The world found out that Harry and Meghan, the Duke and Duchess of Sussex, have just welcomed a baby boy. However, there seems to be a bit of confusion about whether or not this baby boy is a U.S. citizen. The news alert from the Washington Post about this happy event reads: “Because Meghan, a California native, retains her U.S. citizenship while waiting for her British citizenship to be approved, the baby is eligible for U.S. citizenship, as well.” The actual article then seems to clarify, and potentially muddle it further, by stating: “Meghan, a California native, remains a U.S. citizen while waiting for her British citizenship to be approved. And so the baby is half-American and may choose to hold dual nationality.” That seems to suggest that the baby’s U.S. citizenship is somehow contingent on Meghan’s pending British citizenship.
Why is this all so confusing? The answer is that automatic acquisition of U.S. citizenship at birth by a foreign-born child is actually pretty complicated. For such a child, acquiring citizenship at birth is dependent on the law in effect on the date of the child’s birth. In addition, the U.S. citizen parent must reside or be physically present in the U.S. for certain periods of time prior to the birth of the child in order to “transmit” citizenship. For an in-wedlock birth abroad to U.S. citizen parent and foreign parent, five separate laws apply, all depending on when the baby was born. Other separate laws apply if the child was born in-wedlock abroad and both parents are citizens. What if the parents were not married at the time? Then, you are opening up a new can of worms as different laws apply to an out-of-wedlock birth. For an out-of-wedlock birth, you would then examine if the U.S. citizen parent is the mother or the father, or both. The U.S. citizen father has the higher burden for an out-of-wedlock birth as he would have to prove physical presence in the U.S. and a blood relationship and legitimation/paternity under INA 309. In addition, a foreign-born child can also make an after-birth claim to automatic acquisition of citizenship before the age of 18 if one or both parents become naturalized U.S. citizens under INA 320. Is every non-immigration-attorney completely confused by now? USCIS has a webpage that explains some of this but it’s a complex area of law.
For the royal baby in question, the answer is pretty simple and sweet. Under INA §301(g), a child is a citizen at birth if born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years. Meghan Markle and Prince Harry are clearly married, and Meghan was born in California and lived most of her life in the United States prior to marrying Harry and moving to the U.K. This constitutes U.S. citizenship for the royal baby.
Phew. Why is automatic citizenship important? It is generally nice to have a U.S. passport for foreign travel. It’s especially nice if you are born in a country whose citizens generally need visas to travel. But along with that benefit comes something of a responsibility: paying U.S. taxes. IRS law dictates that if you are a U.S. citizen or resident alien, the rules for filing income, estate, and gift tax returns and paying estimated tax are generally the same whether you are in the United States or abroad. Your worldwide income is subject to U.S. income tax, regardless of where you reside.
You do see situations where a person becomes an adult not knowing that he or she is a U.S. citizen. Reality can come crashing down to the ground for that person when the IRS send a bill for both current and back taxes. Those citizens often end up renouncing U.S. citizenship through a formal application process at a U.S. embassy to avoid paying those taxes.
I do not know if there are marital property laws in England that would subject Prince Harry to U.S. income taxes. It seems unlikely that he would encourage Meghan to renounce her citizenship–the couple has indicated they want to live in the U.S. one day. But I do wonder about the PR aspect of the IRS sending Prince Harry a tax bill…
Regardless, automatic acquisition of citizenship can be hard to navigate; I have experienced it firsthand. I was born in Los Angeles but found out after I became an immigration lawyer that I am a British citizen at birth. Thankfully, the English taxman is a bit nicer than the U.S. taxman, so I will be holding onto my British passport for a while. But take it from me—it might behoove you to check in with an immigration lawyer somewhere down the line!
Congratulations to the family as they welcome their new arrival!