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If you immigrate to the USA, will the baby get automatic citizenship? Wouldn't that kind of be a loophole?

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8 Answers 8

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Yes, the Fourteenth Amendment makes a person born on U.S. soil a U.S. citizen at the moment of birth.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.

This is not a "loophole," because it is exactly what the drafters of the Fourteenth Amendment were trying to achieve.

There are narrow exceptions because of the "subject to the jurisdiction thereof" clause:

The children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. ... Thus the children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.

Inglis v. Trustees of Sailor's Snug Harbour, 28 U.S. 99, 155-56 (1830).

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    It's not so clear-cut that they were trying to make it easier for the children of immigrants to get citizenship. You have to remember that it was ratified in 1868. The big subject of the day was how to handle citizenship of former slaves.
    – Ryan_L
    Apr 15, 2023 at 1:36
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    @Ryan_L The supreme court decided (6-3) to interpret it literally, but if 2 members had been different, or if it's re-examined in the future, they could rule that the intent of amendment was that "and subject to the jurisdiction thereof"=="not subject to any foreign power, excluding Indians not taxed"(native Americans weren't US citizens until a separate act of Congress the 1920s because they were citizens of their own nations), then anyone already a foreign subject because of inherited citizenship, would not be born a US citizen.
    – Eugene
    Apr 15, 2023 at 6:00
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    @Eugene The Supreme Court won’t do that. “Maybe the Supreme Court will overturn two hundred years of law in a way that causes huge problems,” is pure wishful thinking. You can always say, “Maybe the law will change in the future! Someday!” Or maybe they’ll rule that AIs are people guaranteed citizenship under the Fourteenth Amendment. That’s irrelevant to what the law is now.
    – Davislor
    Apr 16, 2023 at 1:58
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    @Davislor they overturned Plessy v. Ferguson and Dredd Scott.
    – Ryan_L
    Apr 16, 2023 at 2:04
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    @Davislor given what the current supreme court has already overturned, never say never. I was just pointing out that there are other interpretations of the 14th amendment out there.
    – Eugene
    Apr 16, 2023 at 3:28
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Not a loophole but the intent of the constitution.

Fourteenth Amendment, Section 1: 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.

It might seem odd to you because many other countries are less generous with their citizenship.

Do note the caveat. It means children born to foreign diplomats do not get automatic citizenship.

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    And children belonging to invading armies, I believe. Not sure when this happened the last time.
    – gnasher729
    Apr 14, 2023 at 15:32
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    @gnasher729 Several thousand Japanese troops invaded Alaska during WWII and remained for about a year, though I don't know if any women were among the invading force. Most recent time before then would've been 1812.
    – TylerH
    Apr 14, 2023 at 15:54
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    Hey, I learned something new!
    – gnasher729
    Apr 14, 2023 at 22:50
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    @TylerH Of course, the 14th Amendment didn't exist in 1812. To my knowledge there are no instances of anyone who is part of an invading army giving birth in the United States ever since the 14th Amendment was adopted. Incidentally, there is also a statutory provision that also gives citizenship to people in the position of Clark Kent a.k.a. Superman who are found unaccompanied in the U.S. at a very young age when the circumstances of their birth and parents are unknown. The Indians not taxed exemption from birthright citizenship was repealed by statute in 1924.
    – ohwilleke
    Apr 15, 2023 at 0:58
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    To be exact, children born to foreign diplomats currently serving and enjoying diplomatic immunity are not eligible to gain citizenship through the 14th Amendment. It does not preclude deriving citizenship through the other parent if they are a US citizen, nor does it concern anyone who has a parent that held a diplomatic post but at the time of birth was a private citizen. Likely the bar extends to the sovereign of another nation is also covered under this and not just their official representatives but we really haven't tested that part legally.
    – Jim Zhou
    Apr 15, 2023 at 15:41
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Yes, children born in the territory of the United States automatically become U.S. citizens by the 14th Amendment.

It is not a "loophole" in that, while the child is a U.S. citizen, their parents can still be deported.

The U.S.-born children of immigrants cannot sponsor their parents for a green card until they are at least 21 years of age or older. Source

As a citizen of the United States, you may help a relative become a lawful permanent resident of the United States by obtaining what is often referred to as a “Green Card.” To do so, you need to sponsor your relative and be able to prove that you have enough income or assets to support your relative(s) when they come to the United States.

If eventually granted a green card, the parents must be a permanent resident for five years before they can apply for naturalization or be a permanent resident for at least 3 years and married to a US citizen (who is not your descendant). Source

A common (derogatory) term for this is "Anchor Baby".

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  • "children born in the territory of the United States". You have to be careful with that phrasing because a "territory of the United States" means something different. A territory is a non-state area, like Puerto Rico. Those are not subject to the 14th Amendment. Citizenship has been statutorily granted to people born in most of the inhabited territories, the outlier is currently American Samoa. There people born there do not gain US citizenship absent any other means of claim, but rather US nationality.
    – user71659
    Apr 19, 2023 at 19:25
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Unfortunately yes. My daughter did not have the choice and became a citizen of this country. Now 30 years later she has lots of problems because of that citizenship. There is an association called Accidental Americans working for those citizens who do not want being citizens of the US. Check out the wiki page for Accidental Americans. Repudiating this citizenship is not easy and quite expensive.

