Timeline for US citizen abroad in a country on the visa waiver program, has a baby eligible for citizenship, can I bring him on a foreign passport
Current License: CC BY-SA 4.0
24 events
| when toggle format | what | by | license | comment | |
|---|---|---|---|---|---|
| Jul 7, 2023 at 17:01 | comment | added | user102008 | Although it is "unlawful" for a US citizen to enter or exit the US without "bearing" a US passport, there is no penalty for violating this law, so you don't need to worry about the child being a US citizen entering on VWP. The only issue is the practical matter of whether your child can get the ESTA. The airline and immigration officers at entry do not have the time to adjudicate the complex issues of whether the conditions are met to have transmitted US citizenship. (And at the port of entry, a US citizen cannot be denied entry even if they have no US passport anyway.) | |
| Jul 7, 2023 at 12:01 | comment | added | nat estoli | based on "unable or unwilling", could I just be unwilling and by extenion vwp, by vwp there is obviously no need for an officer since it goes via ESTA, and therefore make my son a presumed alien and be entitled to a visa and then fast track everything from inside the United States (in the US I am "willing"), after all "the visa may be issued prior to the final determination of citizenship status" | |
| Jul 7, 2023 at 11:53 | comment | added | nat estoli | @102008. The link to 7 fam o85 is very useful. Although a consular officer may not issue a visa to an individual who has been determined to be a U.S. citizen, if a nonimmigrant visa applicant has a possible claim to U.S. citizenship but is unable or unwilling to obtain documents to establish that status, the visa officer may presume that the applicant is an “alien” pursuing a nonimmigrant visa application. If the presumed alien is found eligible to receive the visa for which application was made, the visa may be issued prior to the final determination of citizenship status | |
| Jul 7, 2023 at 9:09 | comment | added | nat estoli | first of all a big thanks to user 102008 & Hilmar. To sum everything up. 1. if my son is meets all the criteria for citizenship he is immediately a citizen, hence the consular report of birth is a mere formality of official recognition, and can not enter on the visa waiver program. 2. if he is eligible but needs to to be confirmed and aquire citizenship (such as the specific case from the UK that was posted) than he may enter on the visa waiver. Any advice how to enter without waiting for at least 6 months? | |
| Jul 7, 2023 at 0:08 | comment | added | user102008 | @natestoli: Your child is already a US citizen if the conditions in US law for acquisition of US citizenship at birth are met, even if the government doesn't know about your child, and even if no documentation is ever issued documenting the child's citizenship. The citizenship is not "retroactive" -- as far as the law is concerned, the child is either a citizen at birth or not based on the facts. Even if your child never claims or wants to be a US citizen, they will technically have all the obligations of citizenship, including taxation, unless and until they renounce it. | |
| Jul 6, 2023 at 21:42 | comment | added | Hilmar | @natestoli: I made may have made a mistake there. You need to determine whether the baby is already a US citizen or not. This depends on your own history, i.e. when and how long did you live in the US and how old where you at the time. Even if the child is a citizen, you can apply for an ESTA. It's not an automatic show stopper and anecdotal report have been hit or miss, sometimes it works and sometimes it doesn't. You still need to determine the citizen status of your child: they ask about it in the ESTA application and it's NOT a good idea to provide wrong data. | |
| Jul 6, 2023 at 21:37 | comment | added | Hilmar | @user102008: the baby has only US citizenship if "the U.S. citizen parent must have been physically present in the United States or one of its outlying possessions for five years prior to the person’s birth, at least two of which were after the age of 14." So it depends on the details. | |
| Jul 6, 2023 at 20:35 | comment | added | nat estoli | what you wrote makes sense but why is it truthfull to write that he is a citizen, even if he is recognized retroactively at the time the form is filled ha is not recognized as a citizen, and has no legal rights of a citizen, hence no duties either (no taxation without representation!) and therefore not bound by the law of not entering without a US passport. I am not a lawyer and it could be you are right and I could truthfully say he is not a citizen even if he will be retroactively be recognized. Is this just a legal question or is it also a little philosophical. | |
