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The law requiring US citizens to "bear" a US passport when leaving and entering the US is the Immigration and Naturalization Act section 215, found at 8 USC § 1185, Travel control of citizens and aliens, subsection (b).

I need to take my baby back to my home country soon since my job in United States is ending in the July and I managed to get my baby a foreign passport. However I cannot get a United States passport for her since they stopped issuing United States passport and will delay for months.

What is the best way to leave the USA without violating this law? Is it possible to get approval or should I get a lawyer for help on this? What type of lawyer should I have? Any experience with this?

Thanks for the comments: For departure, we get many comments about no one enforcing the law, but still it is a law... We are worried that the penalty will change in future and affect my daughter in future, which could be several decades.

For return, I will definitely apply in overseas Embassy in future. But another issue is will my daughter lose her citizenships if she leave USA with a foreign passport?

Update in May 2021. No one really ask about the US passport for my daughter during the travel. The passport was sent to my friend and then mailed to me in last September.

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    You can leave the US without a passport. No one checks. You can enter without passport although it will be hassle. (you can't be denied entry). However, you can NOT board a US bound plane without a passport., you need to come in through a land border. There is no penalty: just harassment by CBP.
    – Hilmar
    Commented May 25, 2020 at 12:04
  • @Hilmar there is a regulation in the works to impose a fee on US citizens entering on the land border without having documents that comply with the requirements of the Western Hemisphere Travel Initiative. I do not know when that is likely to take effect.
    – phoog
    Commented May 25, 2020 at 15:44
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    Many comments and answers are incorrect in that they ignore the fact that you cannot board an international flight without a passport. The airline will simply not let you [you, not your child] - It is correct that the US authorities do not (actively) care if someone leaves without a passport. But the destination of the flight will require a passport, and the airline knows that.
    – Aganju
    Commented May 25, 2020 at 19:11
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    @Aganju according to the OP the baby has a passport, just not an American. Seemingly the airlines wouldn't be particular about you having an American passport; why would they care if you fly from New York to New Delhi with an American or Indian passport? both are acceptable in India (I assume). The issue is only the legal question- will the USA gov't cause problems. That's what people are addressing.
    – Binyomin
    Commented May 25, 2020 at 20:07
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    This issue looks important enough to warrant a visit to a specialized lawyer (even if that implies paying his honorary). I would not rely on the internet for such an issue. Besides that, this is more a question for law.SE than this forum.
    – Quora Feans
    Commented May 25, 2020 at 22:05

6 Answers 6

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It is unlikely your child can leave without having a US passport without violating this law.

But this law is not enforced at all with respect to departures since US does not have exit control presently; and neither TSA nor the airline cares about it; and there is no penalty specified for violation.

For returning, your child will need to pass immigration where this law could be a hassle for you (but your child can't be denied entry as a US citizen in any case).

If you really want to follow this nonenforced and nonenforceable law (or your child want to return to US without US passport with less hassle), you can ask the White House for a Presidential exception (unlikely) or use one of the exceptions specified in 22 CFR § 53.2.

(b)(11)(i) is particularly useful for your child: if your passports qualify for visa-free entry/transit or if you have proper visas, you can enter US via Canada or Mexico and her birth certificate would suffice to enter.

(11) When the U.S. citizen is a child under the age of 19 arriving from contiguous territory in the following circumstances:

(i) Children under age 16. A United States citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when entering the United States from contiguous territory at land or sea ports-of-entry; or

Thanks for the comments: For departure, we get many comments about no one enforcing the law, but still it is a law... We are worried that the penalty will change in future and affect my daughter in future, which could be several decades.

The US Constitution expressly prohibits ex post facto law. The penalty cannot be applied or increased in the future if no penalty exists at the time. Even if there is any penalty, as a literal baby, she won't be held accountable or punished for her parents' act.

For return, I will definitely apply in overseas Embassy in future. But another issue is will my daughter lose her citizenships if she leave USA with a foreign passport?

No. It is impossible to lose a US citizenship by birth without expressly renouncing it as an adult.

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  • As a side note, I bet millions of people technically violate this law every year. Note how technically many of the exceptions only apply to arriving citizens and not departures.
    – xngtng
    Commented May 25, 2020 at 11:50
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    "It is impossible to lose a US citizenship by birth without expressly renouncing it as an adult": this isn't quite true. If the US can convince a judge that an adult has performed one of several expatriating acts voluntarily and with the intention of losing US citizenship, US citizenship will be lost. Of course, that is very difficult to prove, and the US has a policy in most cases of presuming that there is no intention to lose US citizenship, but it's possible to imagine cases where the presumption does not apply and the US could establish the citizen's intention to lose citizenship.
    – phoog
    Commented May 25, 2020 at 15:40
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    Out of curiosity, how would you prove US citizenship without a passport?
    – DevSolar
    Commented May 25, 2020 at 18:07
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    @DevSolar The same kind of documentation you would use to get the passport in the first place. E.g. US birth certificate or certificate of naturalization, and possibly some others.
    – Alan Munn
    Commented May 25, 2020 at 18:17
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    @AlanMunn: Thanks, I was wondering about how that all would work in the US.
    – DevSolar
    Commented May 25, 2020 at 21:01
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The legislation exists but there's no penalty for not complying with it.

In any case, your baby will be travelling on a foreign passport so nobody will care about the US one or bother to check.

Returning to the US is a different matter. If your child doesn't possess a US passport it is still possible to enter the US as a citizen, but it will take time. You should apply for a US passport at the local embassy overseas if you plan to return.

