S.C. 1409) is amended— (1) by striking out “(3), (4), (5), and (7) of section 301(a)” in subsection (a) and inserting in lieu thereof “(c), (d), (e), and (g) of section 301”, and (2) by striking out “01(a)(7)” in subsection (b) and inserting in lieu thereof “301(g)”. (m) Sections 320(b), 321(b), and 322(b) (8 U.S.C. 1431(b), 1432(b), 1433(b)) are each amended by striking out “a child adopted while under the age of sixteen years who” and inserting in lieu thereof “an adopted child only if the child”. (n) Section 322 (8 U.S.C. 1433) is further amended by adding after subsection (b) the following new subsection: “(c) In the case of an adopted child (1) who is in the United States at the time of naturalization, and (2) one of whose adoptive parents (A) petitions for naturalization of the child under this section, (B) meets the criteria of clauses (A), (B), and (C) of section 319(b)(1), and (C) 8 USC 1430. declares before the naturalization court in good faith an intention to take up residence within the United States immediately upon the termination of the employment described in section 319(b)(1)(B), no specified period of residence within the jurisdiction of the naturalization court or proof thereof shall be required.”. (o) The fourth sentence of section 337(a) (8 U.S.C. 1448(a)) is amended by striking out “or 323”. (p) Section 341 (8 U.S.C. 1452) is amended by striking out “(3), (4), (5), or (7) of section 301(a)” and inserting in lieu thereof “(c), (d), (e), or (g) of section 301”. (q) Section 349 (8 U.S.C. 1481), as amended by section 4 of Public Law 95–432, is amended by striking out the second “(a)” after “349.”. (r) Section 351 (8 U.S.C. 1483) is amended— (1) by striking out “paragraphs (7), (8), and (9) of section 349” in subsection (a) and inserting in lieu thereof “paragraphs (6) and (7) of section 349(a)”, and (2) by striking out “(5), and (6)” in subsection (b) and inserting in lieu thereof “and (5)”. (s) Section 404 (8 U.S.C. 1101 note) is amended by inserting “(other than chapter 2 of title IV)” after “this Act”. (t) The table of contents is amended by striking out the items relating to sections 345, 350, 352, 353, 354, and 355. (u) (1) Section 1429 of title 18, United States Code, is amended by striking out “subsection (e)” and inserting in lieu thereof “subsection (d)”. (2) The Act of March 16, 1956 (8 U.S.C 1401a) is amended by striking out “301(a)(7)” and inserting in lieu thereof “301(g.)”.
1981
Immigration and Nationality Act Amendments of 1981
Pub. L. 97–116 § 18 · 95 Stat. 1611
Substituted · 8 U.S.C. § 1409(b)
Pub. L. 97–116, § 18(l)(2), substituted “section 1401(g)” for “section 1401(a)(7)”
Source evidence
Code amendment note
Subsec. (b). Pub. L. 97–116, § 18(l)(2), substituted “section 1401(g)” for “section 1401(a)(7)”.
Enacted provision · exact public law section
Sec. 18. (a) Section 101 (8 U.S.C. 1101) is amended— (1) by striking out “Office of Education of the United States” in subsection (a)(15)(F) and inserting in lieu thereof “Secretary of Education”; (2) by striking out the period at the end of each of subparagraphs (H), (J), and (K) of subsection (a)(15) and inserting in lieu thereof a semicolon; (3) by striking out the period at the end of subparagraph (L) of subsection (a)(15) and inserting in lieu thereof “; or”; (4) by striking out the second sentence of subsection (a)(33); and (5) (A) by striking out “or” at the end of subparagraphs (A) and (B) of subsection (b)(1), (B) by striking out the period at the end of subparagraph (C) of such subsection and inserting in lieu thereof a semicolon, and (C) by striking out the period at the end of subparagraph (E) of such subsection and inserting in lieu thereof “; or”. (b) Section 106(a)(1) (8 U.S.C. 1105a(a)(1)) is amended by striking out the period at the end and inserting in lieu thereof a semicolon. (c) Section 202(b) (8 U.S.C. 1152(b)) is amended by inserting “and” before “(4)”. (d) Section 204(a) (8 U.S.C. 1154(a)) is amended by striking out “of the relationships described in paragraphs” and inserting in lieu thereof “of a relationship described in paragraph”. (e) Section 212 (8 U.S.C. 1182) is amended— (1) by inserting “)” in subsection (a)(32) after “is in the United States”, and (2) by adding at the end the following new subsection: “(k) Any alien, excludable from the United States under paragraph (14), (20), or (21) of subsection (a), who is in possession of an immigrant visa may, if otherwise admissible, be admitted in the discretion of the Attorney General if the Attorney General is satisfied that exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.”