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Q: Citizenship through a child born in the USA ( Answered 5 out of 5 stars,   2 Comments )
Question  
Subject: Citizenship through a child born in the USA
Category: Relationships and Society > Law
Asked by: margouya-ga
List Price: $10.00
Posted: 01 Nov 2002 21:41 PST
Expires: 01 Dec 2002 21:41 PST
Question ID: 96160
I am a french citizen under a visa E2 who has been working in the USA
for 3 years. If my wife (french) and I decide to have a child in the
US, will that help us get a greencard/citizenship and how long does
the process last ? Also are we allowed to keep our french citizenship
in addition to our US citizenship (dual).
Answer  
Subject: Re: Citizenship through a child born in the USA
Answered By: sparky4ca-ga on 02 Nov 2002 00:18 PST
Rated:5 out of 5 stars
 
Hello, margouya-ga!

I will attempt to provide you with information and examples that will
answer your question.


First, for complete clarification:

From Citizenship
http://www.ins.gov/graphics/services/natz/citizen.htm
Immigration and Naturalization Services
"The 14th Amendment of the U.S. Constitution guarantees citizenship at
birth to almost all individuals born in the United States or in U.S.
jurisdictions, according to the principle of jus soli" (jus soli is
bright of birthplace)

So we know that your newborn child will in all likelihood be a US
citizen.

To confirm:

From the Immigration Law
http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-20/slb-8265?f=templates&fn=document-frame.htm#slb-act301
"INA: ACT 301 - NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH 

Sec. 301. [8 U.S.C. 1401] The following shall be nationals and
citizens of the United States at birth:

(a) a person born in the United States, and subject to the
jurisdiction thereof;"

We still need to know if your child will also have French citizenship.

From Dual Nationality
State Department Travel information
http://travel.state.gov/dualnationality.html
"The concept of dual nationality means that a person is a citizen of
two countries at the same time. Each country has its own citizenship
laws based on its own policy.Persons may have dual nationality by
automatic operation of different laws rather than by choice."

Apparently the question of whether your child, or you and your wife,
keep your French citizenship, will have to be answered through the
French Embassy. I'll get to that later.


Excerpts from the Guide to Naturalization
http://www.ins.gov/graphics/services/natz/English.pdf

Some requirements for you and your wife to become citizens.

"5 years as a Permanent Resident without leaving the United States for
trips of 6 months or longer."

You also will need 30 months of "physical presence" in the US, "3
months in your district or state" and have good moral character,
knowledge of English and civics, and "attachment to the constitution".

"Permanent Residents are people who have 'permanent resident' status
in the United States as provided for under our immigration laws."

The Oath of Allegiance
"What does the Oath require? When you take the Oath, you must promise
to do 3 things:
(1) I Will Renounce Foreign Allegiances.
As stated in the Oath, you must renounce all foreign allegiances to
become a U.S. citizen. ..."

It would seem that when you and your wife become naturalized, your
citizenship begins when you have taken the Oath of Allegiance. the
first part of that Oath is a promise to renounce foreign allegiances.

"If you have an hereditary titles or positions of nobility, you must
give them up at the oath ceremony."

Another excerpt from the State Department's Dual nationality page
http://travel.state.gov/dualnationality.html

"A U.S. citizen may acquire foreign citizenship by marriage, or a
person naturalized as a U.S. citizen may not lose the citizenship of
the country of birth.U.S. law does not mention dual nationality or
require a person to choose one citizenship or another."

So while you promise to give up your allegiance to France, you retain
your French citizenship, as far as US law is concerned. We'll see
later if French law requires you to give up your citizenship.

**please note: Information from French Government websites tends to
be, well... en Francaise. Je parle Franciase tres mal. Therefore, I
will have to rely on translation websites. When possible, I will quote
the translation and the original here.**

From:

French Nationality
http://www.diplomatie.gouv.fr/etrangers/vivre/nationalite/index.html
"The attribution of French nationality
by filiation (right of blood): 
Is French the child, legitimate or natural of which one of the parents
at least is French"
"par filiation (droit du sang) :
Est Franais l'enfant, lgitime ou naturel dont l'un des parents au
moins est Franais."

I think this means that since your child will be born to French
parents, it will be French. Please confirm this by reading the linked
page, as I do not trust the translations much.