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    "Nobody will care about the US one": it seems that some airlines might. The closest I've come to encountering this personally was flying Delta from JFK to Dakar, where the check-in kiosk seemed to be asking passengers to scan their US visas on exit (it asked my wife, who has a non-VWP passport). Since I was a bit late for my check-in, I did not try using my non-US passport to see what would happen.
    – phoog
    Commented May 25, 2020 at 15:42
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I am a naturalized US citizen also a citizen of Argentina. When I enter the USA I must present my USA passport, no way around it. When exiting the airline check-in agent is the one that looks at the passport, not a Customs and Border Patrol officer. They usually ask if I have a visa for Argentina (not needed) then they want to charge me for the entry fee for Argentina (a couple hundred US dollars) so I tell them being an Argentina Citizen I don't need to pay. Then I show my Argentina Passport. Many not well informed agents have then entered my Argentina Passport data for leaving the country, instead of the USA one, when filing my exiting data. This has never ever caused me a problem upon return. Since you have a baby, I think they will only make sure both parents are present or, if only one is leaving with the child, that he/she has an authorization from the other parent to do so. It used to be one parent was enough but I believe that not to be the case anymore (quite reasonable). Other than that, I don't see a problem leaving with the foreign passport for your child. Before return as they've said, you'd need a USA passport.

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    Good point about one parent leaving with a child. Abductions by one parent without consent of the other happen too often.
    – gerrit
    Commented May 26, 2020 at 9:12
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    You statements about needing a US passport for returning to the US because you have to show the airline check-in agent only apply to entering the US by air, and not by land (where you will not encounter an airline check-in agent).
    – user102008
    Commented May 28, 2020 at 5:47
  • It's a side point, but US citizens no longer (since March 2016) have to pay the "reciprocity fee" to travel to Argentina. Argentine citizens, of course, never had to do so.
    – mlc
    Commented May 28, 2020 at 16:29
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+500

NOTE: I'm not an attorney. The information I got is my own opinion based on what I've read on the State Department's websites. If you want legal advice, please seek out an attorney.

To answer your question in your update, the answer is no. Your child would not lose their U.S. citizenship for leaving the U.S. without a U.S. passport. Why? The answer is that loss of nationality is defined under 8 U.S.C. 1481 if they commit the following acts with the intent to lose U.S. citizenship:

  1. obtaining naturalization in a foreign state after the age of 18 (Sec. 349 (a) (1) INA);
  2. taking an oath, affirmation or other formal declaration of allegiance to a foreign state or its political subdivisions after the age of 18 (Sec. 349 (a) (2) INA);
  3. entering or serving in the armed forces of a foreign state engaged in hostilities against the United States or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);
  4. accepting employment with a foreign government after the age of 18 if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);
  5. formally renouncing U.S. nationality before a U.S. diplomatic or consular officer outside the United States (sec. 349 (a) (5) INA);
  6. formally renouncing U.S. nationality within the United States (The Department of Homeland Security is responsible for implementing this section of the law, and any inquiries should be directed to DHS) (Sec. 349 (a) (6) INA);
  7. conviction for an act of treason against the Government of the United States or for attempting by force to overthrow, or bear arms against, the Government of the United States (Sec. 349 (a) (7) INA)

Your child is not doing any of these. And even if the child does any of these things, there's still the requirement that these acts be done with the intent to lose U.S. citizenship. It's a pretty easy case to demonstrate that an infant hardly has the capacity to form said intent.

If you're interested in seeing how the U.S. State Department would make a determination of loss of nationality, check out 7 FAM 1200 in the Foreign Affairs Manual.

Hope this helps!

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IANAL but the 'more lawful' way I can think of would be to request a US passport anyway. You write them a nice letter explaining why you need them to issue a passport for your daughter before X date. It may be a good idea to have a lawer handle this.

Yes, you already know their reply will be "I am sorry but we are unable to process your petition at this point", or you being queued to be processed at "X + many months". The point is in receiving their reply.

Suppose that, as you fear, in 20 years your daughter does indeed find difficulties getting a passport. She faces an anal official doubting her citizensip as she didn't leave on a US passport. Nobody remembers coronavirus crisis (just a note on history books), much less that they stopping issuing passports. Any entry on their official web pages is long gone.

It would be handy to be able to show that correspondence where the Government refused to (promptly) issue a passport to your child, despite clearly stating your need. It might still be illegal to leave the country without a passport they won't give you, but it makes your case stronger.

Also, having used the services of a lawyer could help to back your claim: "yes, my records indicate that twenty years ago I handled a request by a certain Mahali Sindy about a baby that in the end, couldn't be issued a passport due to pandemy. Here is my copy of the government reply".

Obviously, make sure to get a copy of everything that could be needed in the future to show the citizenship of your daughter.

The US Embassy on your home country should have a registry of US nationals living there. I would recommend listing her there when you arrive. The point is that she doesn't appear as a US citizen coming out of nowhere, but there is a clear track record that she had been known to be living there since she arrived to the country.

Also, get her a passport once it is possible again, even if she's not going to travel anywhere. I expect that if there is any issue, it would be with the first expedition. Further renewals would just require the previous one, even if expired. Thus, you would want to get the first one before all this experience fades from people memory.

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  • The State Department has a centralized Smart Traveler Enrollment Program rather than individual registries maintained at each embassy. It's possible to register whether one is present in the US or abroad.
    – phoog
    Commented May 27, 2020 at 22:55
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There are some loopholes out there. For instance, passengers on a round-trip cruise from the US can get off the boat in different countries with a birth certificate. I did this on my first cruise in 2016. I know cruises aren't running right now but there might be other similar loopholes.

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