Foreign-born Children of Same-Sex Couples
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
Last updated: August 16, 2021
UPDATE: On May 18, 2021, the U.S. State Department ended its discriminatory policy of refusing to recognize the birthright citizenship of the children of many married same-sex couples born abroad. Similarly, on August 5, 2021, U.S. Citizenship and Immigration Services (“USCIS”) ended its equivalent domestic policy issuing new guidance which ensures, finally, that the rights of these families will be upheld and respected.
Under the prior policy, both USCIS and the State Department treated the children of same-sex married couples as “born out of wedlock,” despite the fact that they were born during the pendency of their parents’ marriage. As such, in assessing a child’s eligibility for birthright citizenship, they enforced a requirement, only applicable to children of unwed parents, requiring proof of the child’s biological connection to their U.S. citizen parent. The unlawful and discriminatory policy resulted in the denial of countless citizenship applications of children of binational same-sex couples (i.e. in which one spouse is a U.S citizen and the other a foreign national) whose biological relationship was with their non-U.S. citizen parent.
With the policy change, children born abroad to married parents, at least one of whom is a U.S. citizen, are citizens at birth, if they have a biological relationship to any one of their parents. Children who meet these requirements and are applying outside the US will be issued a Consular Report of Birth Abroad by the State Department, while families that are currently in the US can obtain the domestic equivalent from USCIS, namely, a Certificate of Citizenship.
For USCIS’ full statement on the new policy, see here: https://www.uscis.gov/sites/default/files/document/policy-manual-updates/20210805-AssistedReproductiveTechnology.pdf.
For the State Department notice on its policy change, see here: https://www.state.gov/u-s-citizenship-transmission-and-assisted-reproductive-technology/.
USCIS has also updated its policy manual to reflect the new changes and, among other things, now defines “child” to include the child of a U.S. citizen parent who is married to the child’s genetic or legal gestational parent at the time of the child’s birth if both parents are recognized by the relevant jurisdiction as the child’s legal parents. A copy of USCIS’ updated manual can be found here: https://www.uscis.gov/policy-manual/updates.
Moreover, eligible children who had their applications for a Certificate of Citizenship previously wrongfully denied may file a motion to reopen or reconsider the denial.
Immigration Equality had been fighting this discriminatory policy for years filing the first of our lawsuits against the State Department in 2018, and is thrilled that both USCIS and the State Department have finally eliminated it. The elimination of the policy, while long overdue, is a victory for LGBTQ families and we celebrate with all of them.
Last updated: June 3, 2020
What is Birthright Citizenship?
Birthright citizenship refers to the right of certain people to be recognized automatically as citizens at the moment of their birth. All children born in the United States are accorded birthright citizenship through the Fourteenth Amendment to the US Constitution. However, in order for a child born outside of the United States to be accorded birthright citizenship, the child must have at least one parent who is a US citizen at the time of the child’s birth. That parent must also satisfy certain US residency requirements.[1]
There are different requirements in proving a parental relationship to a child depending on whether the child is born to married parents (i.e. born in wedlock) or unmarried parents (i.e. born out of wedlock). Stricter requirements apply if the child is born out of wedlock. In order to qualify for citizenship, non-marital children must show that they have a biological connection to a US citizen parent.
Will our child born during our marriage be considered born “in wedlock”?
Under long established law, when a married couple have a baby during the course of their marriage, that child is presumed to be a product of the marriage (i.e. born “in wedlock”). This is called the marital presumption of parentage. And, even in cases where there is no biological link to both parents (or either parent), the marital presumption of parentage generally applies. This presumption exists for both different-sex and same-sex parents.
Therefore, for married couples, all that the law requires to establish parentage is that the couple prove that they became parents during a time when they were married (i.e. the child was born in wedlock). As such, for a child born outside of the United States, a couple’s marriage license and a child’s birth certificate listing the two parents as birth parents (at least one of whom is a US citizen) should be sufficient to obtain a U.S. passport. However, under its current policy, the State Department is unconstitutionally requiring a child born outside of the United States to married parents to have a biological connection with both of the child’s married parents. If a child is not biologically related to both parents, the State Department considers the child to be born “out of wedlock.”
