Chapter 3 - Children Born in the United States to Accredited Diplomats

A. Purpose

The child of a foreign diplomatic officer accredited by the U.S. Department of State who is born in the United States may voluntarily register for lawful permanent residence.^[1]

B. Background

Foreign diplomats enjoy certain immunities under international law. The spouse and child of a diplomat generally enjoy similar immunities. Children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment since they are not “born . . . subject to the jurisdiction of the United States.”^[2] DHS regulations, however, have long allowed these children to choose to be considered lawful permanent residents (LPRs) from the time of birth.^[3]

Registration as a permanent resident under this provision is entirely voluntary, but it does involve an application process. 

This registration process is necessary and available only if both parents were foreign diplomats when the child was born. If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was “born . . . subject to the jurisdiction of the United States,” and is a citizen.

C. Legal Authority

• 8 CFR 101.3 – Creation of record of lawful permanent resident status for person born under diplomatic status in the United States

• 8 CFR 264.2 – Application for creation of record of permanent residence

D. Eligibility Requirements

To register permanent residence as a child born in the United States to a foreign diplomatic officer accredited by the Department of State, the applicant must meet the following eligibility requirements:

1. Voluntarily Seeking the Benefit

This is automatically established by the applicant applying to register permanent resident status in the United States.

2. Born in the United States

The applicant must establish birth in the United States.

3. Continuous Residence in the United States^[4]

Generally, absences that would not affect the status of any other LPR do not break the continuous residence of an applicant under this program. Some additional guidelines are applicable to this particular type of case:

• Temporary or extended absences from the United States do not break continuous residence if the diplomatic parent remained accredited to the United States during the applicant’s absence. For example, many children of diplomats attend school in their parents’ home country while the parents are on diplomatic assignment. An absence for this purpose, even if it extended for a year or longer, would not be considered a break in the applicant’s continuous residence.

• Readmission to the United States as an A or G nonimmigrant^[5] at the end of an absence does not break an applicant’s continuous residence.

• Departure of the applicant’s diplomatic parent does not break the applicant’s residence if the applicant remains in the United States. However, if the applicant permanently departs with his or her diplomat parent, continuous residence is broken.^[6]

4. Parent with Full Diplomatic Immunity at Time of the Applicant’s Birth

Diplomats accredited to the United States and having full diplomatic immunity are listed on the Department of State’s Diplomatic List (Blue List).^[7] If either parent was listed on the Blue List when the applicant was born, the applicant is eligible to apply for this benefit. Both parents do not have to be listed for the applicant to be eligible.^[8]

Not all diplomats or employees of certain designated international organizations admitted to the United States as an A or G nonimmigrant have full diplomatic immunity and appear on the Blue List. For example, the immunities that apply to a foreign consular officer are not the same as those that apply to diplomats. In order to determine eligibility to register for permanent residence based on being born in the United States in diplomatic status, the applicant must submit official confirmation of the diplomatic classification and occupational title of his or her parent at the time of birth. 

USCIS confirms with the Department of State whether the applicant’s parent(s) was on the Blue List at the time of the child’s birth. If an applicant did not have a parent on the Blue List at the time of his or her birth in the United States, then the applicant is a U.S. citizen because the applicant did not have full diplomatic immunity and was therefore subject to U.S. jurisdiction at the time of birth.

5. Applicant Lost or Waived Diplomatic Immunity

Because an LPR cannot be immune to the laws of the United States, applicants who retain diplomatic immunity at the time they apply to register permanent residence must submit with their application a completed and signed Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities (Form I-508).

However, if, at the time an applicant applies to register lawful permanent residence, the applicant has lost diplomatic immunity as verified by USCIS through the Department of State, then the applicant does not need to submit Form I-508 with the application.

E. Documentation and Evidence

An applicant should submit the following to establish eligibility for lawful permanent residence as a person born in the United States to an accredited foreign diplomatic officer:

• Application to Register Permanent Residence or Adjust Status (Form I-485), with the correct fee;

• Request for Waiver of Certain Rights, Privileges, Exemptions, and Immunities (Form I-508);

• Two passport-style photographs;

• Copy of government-issued identity document with photograph;

• Copy of birth certificate;

• A list of all the applicant’s arrivals into and departures from the United States; 

• Proof of continuous residence in the United States; and

• Official confirmation of the diplomatic classification and occupational title of the applicant’s parent(s) at the time of the applicant’s birth.

F. Adjudication

A decision on registration of those born in the United States in diplomatic status does not involve any consideration of admissibility or discretion. If the applicant meets all eligibility requirements,^[9] an officer must approve the application. USCIS may require the applicant to appear in person for an interview, if needed.^[10]

If approved, USCIS assigns the following code of admission: 

The effective date of permanent residence is the applicant’s date of birth.^[11]

Footnotes

[^ 1] See 8 CFR 101.3(a).

[^ 2] See 8 CFR 101.3(a)(1).

[^ 3] See Matter of Huang (PDF), 11 I&N Dec. 190 (Reg. Comm. 1965) and Matter of Chu (PDF), 14 I&N Dec. 241 (Reg. Comm. 1972).

[^ 4] See 8 CFR 101.3(d).

[^ 5] See INA 101(a)(15)(A) or INA 101(a)(15)(G).

[^ 6] See Nikoi v. Attorney General of the United States, 939 F.2d 1065 (D.C. Cir. 1991).

[^ 7] See 8 CFR 101.3(a)(2).

[^ 8] However, this registration process is necessary and available only if both parents were foreign diplomats when the child was born. If one parent was an accredited diplomat, but the other was a U.S. citizen or non-citizen U.S. national, then the child was born subject to U.S. jurisdiction and is a citizen.

[^ 9] See 8 CFR 101.3. See 8 CFR 264.2.

[^ 10] If it appears that the applicant is subject to removal, approval of registration does not bar issuance of a notice to appear.

[^ 11] See 8 CFR 264.2(h)(2).