Children born in the U.S. to a “foreign diplomatic officer” are one of the few categories of individuals born in the U.S. who do not receive U.S. citizenship at birth. As detailed in this earlier post, they may, however, register as lawful permanent residents and acquire a green card. One of the requirements to do so is to maintain continuous residence in the U.S. since birth. What does it mean to maintain continuous residence, and how is this different from maintaining physical presence?
Background on the status of children born in the U.S. to foreign diplomatic officers, and how they might register as lawful permanent residents.
As described in this earlier post, children born in the U.S. to a “foreign diplomatic officer” are one of the few categories of individuals born in the U.S. who do not receive U.S. citizenship at birth. In order for the child of a foreign diplomatic officer to register as a lawful permanent resident, the child must meet the following requirements:
First, the child must have been born in the U.S. to a parent who, at the time of the child’s birth, was listed on the Department of State’s Blue List. To learn how to confirm whether a parent appeared on the Blue List in a specific year, see our earlier post here. Additionally, to register as a lawful permanent resident, the child must be physically present in the U.S. at the time they apply to register. Furthermore, the child must have waived their diplomatic immunity (which is typically done by filing the Form I-508, as detailed in our earlier post here). Finally, the child must have maintained continuous residence in the U.S. since birth.
This post will focus on this final requirement: the requirement that the child show continuous residence in the United States since birth.
What is continuous residence, and how does it differ from continuous presence?
It is important to clarify, at the start, that continuous residence is not the same as continuous presence. Whereas continuous presence refers to the person him- or herself actually being physically present within the U.S., an individual can maintain residence in the United States even if he or she spends years physically outside the country. This is because residence refers to where the person’s primary home – or “principal actual dwelling place” – is.
As an example, if the child’s parents remain accredited diplomats in the U.S., the child can spend a significant amount of time outside the U.S. – even for more than a year – attending school in their parents’ country of citizenship. This physical absence from the U.S. would not necessarily be a violation of the continuous residence requirement.
What evidence might the child provide to show continuous residence in the U.S.?
Since a diplomat parent can show that they maintained residence by remaining accredited diplomats, this is often the first piece of evidence that the child can provide to show continuous residence. In addition to providing documentation showing the parent’s accreditation as a diplomat, the child would also typically provide school records showing that they attended school in the U.S.
What other aspects of the continuous residence requirement apply to children of diplomats?
There are several guidelines published by USCIS that specifically apply to the children of diplomats. First, as noted above, an extended absence from the U.S. does not necessarily violate the continuous residence requirement if the diplomat parent remained accredited to the U.S. while the child was outside the U.S.
Second, the child will not be deemed to have abandoned continuous residence in the U.S. simply by leaving the country and being readmitted in A or G status (which are generally reserved for diplomats and those traveling with them).
Finally, if the child’s diplomat parent leaves the U.S., the child can maintain continuous residence in the U.S. by remaining in the United States. However, if the child permanently departs with his or her parent, continuous residence would end at that point.
The controlling case on this topic is Nikoi v. Attorney General of the United States, a 1991 case decided in the D.C. Circuit Court of Appeals. In Nikoi, three children born in the U.S. to diplomats departed the U.S. between the ages of two and eight years. They returned to the U.S. to attend college between eleven and sixteen years later. The court agreed with the government that the children, by departing and not returning for a substantial length of time, had “evidenced an intention to abandon their residence in the United States.” As a result, they failed to maintain continuous residence. It is this same question of whether a child evidenced an intention to abandon their residence in the U.S. that will be applied when analyzing whether a child of a diplomat has maintained continuous residence in spite of their having physically departed the U.S.
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