Us-Born Babies Of Undocumented: What's The Law?

The Fourteenth Amendment to the United States Constitution states that 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. This means that babies born in the US are automatically granted citizenship, regardless of their parents' immigration status. This is known as birthright citizenship or jus soli (right of the soil).

The only exceptions to this rule are children born to foreign diplomatic officers or government officials, and children born in US territories such as American Samoa, who are considered US nationals but not citizens.

While birthright citizenship grants automatic citizenship to babies born in the US, it does not guarantee their parents any additional rights to immigrate or avoid deportation. US immigration law allows US citizens to petition for their parents to receive green cards, but only after the citizen turns 21.

Additionally, parents who entered the US illegally may face further complications when seeking a green card, as they may be deemed inadmissible due to having spent more than 180 days in the country illegally while over the age of 18.

It is important to note that each case is unique, and consulting with an experienced immigration attorney is essential to understanding the specific options and pathways to legal status.

Children born in the US to illegal immigrants are automatically US citizens

The 14th Amendment to the US Constitution grants citizenship to "all persons born or naturalized in the United States and subject to the jurisdiction thereof". This is known as birthright citizenship and is guaranteed to most people born on US territory. The only exceptions are children born to foreign diplomats or those living on tribal land.

History of Birthright Citizenship

The US did not always grant citizenship to everyone born within its territory. Before the Civil War, enslaved people and their children, as well as married women, were excluded. The 14th Amendment, adopted in 1868, overrode the Dred Scott v. Sandford (1857) Supreme Court decision, which denied citizenship to African Americans, and extended citizenship to all former slaves.

Automatic Citizenship for Children of Illegal Immigrants

The children of illegal immigrants are automatically granted US citizenship if they are born in the US or one of its territories. This is the case regardless of the parents' circumstances or immigration status. The only exception is for children born to foreign diplomatic officers or government officials.

Pathway to Citizenship for Illegal Immigrants

Having US citizen children does provide a pathway to citizenship for illegal immigrants. However, it is not a simple or quick process. US immigration law designates the parents of US citizens as "immediate relatives" but states that US citizens cannot petition for their parents to immigrate until they (the children) turn 21.

Avoiding Deportation with US Citizen Children

Having US citizen children does not guarantee that illegal immigrants will avoid deportation. However, it may be possible to remain in the country thanks to "deferred action", a form of prosecutorial discretion where the US government prioritises removing illegal immigrants who have criminal records or threaten public safety.

Parents of US citizens cannot apply for lawful permanent residence until their child turns 21

US immigration law allows US citizens to petition for their parents to receive lawful permanent residence, but only once the US citizen child has turned 21. This is because, under immigration law, a "child" is considered to be an unmarried person under 21 years of age.

The process of petitioning for parents

Once the child has turned 21, they can submit a family-based petition for their parents to receive lawful permanent residence. This is a two-step process. First, the US citizen child submits a visa petition on their parent's behalf. If the parent is eligible for the visa petition, immigration will approve it. Once the petition is approved, the parent will need to wait for a visa to become available before they can move on to the second step.

The second step involves the parent applying for lawful permanent residence, often referred to as a "green card". This can be completed through "consular processing" in the parent's home country, or through "adjustment of status" inside the United States.

Difficulties in remaining in the US until the child turns 21

Staying in the United States without legal permission for the time it takes for the child to turn 21 could be difficult and could lead to negative immigration consequences. When the child turns 21 and petitions for their parents, the parents will not be able to remain in the United States to complete the green card application through "adjustment of status". This is only an option for parents of US citizens whose last entry to the US was legal. Instead, the parents will need to go to a visa interview at a US consulate.

At the visa interview, the consular officer will inquire as to whether the parent is "inadmissible" on various grounds, including having spent more than 180 days (six months) in the US illegally while over the age of 18. If so, the parent might be barred from the US for either three or ten years.

The role of the citizen child as a financial sponsor

After turning 21 and petitioning for their parents, the child will need to be living in the United States and earning enough money to serve as their parent's financial sponsor. This means that the child must be able to support their parent(s) at a level that is 125% or more (in most cases) above the US Poverty Guidelines.

Other options for avoiding deportation

Another option for parents of US citizens who are facing deportation is "prosecutorial discretion" or "deferred action". In these cases, the authorities promise not to deport the parents for the present, but do not grant them a green card or anything similar.

