Indian citizen baby born in US - have others had this situation?
- Thread starter tamtom
- Start date
envision said:Huh? The kid was born in the US , how exactly are you careless giving up her Indian citizenship? If you were that concerned about this issue why didn't you go back to India foryour child to be born in the first place?
As we mentioned in the start of the thread, she was born with Indian citizenship through her parents and has an Indian passport. Being born in the US did NOT make her lose Indian citizenship.
Tamtom
leonidas666
Registered Users (C)
Same Problem here, maybe you can comment on my findings
Hi there,
I'm having a similar problem. I'm german, my wife is from india, we're living in germany, baby is due in January
I believe the best for my baby would be to have both a german and a indian passport. So i read the Indian Citizienship Act very carefully, this is what i found:
I think it basically means that if one parent is indian, then the child is also indian.
Then there's another section:
So one could think that if the parents make the baby the citizen of another country (in my case germany), the baby would cease to be a citizen of india. However, if you read it carefully it says:
So the question is what does "voluntarily" mean. I have not checked the USA Law, but as far as i understand it USA considers anybody born in USA to be a citizen (at least as long as that person has not reached 18 and is actively denouncing the USA citizenship), whether that person likes it or not, and whether the USA authorities actually issue a passport or not. So this "acquiration" of USA citizenship can be hardly called "voluntarily", and therefore a baby born to indian parents in USA is citizen of USA and India (as i understand the law, but i am not a lawyer). I have a very similar situation with the german law.
I believe to actually get the indian passport the parents have to sign a affidavit saying that they are not applying for another citizenship for their baby. I think it would be a true statement to sign such a affidavit even if the baby already got a USA Passport, since you are not "applying" for another citizenship, the baby already has both citizenships from birth.
So will the people in the embassy follow this reasoning? Most probably not, but i think it is time to sue them if they don't follow the law.
I will do some more research, and i will also talk to the indian embassy here in germany (however, my experience with trying to talk to people in embassies, german or indian, was very frustrating so far...), but i think most probably in the end i'll have to sue them (or at least talk to a lawyer about it).
Naturally, i would be very happy about comments on my analysis of the laws, and of course i would be very interested if more people would share their experience they had with cases like this.
Hi there,
I'm having a similar problem. I'm german, my wife is from india, we're living in germany, baby is due in January
I believe the best for my baby would be to have both a german and a indian passport. So i read the Indian Citizienship Act very carefully, this is what i found:
I think it basically means that if one parent is indian, then the child is also indian.
Then there's another section:
So one could think that if the parents make the baby the citizen of another country (in my case germany), the baby would cease to be a citizen of india. However, if you read it carefully it says:
So the question is what does "voluntarily" mean. I have not checked the USA Law, but as far as i understand it USA considers anybody born in USA to be a citizen (at least as long as that person has not reached 18 and is actively denouncing the USA citizenship), whether that person likes it or not, and whether the USA authorities actually issue a passport or not. So this "acquiration" of USA citizenship can be hardly called "voluntarily", and therefore a baby born to indian parents in USA is citizen of USA and India (as i understand the law, but i am not a lawyer). I have a very similar situation with the german law.
I believe to actually get the indian passport the parents have to sign a affidavit saying that they are not applying for another citizenship for their baby. I think it would be a true statement to sign such a affidavit even if the baby already got a USA Passport, since you are not "applying" for another citizenship, the baby already has both citizenships from birth.
So will the people in the embassy follow this reasoning? Most probably not, but i think it is time to sue them if they don't follow the law.
I will do some more research, and i will also talk to the indian embassy here in germany (however, my experience with trying to talk to people in embassies, german or indian, was very frustrating so far...), but i think most probably in the end i'll have to sue them (or at least talk to a lawyer about it).
Naturally, i would be very happy about comments on my analysis of the laws, and of course i would be very interested if more people would share their experience they had with cases like this.
But what about German Law
The problem as pointed out earlier is that as per US Constitution (14th Amendment), anyone born in the US is a US Citizen. This can not be taken away unless voluntarily given up (& some special cases). Probably this sets the US apart from others (eg. UK does not award citizenship by birth). Also causes problems such as stated in this thread, where by leaving or entering US on any other passport without voluntarily giving up USC causes problems.
Is this true for Germany? Does one acquire German Citizenship by birth?
I still maintain that in such cases acquiring OCI/PIO is a practicle solution until the child become old enough to opt for Indian Citizenship. Alternately, plan for the child to be born in India, if possible. Hopefully, your child can derive German citizenship through you even if s/he is born outside Germany
The problem as pointed out earlier is that as per US Constitution (14th Amendment), anyone born in the US is a US Citizen. This can not be taken away unless voluntarily given up (& some special cases). Probably this sets the US apart from others (eg. UK does not award citizenship by birth). Also causes problems such as stated in this thread, where by leaving or entering US on any other passport without voluntarily giving up USC causes problems.
Is this true for Germany? Does one acquire German Citizenship by birth?