"La double-nationalit "
"Double-nationality"
"La possession d'une ou de plusieurs autres nationalits, n'a pas, en
principe, d'incidence sur la nationalit franaise ."
"The possession of one or several other nationalities, does not have,
in theory, of incidence on French nationality."
The whole section:
"La double-nationalit  

La possession d'une ou de plusieurs autres nationalit  s, n'a pas, en
principe, d'incidence sur la nationalit  fran  aise .
Toutefois, dans le cadre du Conseil de l'Europe, la Convention de
Strasbourg du 6 mai 1963 a institu  un m  canisme de perte
automatique de la nationalit  d'origine en cas d'acquisition
volontaire de la nationalit  d'un autre Etat contractant.

Un protocole portant modification  cette Convention a  t  sign  en
1993, qui r  duit le champ d'application de la Convention. Ce
protocole, qui n'est entr  en vigueur  ce jour qu'entre la France,
l'Italie et les Pays-Bas , permet au ressortissant de l'un de ces
trois pays de conserver sa nationalit  d'origine en cas d'acquisition
de la nationalit  d'un autre Etat signataire du protocole:

soit lorsque l'int  ress  y est n  et y r  side, ou y a r  sid 
habituellement pendant une p  riode commen  ant avant l'  ge de 18
ans,

soit par l'effet d'une manifestation expresse de volont  faisant
suite au mariage de l'int  ress  avec un ressortissant de cet Etat.


Par ailleurs, la France ne fait aucune distinction entre les
binationaux et les autres Fran  ais sur le plan des droits et devoirs
li  s  la citoyennet  . Un Fran  ais binational ne peut cependant
faire pr  valoir sa nationalit  fran  aise aupr  s des autorit  s
de l'autre Etat dont il poss  de aussi la nationalit  lorsqu'il r 
side sur son territoire, ce binational  tant alors g  n  ralement
consid  r  par cet Etat comme son ressortissant exclusif.
"

Hopefully you can read this, as I cannot get it to translate well
enough to make sense.

Since I cannot be certain of the information presented in the French
segments above, I have looked for extra supporting evidence.

From Are You Sure You're French?
MAURICE T MASCHINO
http://mondediplo.com/2002/06/08france.
"...Despite many minor changes over the last century, no one has ever
challenged the basic principles upheld by the law - the right to the
nationality of parents and birthplace. A person is French if one of
his or her parents is French..."

CITIZENSHIP: Frequently Asked Questions and Answer
http://www.murthy.com/citfaqs.html

"...When that U.S. citizen child turns 21, s/he would be eligible to
apply for the parents' green cards. Only an affirmative act of
renouncing the U.S. citizenship would cause the child's status as
citizen to end..."

Some additional information:

Apparently there is, or was last year, pressure in the US government
to reword the immigration laws based on a different interpretation of
the 14th amendment. For more, please see:
http://www.suite101.com/article.cfm/9578/72721
I'm inclined to go with the current meaning. The author of this
article makes some very good points regarding the newborn child not
being an illegal immigrant, etc. I post this here to point out that
information presented above is certainly not static and subject to
change.

My summary:

It is my conclusion that:

Your child, if born on US soil, will be a US citizen. (Unless you are
working as diplomat, or in any other capacity where by US jurisdiction
doesn't apply to you.

Since you are both French citizens, your child will also have French
citizenships.

Having your child be a US citizen doesn't automatically incur any
advantage, at least any that is mentioned officially, in your quest
for citizenship, permanent resident status, or green cards. Although
your US-citizen child may apply for/sponsor your green card when
he/she is an adult of 21-years of age.

The process of becoming citizens begins with permanent resident
status. You then spend 5 years living in the US. You must live in the
area or state you are applying in for 3 months or more. You'll go
through interviews, fingerprinting, tests, including English and
civics. You then take the Oath of Allegiance. The application progress
can take 6 months to a year, after the end of your 5 years of
residency.

Part of the Oath is promising your allegiance to the US. Therefore,
you are promising that if it came down to it, you'd side with the US
against France or any other country.

As far as I can tell from the translations, you don't lose your French
citizenship when you apply for US. Please let me know if that's
incorrect.

You would only lose your US citizenship if you voluntarily applied for
other citizenship.

I hope this information has been of use to you. Please use the request
for clarification of answer if you would like additional information.
Also, please do so BEFORE rating my answer. If you are satisfied with
my answer, please rate it.

Standard Google disclaimer applies (below). I am not a lawyer or an
immigration official in any way. In fact, I am not even American.