Even undocumented parents who are placed into removal proceedings might be able to apply for "cancellation of removal". To be eligible, the parents must be able to show that:

• They have lived (been "continuously physically present") in the US for at least ten years
• Removal ("deportation") from the US would cause "exceptional and extremely unusual hardship" to a qualifying relative or relatives who are US citizens or lawful permanent residents (most likely the child)
• They have "good moral character"
• They have not been convicted of certain crimes or violated certain laws

Parents who entered the US illegally may be inadmissible

The United States Citizenship and Immigration Services (USCIS) states that unlawful presence is defined as any period of time when an individual is present in the US without being admitted or paroled, or when an individual is present in the US after their "period of stay authorized by the secretary" expires. Non-citizens accrue unlawful presence if they are in the US without being admitted or paroled, or if they have overstayed the period of stay authorized by the secretary of homeland security.

According to the law, if an individual's unlawful stay was at least 180 days long, they are "inadmissible" to the US for three years. If the unlawful stay was one year long, they are inadmissible to the US for ten years once they leave. Unlawful presence bars are triggered by the act of leaving the US, so consular processing of immigrant visas abroad would mean years of separation before the individual could be admitted to the US again.

If a US citizen child's parents entered the US illegally and stayed, they may be inadmissible. When the child turns 21 and petitions for their parents, the parents will not be able to stay in the US to complete the green card application through the process known as "adjustment of status". Instead, they will need to go to a visa interview at a US consulate. The consular officer will then inquire as to whether each parent is "inadmissible" on various grounds, particularly for having spent more than 180 days (six months) in the US illegally while over the age of 18. If so, the person might be barred from the US for either three or ten years.

Some people can potentially apply for a waiver of the unlawful presence ground of inadmissibility, but only if they can prove that being denied the visa would cause extreme hardship to their own US citizen or lawful permanent resident parents or spouse, or US citizen fiancé. Hardship to US citizen children does not count in this context.

US citizen children can qualify as financial sponsors for their parents

In the United States, a child born to non-citizen parents is referred to as an "anchor baby" and is a citizen by birthright. This status can help the parents and other family members gain legal residency. However, citizen children cannot sponsor their parents for entry into the country until they are 21 years old. Once they are 21, they can petition for their parents to receive a Permanent Resident Card (Green Card).

The child will need to be living in the United States and earning enough money to serve as the parents' financial sponsor, ensuring they are supported at a level that is 125% or more above the U.S. Poverty Guidelines. This can be achieved through the child's household income or family assets.

The process for sponsoring a parent involves submitting a United States Citizenship and Immigration Services (USCIS) Form I-130. The child will also need to prepare Form I-864, the affidavit of support, which promises to reimburse any government agency within the United States from which the parents receive need-based assistance over approximately the next ten years.

If the child is a U.S. citizen and the parent is living in the U.S. unlawfully, the parent may be considered "inadmissible" and face a time bar on receiving residence for up to ten years if their unlawful stay was at least 180 days long. In this case, the parent can apply for a waiver of inadmissibility, but it requires proving that a U.S. citizen or lawful permanent resident spouse or parent (not the child) would suffer extreme hardship if the visa were denied.

Alternatively, if the parent entered the U.S. on a valid visa, they should be able to adjust their status as an immediate relative without trouble. This involves submitting paperwork and attending an interview at a USCIS office.

Deportation may be avoided based on prosecutorial discretion

In the United States, prosecutorial discretion (PD) refers to the power that U.S. immigration agencies have to discontinue working on a deportation case. It is not an immigration status but rather a legal limbo that offers limited benefits such as a potential work permit and freedom from deportation.

The U.S. government exercises PD because it has limited resources and must prioritize its efforts. Deporting an individual involves costly court proceedings, transportation to their home country, and more. By exercising PD, U.S. Immigration and Customs Enforcement (ICE) can quickly close less important cases and save time and resources for more critical matters.

ICE makes PD decisions on a case-by-case basis, focusing on individuals who are not considered a priority for deportation. Factors that may be considered in favour of PD include family ties, solid employment history, and community involvement. Conversely, a criminal record will likely count against an individual seeking PD.

It is important to note that requesting PD can be risky, and it is recommended to consult with an attorney before making such a request. A denial of PD could result in the initiation of removal proceedings. Additionally, PD does not provide any benefits beyond the avoidance of deportation, and it does not grant permission to work in the U.S. unless the individual independently qualifies for a work permit.

In the context of avoiding deportation for undocumented parents of U.S. citizens, PD may be granted as a temporary remedy. While it does not provide a path to lawful permanent residency, it can offer relief from deportation and buy time for the parents to explore other options.

Frequently asked questions