I still maintain that in such cases acquiring OCI/PIO is a practicle solution until the child become old enough to opt for Indian Citizenship. Alternately, plan for the child to be born in India, if possible. Hopefully, your child can derive German citizenship through you even if s/he is born outside Germany
leonidas666 said:
Here is where your logic breaks down. The Indian rules consider the act of taking a foreign passport to be a voluntary one confirming the choice of the other country's citizenship, and at that moment the baby will lose Indian citizenship.
So, if you don't get the baby a German passport, it will keep Indian citizenship. I'm not familiar with German laws to know whether there will be any issues when traveling between the two countries if you do so.
leonidas666 said:
Such a suit was tried in a well-known case in the 1960's, and the Indian Supreme Court decided that it is proper to consider the acquisition of a foreign passport to be voluntarily acquiring the other citizenship.
In our case, India and the US developed their laws independently of each other, leading to the unintended consequence of preventing a certain class of Indian citizens from traveling freely between the two countries. Our task is to bring this issue to the attention of the authorities so they can negotiate a solution.
Don't hold your breath--- no one will dare mess with the constitution. Not that this matters here, but I've seen parents of kids who were born in the US deported and the kids kept in foster care. Bottom-line , regardless of the parents nationality the kids are American and the authorities won't allowed them to leave the country without a US passport.
envision said:
The requirement to use a US passport is not in the constitution, it's in legislation. And the legislation does permit the US State Dept. to grant waivers of the passport requirement, with no change in law whatsoever. However, acting alone, we have not been able to persuade them to grant us one.
--Tamtom
I stand corrected, however I don't see this as a big enough issue to be given any attention. Well, unless republicans bring it to the forefront---and I doubt they will considering there is no profit to be made Anyway, I still believe this decision should be left to the kid to make on her 18th birthday
Anyway, I still believe this decision should be left to the kid to make on her 18th birthday envision said:I stand corrected, however I don't see this as a big enough issue to be given any attention. Well, unless republicans bring it to the forefront---and I doubt they will considering there is no profit to be made
How important it is depends on the relations between the two countries. For example, the US and China do have a consular convention which allows persons which both countries claim as their citizens, to leave the US on their Chinese passports.
As for the kid making her choice at 18, that argues for preserving her Indian citizenship. If we give it up for her now, and she wants it back at 18, the choice will be in the hands of the Indian government.
--Tamtom
leonidas666
Registered Users (C)
Some more research...
Ok, i made some more research.
(Disclaimer: I am not a lawyer. The reasoning in this text is purely based on common sense.)
The citizenship act , which can be found here
http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=410520784
( The homepage of the ministry of home affairs links to this pdf
http://mha.nic.in/acts-rules/ic_act55.PDF
however, the first one seems to be more complete with regards to the amendments, i believe the first pdf is in fact the law currently in effect)
leaves the decision whether a acquisition of a citizenship was voluntarily or not up to the center government.
This is what this quote from the citizenship act means:
Now the government of India basically set up a catalog of rules, according to which such questions should be decided. There is a judgment from 1962, which can be found here:
http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=3963
Besides other things. this Judgment also refers to a rule from this catalog saying:
http://mha.nic.in/acts-rules/ic_rule56.pdf
this rule was removed. Therefore obtaining a passport is NOT anymore conclusive proof that the citizenship was voluntarily acquired. However, when a person has two citizenships that person has to proof that he did not acquire the foreign one voluntarily, i.e. the burden of proof is on the person.
However, the website from the Indian home ministry says at
http://mha.nic.in/citi-susp.htm
that a baby will only be a citizen of India if either parent is Indian and the birth is registered within one year at an Indian embassy. This section also includes the clause:
In fact, it seems this kind was procedure was already anticipated, if not wanted by the recent amendments to the Citizenship Act, because the latest version of the law also has the following clause:
Some people think that it is written down in the Indian law that it is not possible that a Indian citizen is having another passport. This is not the case (i challenge anybody who thinks otherwise to tell me the name of the act and the number of the section where it is written), rather this is a assumption which one could draw from the existing law, similar to how a theorem is concluded from a set of axioms in mathematics. However, i think such a conclusion would not apply to children of binational parents.
As before, i would be very happy for comments about this interpretation of the law.
@sv2707: Yes, according to German law our daughter will be automatically a German citizen because i am German, very similar to the Indian law according to which she will be Indian because my wife is Indian. The German law does in fact allow dual citizenship for minors, and in theory it also allows that the parents renounce the German citizenship of the child (the procedure might be complicated, but). However, i believe that the best solution for our child would be to have both citizenships, at least until she is 18. Maybe until then the law has changed so that she can keep both citizenships, or, if not, then at least she can choose for herself.
Ok, i made some more research.
(Disclaimer: I am not a lawyer. The reasoning in this text is purely based on common sense.)
The citizenship act , which can be found here
http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=410520784
( The homepage of the ministry of home affairs links to this pdf
http://mha.nic.in/acts-rules/ic_act55.PDF
however, the first one seems to be more complete with regards to the amendments, i believe the first pdf is in fact the law currently in effect)
leaves the decision whether a acquisition of a citizenship was voluntarily or not up to the center government.