| Jul 6, 2023 at 20:19 | comment | added | nat estoli | in the question titled "entering the us with us citizenship pending", there is a sentence "I'm yet to know if I've even been accepted for citizenship". In my case my son is definitly eligible but I did not report him yet due to the enormous 6 month backlog at the consulate | |
| Jul 6, 2023 at 20:18 | comment | added | user102008 | @natestoli: The practical question is whether you can get an ESTA for the child. Does the ESTA application ask about the child's other citizenships? And if you truthfully include US citizen in there, will they still approve the ESTA? | |
| Jul 6, 2023 at 20:16 | comment | added | user102008 | @natestoli: According to 7 FAM 085.b, a nonimmigrant visa (and by extension, entry on the Visa Waiver Program) cannot be issued to someone who is determined to be a US citizen, but can be issued to someone who might already be a citizen but where a final determination has not been made. Note that the determination does not give the child US citizenship -- it is simply a determination of the fact that the child already had citizenship from birth. | |
| Jul 6, 2023 at 19:43 | comment | added | nat estoli | l found this question "Baby with American citizen father, travelling to America". some responses there were more positive about the possibility of entering | |
| Jul 6, 2023 at 19:19 | comment | added | nat estoli | user 102008 -does this mean that I can not bring him on a foreign passport, do I have to wait 6 months??? | |
| Jul 6, 2023 at 19:15 | comment | added | user102008 | @Hilmar: "The baby is eligible for US citizenship but it doesn't become a citizen until a certificate of naturalization has been issued" This is incorrect. If the conditions in the law for the child born abroad to acquire US citizenship at birth were met, then the child is automatically and involuntarily a US citizen from birth as far as the law is concerned, even if no action is ever taken, and even if they don't want it. | |
| Jul 6, 2023 at 19:07 | comment | added | nat estoli | I think that what hilmar wrote and what async responded is the essence of the debate over the question of "entering the us with us citizenship pending"; there was no clear cut answer there either, similar to the reason that he can not get a visa the country would have been required. That is why I wanted to know if on top of the obvious expertise of hilmar that is also recognised by the users, if you are also an official authority that I could tell officials that I got an official response from a government official. Thank you everyone for your time and effort | |
| Jul 6, 2023 at 18:27 | comment | added | async | @Hilmar is naturalization the correct term or process here though? The baby is already a US citizen by birth, despite there being no official documentation to confirm it at this stage. | |
| Jul 6, 2023 at 18:08 | comment | added | Hilmar | @natestoli: if the baby has a passport you should be able to get an ESTA just as any other citizen of your country (perhaps like your wife). The baby is eligible for US citizenship but it doesn't become a citizen until a certificate of naturalization has been issued . | |
| Jul 6, 2023 at 16:41 | review | Close votes | |||
| Jul 16, 2023 at 3:01 | |||||
| Jul 6, 2023 at 16:24 | comment | added | user102008 | Does this answer your question? Entering the US with US citizenship pending | |
| Jul 6, 2023 at 14:10 | comment | added | nat estoli | Thanks for your time. We have a local bith certificate and passport. I (the father) am a citizen, my wife is not, though since we are probably moving to the USA so she will also get citizenship. Is your source of knowledge of the law from experience/practical etc | |
| Jul 6, 2023 at 13:39 | history | edited | Traveller | CC BY-SA 4.0 |
added 13 characters in body; edited tags
|
| Jul 6, 2023 at 13:31 | comment | added | Hilmar | What exact documents do you have for your baby? Birth certificate, local passport or ID card, anything else ? Are both parents US Citizens and have US passports ? If your child has passport you can simply apply for an ESTA for the baby. | |
| S Jul 6, 2023 at 12:36 | review | First questions | |||
| Jul 6, 2023 at 15:50 | |||||
| S Jul 6, 2023 at 12:36 | history | asked | nat estoli | CC BY-SA 4.0 |