Can the Child of an Undocumented Foreign National Obtain U.S. Citizenship?

Native-born U.S. citizens are, regardless of who their parents are, granted all of the rights that every other citizen deserves such as becoming immune from deportation, assuming public office and having the right to vote. Children of undocumented (unlawful) immigrants who were, like their parents, born outside the United States have no more rights to U.S. Citizenship than their parents do. (U.S. Congress occasionally considers making changes to this, so far, no measures have been taken).

Nevertheless, children of undocumented immigrants who were born in the U.S. automatically become U.S. citizens. The parent(s) is not taken into consideration. This is due to the 14th Amendment of the U.S. Constitution, which states that:

  • All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.

Benefits to Becoming a U.S. Citizen

U.S. citizenship is the highest status available within the U.S. immigration law. As a native-born, the child in question will be granted all of the rights and privileges that every other citizen is entitled to, such as the rights to vote, presume public office and be immune from deportation or removal proceedings.

Certain People Are Trying to Do Away with the Constitutional Birthright Citizenship

There are several people in the U.S. who are of the belief that undocumented immigrants should not be given U.S. citizenship status at all. The argument is that providing such children of unlawful immigrants U.S. citizenship was not the original intent of the drafters of the 14th Amendment. Then again, the drafters did not address the topic of immigration, because at the time no restrictions existed on who could or could not enter the country. In any instance, no actual change or Constitutional amendment is in process.

Can a Child Born in the U.S. to Undocumented Parents Use His or Her Citizenship Status to Help A Parent Obtain U.S. Citizenship?

Even though the parents of U.S. citizens are considered their “immediate relatives” their children are unable to petition on behalf of their parents until they become at least 21 years of age. This is clearly a long time to wait.

Any parent that is planning to live in the U.S long term in this manner, is advised to consult with an immigration attorney, now and routinely before their child turns 21 years old. The objective is that, under the present law, if you are residing illegally in the U.S after an illegal entry, you will face many challenges when you apply for a U.S. green card through your child.

Something to note is that for an illegal entry, no one will be allowed to stay in the U.S much less apply for a lawful permanent resident status through the process known as “adjustment of status.”

An unlawful entry into the U.S. is not taken lightly by U.S. immigration laws. An illegal entry into the U.S. can affect any future nonimmigrant and immigrant applications. The disadvantage will be when you are going through a consular processing for an immigrant visa and you must attend an interview at a U.S. Embassy or U.S. Consulate in your home country. A past unlawful presence could subject you to a ground of inadmissibility popularly known as the “three and ten year time bars” whose effect is as follows:

  • Anyone who has lived unlawfully in the U.S for more than180 days and then departed the country (to attend a green card interview at a U.S. Consulate), would be penalized for the illegal stay by a three-year bar on returning to the U.S
  • If a person lived illegally in the U.S for more than a year and then left the country they would be sanctioned with a ten-year bar before being able to return

Time to Talk With an Immigration Attorney

If you have a child in the U.S and either you or your spouse are undocumented in the country, ask a seasoned immigration lawyer to help you. Do not hesitate to call Gambacorta Law Office at 847 443 9303 for assistance. Our team is ready to help guide you through every step of the way.