Puerto Rico’s options for non-territorial status under the U.S. Constitution boil down to two possibilities:
Puerto Rico can continue as a territory belonging to the United States indefinitely, but there really are no other choices.
One possibility for a new nation of Puerto Rico would be independence with Free Association. Those who favor this choice often claim that Puerto Ricans could keep U.S. citizenship as a Free Associated State (FAS).
Is this true?
No FAS now has U.S. citizenship
There are three nations in free association with the United States: the Republic of the Marshall Islands (RMI), Palau and the Federated States of Micronesia.
None of these places has U.S. citizenship for its residents. U.S. citizenship simply isn’t part of a Compact of Free Association.
As a former lead U.S. counsel involved in FAS negotiations put it, free association is an alliance between two separate nations, not an arrangement with “blended sovereignty and common nationality.”
Proponents of free associated status for Puerto Rico claim that they could negotiate U.S. citizenship as part of the Compact of Free Association. However, this has never been done, and representatives of the federal government have repeatedly said that it could not be accomplished.
For example, Assistant U.S. Attorney General Robert Raben said, “If Puerto Rico is to become an independent nation, then, while Congress may well have the power to provide…that persons born in Puerto Rico in the future shall acquire United States citizenship, we think Congress could also change that rule and provide that, in the future, birth in Puerto Rico shall no longer be a basis for United States citizenship.”
Attorney General Richard Thornburgh said, “If Puerto Rico becomes politically independent, its residents would have to choose between U.S. citizenship and the citizenship of the new republic. If Puerto Ricans choose a free association with the United States, U.S. citizenship could not be guaranteed together with Puerto Rico citizenship.”
There are many more examples.
What about dual citizenship?
While the U.S.doesn’t have any agreements with any other nations about dual citizenship, it is possible to become an American citizen without renouncing citizenship from another country. Some countries (for example, China and India) will automatically end citizenship for any citizen of their nation who becomes a citizen of another country, but the United States does not have this rule.
So if we imagine an independent Republic of Puerto Rico, a citizen of Puerto Rico could apply for U.S. citizenship and have dual citizenship as long as Puerto Rico allowed it.
Becoming a U.S. citizen
Our imaginary citizen of the Republic of Puerto Rico would need to become a Permanent Resident of the U.S., live in the United States for five years, pay a filing fee of $725 plus any legal costs for assistance in filling out the application forms, file the forms, take tests on English and U.S. history, go through one or more interviews, and wait for a decision on the application.
The process can take years after the forms are filed. Travel to an office in a distant city may be required for the interviews. The fees are not refundable.
Note that citizenship requires residence in a State. No individual living in the Republic of Puerto Rico could apply for citizenship.
How about a special deal?
A hypothetical Free Association arrangement between Puerto Rico and the U.S. is premised on special – some would say mythical or fantasy – deals.
Consider a case where there actually is a special deal between the United States and a group of non-citizens: Deferred Action for Childhood Arrivals (DACA). More than 700,000 residents of the States who were brought into the country illegally when they were children are currently covered by the DACA program.
They are able to get work authorization and to have actions like deportation deferred — that is, put off until the future. However, the DACA program does not allow participants to become legal residents or citizens of the United States.
Even though these individuals, whose average age is just 22, do not remember any home before the United States and the great majority of Americans favor a pathway to citizenship for them, they cannot become citizens in the United States. Most are working or in school in the United States, and their families usually live in the United States. Many do not speak the language of their country of origin and they do not have jobs or homes in those countries.
To become citizens, they must return to the country where they were born and there apply for a visa to enter the United States, and then go through the process described above. The Biden administration has been trying to forge a pathway to citizenship for DACA participants, but has not so far been successful doing so.
Puerto Rican leaders who favor Free Association often speak of the need for “political will,” implying that willingness on the part of the federal government could make it possible for Puerto Rico to maintain U.S. citizenship (and many other benefits) without being either a territory or a state. The experience of DACA shows that this is unrealistic.
U.S. citizenship is not easy to get
If Puerto Rico became an independent nation, with or without a Compact of Free Association, U.S. citizenship would sooner or later not be part of the deal. If the new Republic of Puerto Rico were able to negotiate U.S. citizenship, it would not be guaranteed for the future. Congress could take it away at any time.
Claims of guaranteed U.S. citizenship without statehood or territorial status cannot be supported by the facts.