Revised Policy on US Birthright Citizenship Abroad
Posted by chapteradmin on Jun. 2, 2021 / Legal Updates / Subscribe 0
By Alexandra LaCombe, Jackson Lewis, P.C.
At a glance
US Department of State recently revised and updated its interpretation of how US citizenship can be acquired at birth by children born abroad to US citizen parents. This marks a significant step in recognizing advances in assisted reproductive technology and acknowledging an expanded definition of what constitutes a family under US laws.
Background
The Immigration and Nationality ACT (“INA”), enacted in 1952, addresses birthright US citizenship in Section 301. Until now, the relevant language has been interpreted that children born abroad can only acquire US citizenship if they have a genetic or gestational relationship to a US citizen parent. Recognizing the advances in assisted reproductive technology (“ART”), the US Department of State (“DOS”) recently announced an updated interpretation of the requirements for acquisition of US citizenship at birth. Children born abroad to married parents at least one of whom is a US citizen will be US citizens at birth if they have a genetic or gestational tie to at least one of the parents—not necessarily the US citizen parent. (Of course, other INA requirements still have to be met).
According to the DOS, this updated interpretation and application of the INA takes into account the realities of modern families and advances in ART since the enactment of the INA almost 70 years ago. While specifically not a new law, it is a distinct policy change.
This change, which has already been implemented and is retroactive, contemplates a smoother path to US citizenship transmittal for both same-sex and heterosexual couples who use ART, including surrogacy. The DOS was recently sued by a number of same-sex couples whose children were denied birthright citizenship because they were considered “born out of wedlock” and ineligible for citizenship. It is important to note that the policy on citizenship for children born to unmarried parents remains so far unchanged.
This change is consistent with both President Joe Biden’s and Secretary of State Antony Blinken’s promise to make LGBTQ equality a priority in foreign policy.
What it means for employers
This change will allow increased numbers of married couples, at least one of whom is a US citizen, to transmit US citizenship to their children born abroad. All US diplomatic posts have been informed of the new policy, which is retroactive to the passage of the INA. Employers who have US citizens working either on foreign assignments or on local foreign contracts who have children via ART might be looking for guidance regarding the status and citizenship benefits of their children born abroad. It is important for employers to be aware of this new policy that will provide significant benefits to its US citizen employees.
If you need assistance with this, or any other immigration issue, please contact the author, Alexandra LaCombe, at (248) 936-1929 or [email protected]. Alexandra is a Member of the Legal Affairs Committee of Detroit SHRM and a partner at Jackson Lewis, P.C.
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2021
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