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    The edit by @sfxedit is incorrect. For a person born in the US who's parents are not foreign diplomats, citizenship is automatic at birth, and the procedure to renounce it is elaborate. Apr 15, 2023 at 17:15
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    @GerardAshton I looked it up and you are partly right. Parents cannot decide the citizenship of the kids. What my friends probably meant was how easy India makes it to opt for indian citizenship, once the kid turn 18, if the parents follow some simple procedures after their birth. More info here - Indian Citizenship for US Born Child.
    – sfxedit
    Apr 15, 2023 at 17:23
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    @sfxedit that doesn't mean the child loses their US citizenship, which is extremely hard and expensive to get rid of. They'd end up most likely with dual citizenship and having to pay income tax in 2 countries (which is one of the main disadvantages of US citizenship when living abroad with dual citizenship).
    – jwenting
    Apr 16, 2023 at 17:11
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    @sfxedit :) Netherlands too doesn't allow dual citizenship UNLESS it's impossible or extremely expensive (as with the US) to denounce your other citizenship. So there are dual Dutch/US citizens. Many countries have similar provisions (one of my friends is dual Japanese/US for example, despite Japan not allowing dual citizenship).
    – jwenting
    Apr 17, 2023 at 7:40
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    @jwenting I wouldn't say that. While for the Netherlands single citizenship is the norm, there are many exceptions that allow dual citizenship and it's not only in impossible or expensive cases. Some of them are a bit weird, like for example, I'm a Dutch person living in Denmark right now. If I would apply for Danish citizenship I would normally lose my Dutch one yes. But if I were to marry my Danish girlfriend first and then apply for Danish citizenship I will keep my Dutch citizenship
    – Ivo
    Apr 17, 2023 at 7:55
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That all those born in the US having citizenship being a constitutional right is generally based on the Fourteenth Amendment, which says "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." There is some debate as to what exactly the "subject to the jurisdiction thereof" qualification means. It has been interpreted as not granting citizenship to the children of parents who have diplomatic immunity, and there are some of the position that it also requires the parents' presence in the US to be legal, and/or open and notorious, but that view has little support in the legal community. There is also the issue of what counts as "the United States". While people in America Samoa are US nationals, courts have denied them citizenship. https://en.wikipedia.org/wiki/American_Samoan_citizenship_and_nationality#Federal_citizenship_controversy_(1960%E2%80%93present)

There are indeed people who travel to the US late in their pregnancy specifically to give birth in the US and thus have their children be US citizens. See https://en.wikipedia.org/wiki/Birth_tourism . There is also the term "anchor baby", which is generally used in a derogatory manner to refer to children of immigrants who were born in the US (though not necessarily implying that the parents immigrated for the purpose of having the child in the US).

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  • "there are some of the position that it also requires the parents' presence in the US to be legal": none of those people are judges, however. Supreme court precedent on this matter is clear. American Samoans are also denied US citizenship not so much by courts as by Congress; the courts are just upholding the statutes. Those born in outlying US territories do not gain citizenship under the 14th amendment; this is also clear. Territories where people acquire citizenship by birth are covered by statutory provisions in the Immigration and Nationality Act.
    – phoog
    Apr 17, 2023 at 15:19
  • Also "anchor baby" refers to children of nonimmigrants (usually nonresident nonimmigrants, typically tourists) or illegal immigrants; there's no point in creating a so-called anchor if you're already a legal immigrant.
    – phoog
    Apr 17, 2023 at 15:25
  • "American Samoans are also denied US citizenship not so much by courts as by Congress; the courts are just upholding the statutes." Statutes cannot override the constitution, so if "United States" in the 14th amendment included all territories, then people born in all territories would be US citizens, regardless of what statutes say. And what constitutes the "United States" in the 14th amendment is a matter of interpretation, since it is not defined explicitly. The current understanding is that it doesn't include unincorporated territories, but the courts could interpret it differently.
    – user102008
    Apr 17, 2023 at 18:32
  • @user102008 good point. The statutory provisions do indeed depend on the court's finding that the territories in question are not "the United States" in the sense of the 14th amendment (the "insular cases" if I understand correctly). It is only in the context of that decision that congress has the power to grant citizenship to the people of those territories or to withhold it from them.
    – phoog
    Mar 2 at 7:28
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IANAL, and this has already been well answered legally, but I wanted to give a personal example for historical context.

My aunt's parents emigrated to the U.S. from Italy in 1934, having delivered their oldest son on the ship while crossing the Atlantic from Italy, and my aunt was born a year later (1935) in New Castle PA. Her older brother was thus not born in the U.S. and had to apply for citizenship years later. My aunt, on the other hand, was a citizen by birth, even though her parents had not yet become citizens themselves and she never had to apply for it.

My point being that this is nothing new or special in America, it has been going on for hundreds of years and has applied to many hundreds of thousands of citizens, new-born to parents who were not citizens.

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  • "it has been going on for hundreds of years": indeed, it was the rule under common law for centuries before the US came into being. It's clear from the debates around the 14th amendment that legislators understood it to be extending that rule to all people regardless of race (while preserving the ancient exceptions for foreign diplomats and occupiers). (The UK restricted its jus soli in the early 1980s; until then it was basically the same.)
    – phoog
    Mar 2 at 7:02
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It seems worth mentioning that birthright citizenship in the United States is part of the aftermath of the Civil War of 1861–1865. Part of the outcome of the war was the abolition of slavery. Earlier the Supreme Court had ruled in the case of Scott v. Sandford that negroes are not citizens, regardless of whether they are enslaved or not. Everything about the status of persons of African descent was a big issue in the aftermath of the war. Before that, different states had different laws about who was a citizen, although there were also federal naturalization laws. The 14th Amendment was intended to supersede much of that.

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Correct, as stated on the IRS.gov. Amendment XIV, Section 1, Clause 1 of the U.S. Constitution directs that all persons born in the United States are U.S. citizens. This is the case regardless of the tax or immigration status of a person's parents.

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