Basic HTML Version

|  | Table of Contents |  | View Full Version

Page 38 - The Indian EYE 052926
P. 38

    IMMIGRATION                                                               MAY 29, 2026     |  The Indian Eye 38

                                  The Diplomatic Exception to

               Birthright Citizenship: Paths to Permanent

                                Residence and Naturalization

            BY CYRUS D MEHTA AND DAMIRA    Birthright   citizenship  risdiction as well. Because they   nity,  fall  within  the  regulatory   birth, not the approval date. The
            ZHANATOVA*                 comes from the Fourteenth   are not fully subject to U.S. law,   definition of “foreign diplomat-  adjudication does not involve
                                       Amendment, which grants cit-  their U.S.-born children are not   ic officer” for this purpose. Not   the usual admissibility analysis
                  ne  of the  most misun-  izenship to those “born or nat-  considered “subject to the ju-  all  A  or  G  nonimmigrants  are   or discretionary balancing that
                  derstood areas of U.S.   uralized in the United States,   risdiction” of the United States   on the Blue List or have full   apply in many other adjustment
            Oimmigration law is the    and subject to the jurisdiction   and therefore do not acquire cit-  immunity.  Many  consular  offi-  cases. Instead, the focus is on
            treatment of children born in   thereof.”  The  phrase  “subject   izenship at birth.  cers and staff, for example, have   whether  the  specific  eligibility
            the United States to foreign   to  the  jurisdiction thereof” is   This  legal  framework  is   more limited protections and   criteria in the regulations are
            diplomats. Most people assume   crucial. The Supreme Court has   implemented through the reg-  are not on the Blue List. Their   met.
            that anyone born on U.S. soil is   long  held  that  this  clause  ex-  ulations at 8 CFR 101.3 and   U.S.-born children are generally   From there, the path to cit-
            automatically a U.S. citizen. In   cludes only a few narrow groups,   8 CFR 264.2, as well as the cor-  citizens at birth because those   izenship is the same as for oth-
            reality, the Fourteenth Amend-  including children of foreign   responding guidance in the US-  parents are treated as subject to   er permanent residents. Once
            ment and federal regulations   diplomats and children born to   CIS Policy Manual. Under these   U.S. jurisdiction.  USCIS approves the I-485, the
            carve out a narrow exception for   enemy forces in hostile occupa-  authorities, a child born in the   For someone who does fall   person is an LPR effective from
            children born to certain accred-  tion. Accredited diplomats are   United States to a foreign dip-  under the diplomatic exception,   their  date  of  birth.  When  they
            ited diplomats. These children   treated under international law   lomatic officer accredited by the   immigration law provides a clear   satisfy the statutory naturaliza-
            are generally not U.S. citizens   as remaining under the jurisdic-  Department of State may volun-  path. A child born in the Unit-  tion requirements, they may file
            at birth, but they have a unique,   tion of their own governments   tarily register to be treated as a   ed States to a qualifying foreign   Form  N-400 to  become a citi-
            voluntary path to lawful perma-  rather than the United States.   lawful permanent resident from   diplomatic  officer  is  not  auto-  zen. Because their LPR date is
            nent residence (a green card)   The State Department’s Foreign   birth. Because such a child was   matically a citizen, but under   deemed to be their date of birth,
            that is effective from birth and,   Affairs  Manual  explains  that   not born “subject to the jurisdic-  8 CFR 101.3 the child may be   most will already meet the resi-
            from there, to U.S. citizenship.   diplomatic agents are immune   tion of the United States,” they   “considered a lawful permanent   dence-duration requirement at
            When that framework is ignored   from U.S. criminal jurisdiction   do not gain citizenship under the   resident at birth” if a record of   the time they register, as long as
            or mishandled, the consequenc-  and,  with  limited  exceptions,   Fourteenth Amendment, but   permanent residence is properly   they  have  maintained  the  resi-
            es can be deeply disruptive.  from civil and administrative ju-  they can choose to be considered   created under 8 CFR 264.2. This   dence and presence required by
                                                                      a permanent resident as of   status is not conferred automat-  the naturalization laws.
                                                                      their date of birth. This reg-  ically. The person must submit a   Despite this clear regula-
                                                                      istration is voluntary and   Form I-485 application to create   tory framework, the diplomatic
                                                                      requires an application. It is   that record. USCIS guidance ex-  exception  is  often  missed  for
                                                                      not automatic.          plains that this process allows a   years. Local vital records offices
                                                                          The diplomatic excep-  U.S.-born child of an accredited   issue standard U.S. birth certif-
                                                                      tion itself is narrow and   foreign diplomatic officer to vol-  icates to everyone born in their
                                                                      depends on the parents’   untarily register permanent resi-  jurisdiction, including children
                                                                      exact legal status when the   dent status, retroactive to birth.  of diplomats. Those certificates
                                                                      child was born. It covers   To do that, the child (or a   do not reflect the parents’ diplo-
                                                                      foreign sovereigns on of-  parent, if the child is under 18)   matic status, and local staff gen-
                                                                      ficial  visits  and  accredited   files  Form  I-485  with  the  fee,   erally do not investigate whether
                                                                      diplomatic  officials  such   supported by a U.S. birth certifi-  a parent is a foreign diplomatic
                                                                      as ambassadors, ministers,   cate, a list of all U.S. entries and   representative. On the basis of
                                                                      chargés d’affaires, counsel-  exits,  proof  of  continuous  resi-  that birth certificate, many chil-
                                                                      ors, agents and secretaries   dence, two passport photos, and   dren of diplomats obtain Social
                                                                      of embassies, and attachés   official confirmation that at least   Security numbers, U.S. pass-
                                                                      and other staff attached to   one parent was a Blue List diplo-  ports, and driver’s licenses, and
                                                                      an embassy. It also reach-  matic officer at the time of birth,   may even register to vote and
                                                                      es people with comparable   including that parent’s classifica-  be called on for jury duty. To
                                                                      diplomatic status and im-  tion and title. The applicant also   agencies and institutions, these
                                                                      munities who are assigned   submits Form I-566 (showing A   individuals appear indistinguish-
                                                                      to the United Nations or   or G status history) and Form   able from U.S. citizens. Yet if
                         m of                                         the Organization of Amer-  I-508 to waive any diplomatic   their parents held full Blue List
              CYRUS D. MEHTA & PARTNERS PLLC                          ican States, or who oth-  rights and immunities, since law-  diplomatic status at the time of
                                                                      erwise hold comparable   ful permanent residents must   their birth, they may never have

                 status under international   be fully subject to U.S. law. US-  acquired citizenship under the
                                                                      agreements. In practice,   CIS  then  confirms  the  parent’s   Fourteenth Amendment. This

                                the key question is whether   diplomatic status with  the  De-  discrepancy often comes to light

                                                                       the parent’s accredited title   partment of State. If all require-  only  when  they  apply  for,  or
                                                                      appeared on the State De-  ments are met, the application is   attempt to renew, a U.S. pass-
                                                                      partment’s Diplomatic List,   approved, the person is classified   port, or when a more detailed
                                                                      known as the Blue List, at   as DS1 (Born Under Diplomatic   status review prompts a closer
                                                                      the time of the child’s birth.   Status in the United States), and   examination  of  their  parents’
              2              6th Floor                                Only Blue List officers, who   permanent residence is treated   diplomatic history and Blue List

                                                                      enjoy full diplomatic immu-  as having begun on the date of   records.

                                                                   www.TheIndianEYE.com

| 33 34 35 36 37 38 39 40 41 42 43 |