I was born in the U.S. to a mother who was a diplomat, and a father on a student visa. Since my father was not a diplomat, am I a U.S. citizen by birth?
Background on birthright citizenship and children of diplomats
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 discussed in our earlier post here, while the U.S. Constitution has little to say about immigration, the 14th Amendment does state that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” A child born to a foreign diplomat on U.S. soil is, therefore, “born … in the United States,” but they are not “subject to the jurisdiction” of the United States. As a result, a child born in the U.S. to foreign diplomat parents is not a U.S. citizen at birth.
Of course, as described in this post, it is important as a first step to make sure that one of the parents does, in fact, qualify as a foreign diplomatic officer by, for example, being listed on the Blue List.
But what if only one of my parents was a foreign diplomatic officer?
The situation often arises that only one of the two parents was on the Blue List at the time of the child’s birth. Whether the child was born a U.S. citizen in this situation depends on whether the other, non-diplomat parent was a U.S. citizen or U.S. national at the child’s birth. (For more information on the definition of a U.S. national, as opposed to a U.S. citizen, see here).
If one of the child’s parents was a U.S. citizen or U.S. national at the time of the child’s birth, that parent is subject to the jurisdiction of the United States and, as a result, the child would also be subject to such jurisdiction. This means that a child born in the U.S. to a U.S. citizen or U.S. national would be born a U.S. citizen, even if the child’s other parent is a foreign diplomatic officer.
Neither of my parents was a U.S. citizen or U.S. national at the time of my birth. One of my parents was a foreign diplomatic officer, and the other was in the U.S. on a non-diplomatic visa (for example, a student visa). Was I then born a U.S. citizen?
No. If neither of the child’s parents is a U.S. citizen or U.S. national, only one parent must be a foreign diplomatic officer for the child to not be born subject to U.S. jurisdiction – and therefore to not be born a U.S. citizen. Family members who are part of the household of a foreign diplomatic officer (such as the diplomat’s spouse and children under the age of 21) generally have the same privileges and immunities as does the diplomat.
A case decided by the Board of Immigration Appeals (BIA) in 1972 illustrates this situation. In Matter of Chu, 14 I&N Dec. 241 (BIA 1972), the BIA considered a case in which a 26-year-old man was born in the United States to a father who had diplomatic status and a mother who did not. Neither parent was a U.S. citizen or U.S. national at the time of his birth. The father’s diplomatic status meant that the father, his wife, and his son were “exempted … from the jurisdiction of the United States.” As a result, the son was not born a U.S. citizen – instead, he was born a citizen of China and a lawful permanent resident of the United States.
Conclusion
A child born in the U.S. to a parent who is a foreign diplomatic officer listed on the Blue List does not receive U.S. citizenship unless the other parent is a U.S. citizen or U.S. national. This is the case even if the other parent is in the U.S. on a non-diplomatic visa. A child born in the U.S. to a foreign diplomatic officer is born a lawful permanent resident of the United States and may voluntarily register for a green card. To learn more about the process for a child born in the U.S. to a diplomat to register as a lawful permanent resident, please see our earlier post here.
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