Search Strategies:
I visited the INS website at www.ins.gov, and found some information
and links there.
google.ca -- french embassy usa
google.ca -- french government webpage
google.ca -- french citizenship laws
google.ca -- french dual citizenship
google.ca -- US born child help citizenship
I used google translates and babelfish.altavista.com for translations.

Request for Answer Clarification by margouya-ga on 02 Nov 2002 08:59 PST
Thank you very much for our research. Great work !

I still have an open question though. You wrote:
"Having your child be a US citizen doesn't automatically incur any
advantage, at least any that is mentioned officially, in your quest
for citizenship, permanent resident status, or green cards."

It is my understanding though that a people immigrate illegally to the
US with the wife being pregnant. When the child is born they claim
they have to support him and are therefore granted a greencard.

In my situation, if I loose my job, my current visa E2 will force us
to go back to France. But if we have a child in the US, he will be an
american citizen that we can claim we have to support.

I have had a hard time finding some information about this specific
topic. I would appreciate any extra help you can provide.

Clarification of Answer by sparky4ca-ga on 02 Nov 2002 13:22 PST
From an article regarding foreign nurses coming to the US:
http://www.mnnursing.org/whatsnew/FNGv8.html
"Two of the most common ways to achieve permanent resident status are
through kinship (spouse, child or parent who is an U.S. citizen or
permanent resident)"

From a University of Berkely website:
Children's Services
http://ias.berkeley.edu/siss/flyers/children.htm
"Parents of a U.S. citizen child are eligible to apply for U.S.
permanent resident status when the child is 21 years old."

Legal Eagle - Spot-checking of visas introduced
Nandini P. Nair, US immigration attorney
http://www.expressitpeople.com/20020722/abroad2.shtml
" I have just come to know that if I have my child in the US, he or
she will be a US citizen and can sponsor my husband and me for green
cards as parents of US citizen. Is this true?..."
"It is a common misconception that people can obtain immigration
benefits through their minor, US citizen children. If it were this
easy, most couples of childbearing age would have a green card within
nine months or so. The truth is that minor children cannot petition
for their parents’ green cards. Only US citizens, 21 years of age or
older, can petition for their parents..."

http://www.clearedforlanding.com/relativeall.html
"Parents can be petitioned by a U.S. citizen but only if the
petitioner (sponsor) is over 21 years of age. In other words, a
pregnant mother cannot deliver a baby in the U.S. and have the child
petition her even though the child would be a U.S. citizen."

From The Immigration and Naturalisation Act, Section 201B
http://www.ins.gov/lpBin/lpext.dll/inserts/slb/slb-1/slb-20/slb-1109?f=templates&fn=document-frame.htm#slb-act201
"(2)(A)(i) Immediate relatives. - For purposes of this subsection, the
term ``immediate relatives'' means the children, spouses, and parents
of a citizen of the United States, except that, in the case of
parents, such citizens shall be at least 21 years of age."

From an article complaining about automatic citizenship by birth:
http://web.archive.org/web/20010502121037/http:/frontpagemag.com/guestcolumnists/wall04-30-01.htm
"They are, in fact, rewarded for disobeying U.S. law by having their
children granted automatic citizenship. In addition, the happy family
is entitled to welfare benefits. And, illegal alien parents who have
children born in the U.S. are seldom deported . That's why their
children are called "anchor babies" - they anchor their families
securely in the U.S.A"

From an essay written about immigration:
http://www.free-essays.us/dbase/b5/lvt104.shtml
"A tremendous loophole exists in welfare availability when it comes to
illegal immigrants. All an illegal has to do to get welfare from the
US is give birth on American soil. It does not matter where the child
was conceived, nor does it matter that the parents are committing a
crime against the United States and its citizens. Once an illegal
immigrant gives birth on American soil, the child incredulously
becomes a citizen, the parents pick up the money and benefits that
their citizen baby is entitled, and then the illegal has a foothold in
the US that costs the taxpayers money. It is very unlikely that
someone is going to deport the parents of a thirteen-month-old baby"

http://desiconnection.com/attorney/attorney111_to_115.htm#Dear
"Your child is a US citizen and can travel back and forth, however you
can not stay in the US just because your child is a US citizen."

