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According to federal regulations, individuals born to foreign diplomats who are on the Blue List are not subject to the jurisdiction of the United States and thus are not US citizens at birth.

But what would happen in the case of a child born in the US if

  1. One parent is a foreign diplomat, and the other is a US citizen?
  2. One parent is a foreign diplomat, and the other is a lawful permanent resident?
  3. One parent is a foreign diplomat, and the other has some non-diplomatic status such as F-1 student?

(Aside: The Canadian Citizenship Act is much more explicit. A person born in Canada to a foreign diplomat parent will acquire Canadian citizenship at birth if the other parent is either a Canadian citizen or permanent resident [link].)

4

As long as they have diplomatic immunity, they don't have a residency status. If either parent didn't have diplomatic immunity, then the child is a subject to the jurisdiction and they become a citizen at birth.

The short explanation with the reasoning can be found on the uscis website.

Namely

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.”

and

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.

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  • That page is not very clear about cases 2 and 3, where the other parent is a foreign citizen but not a diplomat. Apr 24 '20 at 3:06
  • 1
    @NateEldredge it is not possible for the spouse of a diplomat to be an F-1 student or to have a green card unless diplomatic immunity is waived. If diplomatic immunity is waived, the child is subject to the jurisdiction of the US and is therefore a US citizen.
    – phoog
    Apr 24 '20 at 4:53
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    @phoog: That's assuming the parents were married. It would be entirely possible for a diplomat to have a child with, say, an F-1 visa holder, without being married to them. Unless diplomatic immunity is contingent on vows of chastity? Apr 24 '20 at 5:18
  • @NateEldredge good point. The law in this area is rather conservative. In keeping with that principle I suppose the illegitimate child of a female diplomat and male student would not be a US citizen because it would enjoy immunity derived from the mother, but conversely the illegitimate child of a male diplomat and female student would be. I don't suppose that administrative practice is actually that conservative, however.
    – phoog
    Apr 24 '20 at 5:29
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    @NateEldredge these comments were too confusing, so I'll re-phrase. While the site does not list all possible combinations of cases, the main principle that it seems to suggest is that if even one parent is "subject to the jurisdiction of the United States", then so is the child. This would mean that even if one parent gave birth on the US soil, while the other one was an accredited diplomat, then the child would have the legal status of someone born in the US and "subject to the jurisdiction of the United States". So the child would be a citizen at birth.
    – grovkin
    Apr 28 '20 at 15:27
3

7 FAM 1100, archived here from an old version of the Foreign Affairs Manual from 1995, goes into detail about issues regarding birthright citizenship for children of foreign diplomats. See 7 FAM 1116.2-(2,3,4), on pages 7-10 of the PDF. Unfortunately, later versions of the Foreign Affairs Manual no longer contain this information.

The part that is relevant for your questions is in 7 FAM 1116.2-2(d)(4):

d. As a rule, children born in the United States to the following employees of foreign governments acquire U.S. citizenship:

[...]

(4) Diplomatic agents who have the children in question with U.S. citizens capable of transmitting U.S. citizenship to children born abroad. Such children acquire citizenship under pertinent law as if born abroad and would be subject to any citizenship retention requirements in effect at the time of birth;

This basically says that a child born in the US to one parent with full diplomatic immunity and one parent with US citizenship would basically be treated like a child born abroad, and would acquire US citizenship at birth if the US citizen parent meets the conditions for transmitting US citizenship to a child born abroad. So the answer to your question #1 is sometimes they have citizenship, and sometimes not. The answer to your questions #2 and #3 are implied to be no citizenship (since permanent residents and nonimmigrants cannot transmit US citizenship to a child born abroad).

I am not sure what the legal basis for this rule is. Why would a child born to a parent who can transmit citizenship be subject to US jurisdiction, while a child born to a parent who can't transmit citizenship be not subject to US jurisdiction? Or perhaps they are both not subject to US jurisdiction, and the citizenship derives from the section of law on citizenship for children born abroad to US citizen? But that section specifies "a person born outside the geographical limits of the United States and its outlying possessions", so it doesn't seem to apply to children born in the US. Or perhaps they interpreted that Congress didn't intended for children born in the US to have any less preferential treatment for acquisition of citizenship than children born abroad in the same situation, so if a child born to a US citizen and foreign diplomat would acquire US citizenship when born abroad, the child should acquire US citizenship when born in the US too.

In any case, this information is only from a manual (and an outdated version of the manual at that), not from a law or even a regulation, so it is not very authoritative.


By the way, there is another even more outdated reference on this. In the old INS interpretations on nationality law, Interpretation 301.1(b)(2), regarding the law on citizenship for children born abroad prior to 1941, contains this interesting sentence:

Under the above rules, a child acquired citizenship at birth in Puerto Rico, 26/ Guam, American Samoa, Swain's Island, Philippine Islands, 27/ Alaska (before March 30, 1867), Hawaii (before August 12, 1898), Virgin Islands (before February 25, 1927), the Canal zone (before August 4, 1937), in any foreign country, and even in the continental United States, 28/ provided, in this last instance, that the child had an alien parent who was a foreign diplomatic officer duly accredited to the United States.

The last part seems to describe the same principle (albeit before 1941) that children born in the US to foreign diplomats with diplomatic immunity can acquire US citizenship through the rules for children born abroad, even though the law before 1941 (like the current law) does not explicitly provide for that. Footnote 28 says "Application of Baron , CO 341-P (1961)." I can't find information on this; perhaps someone else can.

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  • This is truly weird. It seems to assume that the US national spouse of a foreign diplomat has some sort of special status in the US as compared to other US nationals. They don't.
    – phoog
    Jul 27 at 23:31
  • On further reflection, I suppose it's a chicken-and-egg thing relating to the child's status. If (and only if) the child acquires US citizenship at birth, the child does not enjoy immunity, and is subject to US jurisdiction. Because being subject to US jurisdiction controls whether the child acquires US citizenship, and acquiring US citizenship controls whether the child is subject to US jurisdiction, we have a conundrum. The way out of that is through the birth-abroad rules.
    – phoog
    Jul 27 at 23:43
  • On the subject of birth in territorial waters, FAM indicates that there was a review in 1994-1995. I suspect that the same review led to the purposeful deletion of the passage cited here because (I further suspect) the review determined that the policy outlined there was incorrect.
    – phoog
    Aug 20 at 4:12

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