. (f) Section 221(a) (8 U.S.C. 1201(a)) is amended by striking out the period after “is charged” and inserting in lieu thereof a comma. (g) Section 231(d) (8 U.S.C. 1221(d)) is amended by striking out “subsections” and inserting in lieu thereof “subsection”. (h) (1) (A) The eleventh sentence of subsection (b) of section 242 (8 U.S.C. 1252) is amended by striking out “or (18)” and inserting in lieu thereof “(18), or (19)”. (B) Subsection (e) of such section is amended by striking out “or (18)” and inserting in lieu thereof “(18), or (19)”. (2) Subsection (a) of section 244 (8 U.S.C. 1254) is amended by inserting “(other than an alien described in section 241(a)(19))” after “in the case of an alien” in the matter before paragraph (1). (i) The fourth sentence of section 243(a) (8 U.S.C. 1253(a)) is amended by inserting a comma after “subject”. (j) Section 244(d) (8 U.S.C. 1254(d)) is amended— (1) by striking out “nonpreference”, and (2) by striking out “203(a)(7)” and inserting in lieu thereof “201(a) or 202(a)”. (k) (1) Section 291 (8 U.S.C. 1361) is amended by striking out “quota immigrant, or nonquota immigrant” and inserting in lieu thereof “immigrant, special immigrant, immediate relative, or refugee”. (2) Section 349(a)(1) (8 U.S.C. 1481(a)(1)) is amended by striking out “nonquota immigrant” and inserting in lieu thereof “special immigrant”. (l) Section 309 (8 U.S.C. 1409) is amended— (1) by striking out “(3), (4), (5), and (7) of section 301(a)” in subsection (a) and inserting in lieu thereof “(c), (d), (e), and (g) of section 301”, and (2) by striking out “01(a)(7)” in subsection (b) and inserting in lieu thereof “301(g)”. (m) Sections 320(b), 321(b), and 322(b) (8 U.S.C. 1431(b), 1432(b), 1433(b)) are each amended by striking out “a child adopted while under the age of sixteen years who” and inserting in lieu thereof “an adopted child only if the child”. (n) Section 322 (8 U.S.C. 1433) is further amended by adding after subsection (b) the following new subsection: “(c) In the case of an adopted child (1) who is in the United States at the time of naturalization, and (2) one of whose adoptive parents (A) petitions for naturalization of the child under this section, (B) meets the criteria of clauses (A), (B), and (C) of section 319(b)(1), and (C) 8 USC 1430. declares before the naturalization court in good faith an intention to take up residence within the United States immediately upon the termination of the employment described in section 319(b)(1)(B), no specified period of residence within the jurisdiction of the naturalization court or proof thereof shall be required.”. (o) The fourth sentence of section 337(a) (8 U.S.C. 1448(a)) is amended by striking out “or 323”. (p) Section 341 (8 U.S.C. 1452) is amended by striking out “(3), (4), (5), or (7) of section 301(a)” and inserting in lieu thereof “(c), (d), (e), or (g) of section 301”. (q) Section 349 (8 U.S.C. 1481), as amended by section 4 of Public Law 95–432, is amended by striking out the second “(a)” after “349.”. (r) Section 351 (8 U.S.C. 1483) is amended— (1) by striking out “paragraphs (7), (8), and (9) of section 349” in subsection (a) and inserting in lieu thereof “paragraphs (6) and (7) of section 349(a)”, and (2) by striking out “(5), and (6)” in subsection (b) and inserting in lieu thereof “and (5)”. (s) Section 404 (8 U.S.C. 1101 note) is amended by inserting “(other than chapter 2 of title IV)” after “this Act”. (t) The table of contents is amended by striking out the items relating to sections 345, 350, 352, 353, 354, and 355. (u) (1) Section 1429 of title 18, United States Code, is amended by striking out “subsection (e)” and inserting in lieu thereof “subsection (d)”. (2) The Act of March 16, 1956 (8 U.S.C 1401a) is amended by striking out “301(a)(7)” and inserting in lieu thereof “301(g.)”.
1986
Immigration and Nationality Act Amendments of 1986
Pub. L. 99–653 § 13 · 100 Stat. 3655
1. Amended · 8 U.S.C. § 1409(a)
  Pub. L. 99–653, as amended by Pub. L. 100–525, § 8(k)
