SOME Military and Government Employee Children Born Outside the US to Join the Visa Waitlist
On August 29, 2019, the USCIS issued a “Policy Alert” regarding the children of US military and government personnel born outside the US, to take effect on October 29, 2019. Any applications/registrations of the soon to be affected children would be processed under the current interpretations. The policy alert is, as stated by Acting USCIS Director, Ken Cuccinelli, a move to coordinate what he believes to be the law with the Department of State’s application.
Previous interpretation was that children born to US military personnel and government employees on assignment outside the US and its Territories were eligible to become US citizens at birth. No distinction had been made among US citizens, Lawful Permanent Residents (LPRs) or US citizens whose children were unable to derive citizenship through this parent. The provision that had been interpreted to issue "automatic" citizenship is Section 322 of the Immigration and Nationality Act (INA). Again, as of October 29, 2019, this interpretation would no longer be valid.
Acting Director Cuccinelli has stated this does not affect those children who qualify for "birthright" citizenship under the Immigration and Nationality Act (INA 320). He also has stated that immigration exceptions for military and government personnel only apply to spouses because “children” are not specifically named in the statute.
Who most likely is affected? The children of US military and government employees stationed outside the US who are unable to derive US citizenship because they are lawful permanent residents (LPRs) or the US citizen parent(s) does not have sufficient physical presence in the US (cumulative 5 years, two of which are after their 14th birthday - there are other requirements, but this is usually the sticking point). Foreign adopted children in the same family situation will also be affected.
The “solution” for these children is to have the parent submit an I-130, Immigrant Visa Petition. The delays could be significant as overseas Immigration Offices (not consular posts) are being closed worldwide with the processing of the petitions to be done in the US.
There is no “military exemption” for government employees stationed overseas and their children, again, who do not qualify for derivative citizenship at birth. These children will need to enter the US on visas and take the Oath of Allegiance in the US or its Territories.
Foreseeable problems are:
The LPR and US citizen parents unable to give their children derivative naturalization are not “residing” in the US because they are on government assignment. Had they been living in the US at the time the child is born, the child would automatically be a US citizen. Those military personnel and government workers assigned to positions in the US, with the same immigration history, do not face this problem. This interpretation also makes the broad assumption that the mother of the child will be able to travel to the US or a Territory in order to have the child, if not otherwise able to qualify under INA Section 320.
It is generally true in the diplomatic corps that children of Embassy/Consular personnel are considered to be citizens of that country. These children are not normally eligible for birthright citizenship in the country where their parents are assigned. Will these children then be stateless?
The Pentagon has yet to issue a response, although the Foreign Service has expressed concern as to the potential problems.
For the full PDF text see USCIS Policy Alert, PA-2019-05, dated 28 August 2019.