Theresa and her husband Anthony grew up in a small town in Mexico. They always had the lifelong dream of going to the United States, where people are living a better life. Most of all, Theresa and Anthony want to have kids, but they also want their kids to live the good life from the beginning and enjoy the education system in the United States.

Nine months ago, Anthony and a group of young people from his village crossed the U.S.-Mexican border and entered the United States. He soon settled down and started working. He decided to convince the nine-month pregnant Theresa to join him in the United States. She agreed and crossed the border with a group of people in the desert. Unfortunately, just as they approached the border, they spotted a team of American border guards on patrol. Pandemonium followed and people ran in all directions. Encouraged by the hope of seeing her husband again, Theresa rushed towards the border. Right after crossing the border, Theresa began to feel strong contractions and then lost consciousness. She woke up in an ambulance with a crying baby beside her. She had been rescued by the American patrol guards. She was informed by an immigration officer that she would be deported soon. However, her baby, born on American soil, was an American citizen and could live in the United States. According to the 14th Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”. Consequently, although Theresa knows she will soon be deported, she is still very happy that her American dream will soon be realized by her baby.

Actually, the scope of the United States goes beyond the 50 states and includes U.S. territories. According to the Constitution, a U.S. territory is any extent of region under the jurisdiction of the federal government of the United States, including all waters (around islands or continental tracts) and US embassies and consulates. It also includes any airplane or ship that is registered in a state of the United States. For example, if a baby was born on a cruise boat floating in the Caribbean, but the boat flies an American flag and is registered in Florida, the baby is a U.S. citizen. Interestingly, the GOP presidential candidate, John McCain, was born in an Air Station at the Panama Canal Zone, which was under American control at the time of his birth. He is definitely considered a natural-born American citizen.

In American immigration law, many regulations are based on birth country and territory instead of citizenship. For example, the availability of immigration visa numbers is based on the country of an alien’s birth—not the country of citizenship. Thus, if an alien was born in India, but later received Canadian citizenship, his or her visa number availability is still determined by India’s quota. No change in citizenship affects that alien’s cut-off date in the current visa bulletin. An exception is Chinese aliens born in Hong Kong. They are not subject to the China visa quota because Hong Kong was formerly a British colony and currently is a special administrative region of China.

Nevertheless, some immigration benefits are based on the citizenship rather than country of birth. For example, the TN visa allows Mexican and Canadian citizens, regardless of birth country, to work in the United States in a specific set of designated professions. Similarly, the Visa Waiver Pilot Program is also based on citizenship rather than country of birth. The Visa Waiver Pilot Program allows foreign nationals from certain countries to be admitted to the United States without a visa for 90 days or less for business or pleasure purposes. Countries currently in the program include Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, The United Kingdom, and Uruguay. Under this program, even though China is not included on the list, a China-born Australian citizen could take advantage of the Visa Waiver Pilot Program because Australia is his country of citizenship.

Thus, birth country and citizenship play different roles in American immigration law, depending on the circumstances.

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At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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*This article is based on the state of the law as of the posting date. It is the responsibility of the reader to verify that the law has not changed by consulting an attorney, although Zhang and Associates will make every effort to ensure that our articles are updated periodically.