2. Amended · 8 U.S.C. § 1409(a)
  Pub. L. 99–653, as amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408, of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this chapter, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 99–653, as amended by Pub. L. 100–525, § 8(k), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408, of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this chapter, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.”
Enacted provision · exact public law section
Sec. 13. Subsection (a) of section 309 (8 U.S.C. 1409) is amended— (a) by striking out “paragraphs (3), (4), (5), and (7) of section 301(a)” and inserting in lieu Children and youth. thereof “paragraphs (c), (d), (e), and (g) of section 301”; and (b) by striking out all after “wedlock”, and inserting in lieu and thereof “if a blood relationship between the child and the father is established by clear and convincing evidence, provided the father had the nationality of the United States at the time of the child’s birth, the father unless deceased has agreed in writing to provide financial support for the child until such child reaches the age of eighteen years and if, while such child is under the age of eighteen years, (1) such child is legitimated under the law of the child’s residence or domicile, or (2) the father acknowledges paternity of the child in writing under oath, or (3) paternity of the child is established by adjudication of a competent court.”.
Effective date note
Amendment by section 8(k) of Pub. L. 100–525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653, see section 309(b)(15) of Pub. L. 102–232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.
1988
Immigration Technical Corrections Act of 1988
Pub. L. 100–525 § 8(k) · 102 Stat. 2609
Amended · 8 U.S.C. § 1409(a)
Pub. L. 100–525, § 8(k), amended Pub. L. 99–653. See 1986 Amendment note below
Source evidence
Code amendment note
Subsec. (a). Pub. L. 100–525, § 8(k), amended Pub. L. 99–653. See 1986 Amendment note below.
Enacted provision · exact public law section
(8) In subsection (e)(1)(A)(ii), strike the first comma.
Effective date note
Amendment by section 8(k) of Pub. L. 100–525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653, see section 309(b)(15) of Pub. L. 102–232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.
1988
Immigration Technical Corrections Act of 1988
Pub. L. 100–525 § 9(r)(1) · 102 Stat. 2609
1. Substituted · 8 U.S.C. § 1409(b)
  Pub. L. 100–525, § 9(r)(1), substituted “before December 24, 1952” for “prior to the effective date of this chapter”
2. Substituted · 8 U.S.C. § 1409(b)
  Pub. L. 100–525, § 9(r)(1), substituted “at any time” for “before or after the effective date of this chapter and”
Source evidence
Code amendment note
Subsec. (b). Pub. L. 100–525, § 9(r)(1), substituted “before December 24, 1952” for “prior to the effective date of this chapter” and “at any time” for “before or after the effective date of this chapter and”.
Enacted provision · exact public law section
(1) in subsection (b)— (A) by striking “prior to the effective date of this Act” and inserting “before December 24, 1952”, and (B) by striking “before or after the effective date of this Act and” and inserting “at any time”; and
Effective date note
Amendment by section 8(k) of Pub. L. 100–525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653, see section 309(b)(15) of Pub. L. 102–232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.
1988
Immigration Technical Corrections Act of 1988
Pub. L. 100–525 § 9(r)(2) · 102 Stat. 2609
Substituted · 8 U.S.C. § 1409(c)
Pub. L. 100–525, § 9(r)(2), substituted “after December 23, 1952” for “on or after the effective date of this chapter”
Source evidence
Code amendment note
Subsec. (c). Pub. L. 100–525, § 9(r)(2), substituted “after December 23, 1952” for “on or after the effective date of this chapter”.
Enacted provision · exact public law section
(2) in subsection (c), by striking “on or after the effective date of this Act” and inserting “after December 23, 1952”.
Effective date note
Amendment by section 8(k) of Pub. L. 100–525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653, see section 309(b)(15) of Pub. L. 102–232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.

