IMMIGRATION LAW MONTHLY

November 2007

Written by Henry J. Chang

I would like to know if I have some rights as I was born in the United States and I have a New York Birth Certificate. My father was working at a foreign embassy at the time although I do not know what position he held there. I currently hold an Argentinean Passport. I read that there are some exceptions to the Fourteenth Amendment. Do I have a claim to U.S. citizenship or even permanent residence?

You are of course referring to the Fourteenth Amendment to the U.S. Constitution. The relevant portion appears below:

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

You are clearly referring to the general rule that all pesons borh in the United United States are citizens of the United States. However, there are exceptions to this general rule.

The Fourteenth Amendment clearly states that birth in the United States confers U.S. citizenship only on persons born "subject to the jurisdiction thereof." Under international law, foreign sovereigns and accredited diplomatic officials are not subject to the jurisdiction of a foreign country in which they are sent. As a result, children born in the United States to foreign sovereigns and accredited diplomatic officials do not acquire U.S. citizenship at birth.

You mentioned that your father was working in a foreign embassy (presumably Argentina) in the United States at the time of your birth. You need to determine whether he actually held diplomatic immunity and, if so, whether it extended to his family members.

In general, children born in the United States to the following categories of individuals are subject to the jurisdiction of the United States and will acquire U.S. citizenship at birth:

Persons on the Department of State's White List. This is a list of employees of diplomatic missions not printed in the diplomatic List. Although persons on the White List are entitled to some diplomatic immunity, it does not extend to family members.

Consular officers and members of their staff.

Foreign diplomats accredited to a country other than the United States.

Employees of foreign missions accredited to the United Nations or other international organizations, if they are not listed on the Department of State's Blue List (i.e. the diplomatic list) or UN Privileges and Immunities List.

Officers and employees of the United Nations and other international organizations, if they are not listed on the State Department's Blue List or UN Privileges and Immunities List.

However, this is an extremely complicated issue. I recommend that you obtain a formal legal opinion once you have determined the diplomatic status (if any) of your father.

My mother is lawful permanent resident of the United States. She filed for my brother who is over 21 and unmarried. However, she is going to become a United States citizen before his priority date becomes current. Can my brother upgrade his pending case and and maintain his priority date? Can he also get married after my mother becomes a United States citizen and still retain his priority date?

According to 8 CFR §204.2(i)(3), if your mother becomes a U.S. citizen, your brother's case will automatically convert from the family-based 2b preference (unmarried adult sons and daughters of permanent residents) to the first family-based preference (unmarried adult sons and daughters of United States Citizens). If this occurs, his priority date will be preserved. He will also have to wait for a much shorter period of time as a family-based first preference applicant.

According to 8 CFR §204.2(i)(1)(i), if your brother marries after your mother becomes a United States citizen, his case will automatically convert from the first family-based preference to the third family-based preference. His priority date will be preserved but he will still wait a bit longer because the visa backlog is worse fot the family-based third preference than for the family-based first preference.

Current processing dates for the above family-based preference categories are shown in the latest Department of State Visa Bulletin.

I have been barred from entering the United States for 20 years. I am married to a U.S. citizen and a beneficary of a Form I-130 family-based immigrant petition. Is there a possibility that my 20 year bar can be reduced from 20 years to 5 or even waived completely?

I am not exactly sure of the basis for your 20 year bar. However, I suspect that you were barred for 20 years because you were removed from the United States either through expedited removal or at the end of removal proceedings initiated upon your arrival to the United States (formerly known as exclusion). The bar would be 20 years if this was your second of subsquent removal. If this is the basis for bar, then you were barred under INA §212(a)(9)(A)(i).

According to INA §212(a)(9)(A)(iii), an alien who wishes to seek admission to the United States before the period of the bar has expired may seek permission to reapply for admission after removal. If permission to reapply is granted, the alien will be allowed to enter the United States. Although I cannot comment on your chances of obtaining permission to reapply, the fact that you are married to a United States citizen is a positive factor that will be considered when adjudicating your application.