A posting in a discussion group states:
http://www.maple-immigration.com/immboard/messages/2319.html
"*In a nutshell, here are the two key "benefits" a USC baby can offer
to their alien parents:

1. If the parents are facing removal (deprtation), they may apply to
stay/cancel the removal based on extreme hardship to the USC child.
HOWEVER, the chance of winning that, if the entire case is based on
the one factor, is almost zero. (INS deport illegal aliens with their
US-born children EVERY DAY.)

2. When the USC baby turns 21 (years of age), s/he can petition
her/his alien parents to come to America (this is according to today's
law AND immigration laws change all the times, AND as we continue to
tighten laws on immigration and citizenship, there is a good chance
this will NOT apply in the not-so-distant future, e.g. only children
that are born by at least one LPR/USC can acquire USC status at
birth)."

From Findlaw:
http://articles.corporate.findlaw.com/articles/file/articles/lodac/lodac000001/title/Subject/topic/Immigration%20Law_Deportation/filename/immigrationlaw_1_205
"Being married to a US citizen, or having US born children, does not
automatically guarantee that INS will not try to remove you from the
US"

More from Findlaw:
http://articles.corporate.findlaw.com/articles/file/articles/tt/tt000002/title/Subject/topic/Immigration%20Law_Deportation/filename/immigrationlaw_1_205
"Suspension of Deportation"
"Although it is a discretionary defense which must be applied for in
deportation proceedings, aliens who have lived continuously in the
United States for seven years, whether legally or undocumented, can
apply for this relief. ... they must show that if they were deported
it would result in "extreme hardship" to themselves and/or a parent,
spouse or child who is a U.S. citizen or lawful permanent resident.
Although many of the cases granted involve parents of school age U.S.
citizen children..."

From what I can find, official policy and the actual law itself do not
permit for your US citizen child to help you get a green-card. There
are many personal opinions posted by people who oppose the citizenship
by birthright. Usually these opinions complain that the US born baby
allows the family to stay. It would seem that the parents may be able
to claim for welfare and child assistance, because of the baby. In
these cases, the parents are still illegal immigrants. Other cases
referenced included such things as people having babies here so that,
as a US citizen, the child wouldn't be subject to conscription in the
home country.

If you are planning to go on welfare and live illegally in the US,
then a baby may assist you in that. Having the baby be a US citizen
may also factor in any deportation proceedings against you, since as a
US citizen, the baby cannot be deported. However, it is possible for
you and your wife to be deported. While your child wouldn't be
deported, I'm sure you wouldn't abandon the baby. Also taken into
consideration would be the conditions the child will face if its
parents take him back to their native country. Given that your child
will also be a French citizen, the conditions being faced might not be
so harsh as to compel a court to not deport you.

I would have to summarize that having the child as  US citizen may be
of some help in your not being deported, it would not have a bearing
on your obtaining a green card or citizenship. I think you would be
best to apply for greencard/permanent resident status through the
usual channels as soon as you can, so that you can begin your 5 years
of permanent residency. Don't count on being permitted to remain in
the US just because your child is a US citizen.

Not really related, but this article seems like it would be of
interest to you:
http://www.brook.edu/dybdocroot/wrb/publications/pb/pb15.htm
It describes the removal of some welfare and aid benefits to
non-citizens, even to the citizen children of the non-citizens.

http://www.path2usa.com/GreenCard.htm
"Do you know?
Green card may not be actually green in color."

I just thought I would throw that in. It never occurred to me that
they might not be green!



search strategies:
google.ca -- non-citizens supporting child green card
google.ca -- parents of US citizen baby
google.ca -- deport parents of US baby
margouya-ga rated this answer:5 out of 5 stars
Great research ! Good follow up ! Got all my answers ! Thanks again !

Comments  
Subject: Re: Citizenship through a child born in the USA
From: compiler-ga on 06 Nov 2002 23:17 PST
 
This is indeed a good answer. If the author could also discuss some
successful cases/info. in immigration based on the US born kids by
contraries, it would be perfect.
Subject: Re: Citizenship through a child born in the USA
From: needyourexpertise-ga on 23 Nov 2004 21:31 PST
 
Hi Sparky4ca,
  Your help to the question was amazingly thorough..I'm so grateful to
have learned so much from your answers, and even more so if you can
help answering my question in our situation:

  My fiancee and I are both Canadians.  she also has a US green card. 
If she and I get married in Canada, and later she gives birth to our
child within US (while I stay in Canada), "if" and "how" will this USC
child allow me to lawfully stay and work in US? Will my green-card
wife and my citizen-child enable me to obtain a green card?

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