8 of 9 references resolved to an enrolled provision · 1 partial

Editorial Notes

References in Text

Section 405 of this Act, referred to in subsec. (b), is section 405 of act June 27, 1952, ch. 477, title IV, 66 Stat. 280, which is set out as a Savings Clause note under section 1101 of this title.

Constitutionality

For information regarding constitutionality of certain provisions of this section, see note under section 1401 of this title.

Amendments1981–1988 · 3 rounds

1988

Subsec. (a). Pub. L. 100–525, § 8(k), amended Pub. L. 99–653. See 1986 Amendment note below.

Subsec. (b). Pub. L. 100–525, § 9(r)(1), substituted “before December 24, 1952” for “prior to the effective date of this chapter” and “at any time” for “before or after the effective date of this chapter and”.

Subsec. (c). Pub. L. 100–525, § 9(r)(2), substituted “after December 23, 1952” for “on or after the effective date of this chapter”.

1986

Subsec. (a). Pub. L. 99–653, as amended by Pub. L. 100–525, § 8(k), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “The provisions of paragraphs (c), (d), (e), and (g) of section 1401 of this title, and of paragraph (2) of section 1408, of this title shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this chapter, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.”

1981

Subsec. (a). Pub. L. 97–116, § 18(l)(1), substituted “(c), (d), (e), and (g) of section 1401” for “(3) to (5) and (7) of section 1401(a)”.

Subsec. (b). Pub. L. 97–116, § 18(l)(2), substituted “section 1401(g)” for “section 1401(a)(7)”.

Statutory Notes and Related Subsidiaries

Effective Date of 1988 Amendment

Amendment by section 8(k) of Pub. L. 100–525 effective as if included in the enactment of the Immigration and Nationality Act Amendments of 1986, Pub. L. 99–653, see section 309(b)(15) of Pub. L. 102–232, set out as an Effective and Termination Dates of 1988 Amendments note under section 1101 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–653, § 23(e), as added by Pub. L. 100–525, § 8(r), Oct. 24, 1988, 102 Stat. 2619, provided that:

“(1)
Except as provided in paragraph (2)(B), the new section 309(a) [8 U.S.C. 1409(a)] (as defined in paragraph (4)(A)) shall apply to persons who have not attained 18 years of age as of the date of the enactment of this Act [Nov. 14, 1986].
#
“(2)
The old section 309(a) shall apply—
“(A)
to any individual who has attained 18 years of age as of the date of the enactment of this Act, and
#
“(B)
any individual with respect to whom paternity was established by legitimation before such date.
#
#
“(3)
An individual who is at least 15 years of age, but under 18 years of age, as of the date of the enactment of this Act, may elect to have the old section 309(a) apply to the individual instead of the new section 309(a).
#
“(4)
In this subsection:
“(A)
The term ‘new section 309(a)’ means section 309(a) of the Immigration and Nationality Act [8 U.S.C. 1409(a)], as amended by section 13 of this Act [section 13 of Pub. L. 99–653] and as in effect after the date of the enactment of this Act.
#
“(B)
The term ‘old section 309(a)’ means section 309(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act.”
#
#

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–116 effective Dec. 29, 1981, see section 21(a) of Pub. L. 97–116, set out as a note under section 1101 of this title.

Credits

1952–1988 · 4 acts

1952June 27, 1952, ch. 477, title III, ch. 1, § 309, 66 Stat. 238
1981Pub. L. 97–116, § 18(l), Dec. 29, 1981, 95 Stat. 1620
1986Pub. L. 99–653, § 13, Nov. 14, 1986, 100 Stat. 3657
1988Pub. L. 100–525, §§ 8(k), 9(r), Oct. 24, 1988, 102 Stat. 2617, 2621.

Show as published

(June 27, 1952, ch. 477, title III, ch. 1, § 309, 66 Stat. 238; Pub. L. 97–116, § 18(l), Dec. 29, 1981, 95 Stat. 1620; Pub. L. 99–653, § 13, Nov. 14, 1986, 100 Stat. 3657; Pub. L. 100–525, §§ 8(k), 9(r), Oct. 24, 1988, 102 Stat. 2617, 2621.)