In general, a child born in the US acquires US citizenship at birth. However, this general rule does not apply to a child born in the US to parents who have diplomatic status. This is because such parents are not considered to be under the jurisdiction of the United States and its laws.
However, the US Department of Homeland Security has established certain regulations that provide children born in the US to diplomats with status as a Lawful Permanent Resident ("LPR"). See DHS regulation 8 CFR 101.3. LPR status is not automatic. This is because, while under the age of 16, children are deemed to have the “immigration intent" of their parents. Diplomats do not have an intent to immigrate and, thus, neither do their children. Further, by definition and operation of international law, diplomats are not subject to the jurisdiction of the United States. This immunity from the laws of the United States also applies to the children of diplomats. Thus, to obtain status as an LPR, the child born in the US of diplomatic parents must file various immigration forms and petitions and such must be approved. In general, to obtain LPR status, a child born in the US to diplomat parents must:
- Actively seek and have an intent to obtain status as LPR
- Have continuous residency in the US from birth and
- Waive the diplomatic immunity granted by the status of their parents
Once approved, the LPR status is deemed to exist from the time of birth. With respect to residency, absence from the US for schooling, vacations and other travel will NOT cause a loss in continuous residency for the child. However, if the diplomat parents take their child out of the US and abandon their residence in the US, the child will be considered to have lost continuous residency and will not be eligible for LPR status.
A legal case that illustrates these rules is Nikoi v. Attorney General of the United States, 939 F.2d 1065 (D.C. Circuit 1991) That case involved three children born in the US to parents who were diplomats from Ghana in the 1960s. The children lived with their diplomat parents in New York City for a while, then lived in Washington, DC. All three children were born in the US.
In 1969, the parents were transferred to new government positions and moved back to Ghana, taking the children with them. The three children returned to the US at various times in the 1980s to attend universities. They believed that they were US citizens because they were born in the United States. However, they were informed that they were NOT US citizens because their parents were diplomats at the time of their respective births.
As a result, each child filed petitions and various documents seeking to obtain status as LPRs under DHS regulation 8 CFR 101.3. However, LPR status for each child was rejected and this was affirmed by the federal court.
In affirming, the court confirmed the general rule that a person born in the US of a diplomatic parent has a right to permanent resident status. That right begins when the child is born. But the court also confirmed the general rule that the right to permanent residence status is ONLY retained if the person complies with DHS regulations. In particular, the person must NOT have abandoned his/her residence in the United States. 8 C.F.R. § 101.3(d). As noted above, the facts in the Nikoi case showed that all three children left the US in 1969 and did not return again until, at minimum, 11 years later. That was a sufficiently long absence to demonstrate that the children had abandoned their residence in the US.
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