The State Department’s policy is unconstitutional because it routinely declares the children of married same-sex couples to be “born out of wedlock.” The State Department then reviews a claim of birthright citizenship as if it were put forward by an unwed single parent. The policy is also unconstitutional because, by routinely classifying the children of same-sex married couples as non-marital children, it denies the validity and equality of same-sex marriages.
What are the consequences of my child being declared born “out of wedlock”? Will my child receive birthright citizenship?
It depends. Whether or not your child will be recognized as a citizen at birth under the current State Department policy depends on the individual facts of your case and for specific advice you should consult with an experienced immigration attorney.
For married male couples, in order for the State Department to recognize birthright citizenship for a child, the US citizen father will have to show the existence of a blood relationship between himself and his child. More onerous US residency requirements may also apply. If the US citizen father cannot meet these requirements, the State Department will deny that the child has a right to birthright citizenship.
Similarly, for married female couples, in order for the State Department to recognize birthright citizenship, the US citizen mother must show that she is either the genetic or gestational mother of the child. If the mother is the gestational mother of the child, she must also prove that she is the legal mother of the child. More onerous US residency requirements may also apply. If the US citizen mother cannot meet these requirements, the State Department will deny that the child has a right to birthright citizenship.
For further guidance on how the policy might affect your child’s ability to claim birthright citizenship, see the following chart.
What Can I Do If I Think My Child Was Wrongfully Denied Birthright Citizenship?
Because the State Department has refused to change its discriminatory policy, we have sued the agency in district courts in California, DC, Maryland, and Georgia.
In the first of our cases–the Dvash-Banks case–the district court rejected the State Department’s application of the law and declared Ethan Dvash-Banks to be a citizen from birth.
While the district court rejected the State Department’s application of the law, it tailored the decision narrowly. That is, even though the court referred to the State Department’s reasoning as “strained,” it did not go so far as to strike down the policy altogether. This approach is fairly common among federal courts, most of which will avoid addressing due process or constitutional questions if there’s a simpler way to give a winning party what they ask for. Here, the court decided that declaring Ethan to be a citizen was sufficient to resolve his case.
The State Department has appealed the decision, which will now go to the U.S. Court of Appeals for the Ninth Circuit. The other three cases Immigration Equality has brought are still pending.
Therefore, as of right now, the State Department is continuing to refuse to recognize the citizenship of the children of same-sex married couples born outside of the US if they cannot demonstrate a biological link to a US citizen parent who also meets certain residency requirements.
Because the policy is unlawful, unconstitutional, and wrong, we are determined to fight it until it is struck down or the State Department voluntarily changes its policy.
To learn more about the Dvash-Banks case and our other cases, click here. In the meantime, if you think that your child may have been wrongfully denied birthright citizenship you should consult with an experienced immigration attorney who can advise you on the best options available to your family in light of the individual facts of your case. It may also be that your family has other immigration options, apart from birthright citizenship available, such as naturalization, lawful permanent residence, or derivative citizenship. You should consult a qualified immigration attorney to discuss these options and see whether any of them may be available to you.
[1] For children claiming citizenship through their fathers the length of U.S. residency depends on whether one or both parents are US citizens. For couples where one parent is a US citizen and the other parent is a non-citizen the law requires that the US citizen parent was physically present in the US for at least 5 years (including at least 2 after the parent reached the age of 14) prior to the child’s birth. However, for couples where both parents are US citizens the law only requires that at least one parent had resided in the U.S. at any time prior to the child’s birth.
The residency requirement for children claiming citizenship through their mother depends on whether the child was born in or out of wedlock. For children born in wedlock to two US citizen parents, a parent need only show that they resided in the US at any time prior to the birth of the child. However, for children born out of wedlock to two US citizen parents the residency requirement is more onerous. For children born before June 12, 2017, the US citizen mother through whom the child claims citizenship must show that she was physically present in the US for one continuous year prior to the child’s birth, and for children born on or after June 12, 2017, she must show that she was physically present in the US for at least 5 years (at least 2 of which must be after she reached the age of 14) prior to the child’s birth. Note that the residency requirement for a child born in wedlock to couples where one parent is a US citizen and the other a noncitizen, is also 5 years.
The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.