This is what this quote from the citizenship act means:
Now the government of India basically set up a catalog of rules, according to which such questions should be decided. There is a judgment from 1962, which can be found here:
http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=3963
Besides other things. this Judgment also refers to a rule from this catalog saying:
However, it seems that this catalog of rules was recently updated, and in the new catalog, which can be found at
http://mha.nic.in/acts-rules/ic_rule56.pdf
this rule was removed. Therefore obtaining a passport is NOT anymore conclusive proof that the citizenship was voluntarily acquired. However, when a person has two citizenships that person has to proof that he did not acquire the foreign one voluntarily, i.e. the burden of proof is on the person.
However, the website from the Indian home ministry says at
http://mha.nic.in/citi-susp.htm
that a baby will only be a citizen of India if either parent is Indian and the birth is registered within one year at an Indian embassy. This section also includes the clause:
(These conditions can also be found in the law as per the first pdf which i mentioned).So this begs the question what will happen if the parents first register the birth at the Indian embassy, truthfully signing the affidavit that the baby currently is not holding a passport of another country, and after getting the Indian passport proceed to apply for the passport of the foreign country (of course, provided that according to the foreign law the baby acquired the foreign nationality automatically, i.e. “involuntarily”, and the law of the foreign country has no further objections against this procedure).
In fact, it seems this kind was procedure was already anticipated, if not wanted by the recent amendments to the Citizenship Act, because the latest version of the law also has the following clause:
First of all, this sentence acknowledges that there might be in fact minors who are citizens of India and of other countries. Accordingly, there must be (or have been) some process or possibility for a minor to actually hold both citizenships at the same time, until that minor reaches full age. As far as I understand the law the above suggested procedure would result in the minor having and keeping both citizenships, without breaking Indian law.
Some people think that it is written down in the Indian law that it is not possible that a Indian citizen is having another passport. This is not the case (i challenge anybody who thinks otherwise to tell me the name of the act and the number of the section where it is written), rather this is a assumption which one could draw from the existing law, similar to how a theorem is concluded from a set of axioms in mathematics. However, i think such a conclusion would not apply to children of binational parents.
As before, i would be very happy for comments about this interpretation of the law.
@sv2707: Yes, according to German law our daughter will be automatically a German citizen because i am German, very similar to the Indian law according to which she will be Indian because my wife is Indian. The German law does in fact allow dual citizenship for minors, and in theory it also allows that the parents renounce the German citizenship of the child (the procedure might be complicated, but). However, i believe that the best solution for our child would be to have both citizenships, at least until she is 18. Maybe until then the law has changed so that she can keep both citizenships, or, if not, then at least she can choose for herself.
leonidas666
Registered Users (C)
quibbling over trifles
And by the way there is a spelling mistake (but how can i know that it is really a spelling mistake, since the sentence is still grammatically correct...?) in the law which changes the meaning quite a bit:
And by the way there is a spelling mistake (but how can i know that it is really a spelling mistake, since the sentence is still grammatically correct...?) in the law which changes the meaning quite a bit:
If you take this sentence literally it probably does not apply to anybody. Naturally i would not mind if this clause was not valid
US Baby Exiting US on Foreign Passport
Further to my email to you on the subject, you may find this link interesting:
http://www.richw.org/dualcit/law.html#Passport , an excerpt from which is reproduced below:
"The US does not currently have "exit controls" at its borders. However, if a US citizen is discovered to have left the US without a valid US passport -- e.g., in connection with a passport application at a US embassy or consulate -- the aforementioned "waiver fee" (if it is ever reinstated) could be assessed in addition to the regular passport fee. Note that a January 2003 INS proposal to require commercial carriers to provide electronic passenger manifests on outbound flights and cruises, by the end of 2003, would constitute an exit control rule for all practical purposes."
If possbile please post my email to you here so all can have access to it. Sorry, I did not save the text.
Thanks.
tamtom said:
Further to my email to you on the subject, you may find this link interesting:
http://www.richw.org/dualcit/law.html#Passport , an excerpt from which is reproduced below:
"The US does not currently have "exit controls" at its borders. However, if a US citizen is discovered to have left the US without a valid US passport -- e.g., in connection with a passport application at a US embassy or consulate -- the aforementioned "waiver fee" (if it is ever reinstated) could be assessed in addition to the regular passport fee. Note that a January 2003 INS proposal to require commercial carriers to provide electronic passenger manifests on outbound flights and cruises, by the end of 2003, would constitute an exit control rule for all practical purposes."
If possbile please post my email to you here so all can have access to it. Sorry, I did not save the text.
Thanks.
US Baby Dual Nationality
Here is my email to tamtom:
"Tamtom",
Your posts/answers on this portal are very informative and legally logical and I am very impressed.
I am writing to you since I am in the same position as you are. Our baby is due in the US first week Nov, but we would like to keep its Indian citizenship by descent. We intend to return back to India soon, so being an Indian citizen is advantageous for school/college admissions (PIO/NRIs are not treated equally in terms of educational opportunites).
We would also like the baby to choose its own citizenship at 18. Maybe he wants to pursue further studies in US and become US citizen...
I am having the same dilemna as you are; on what passport can the baby travel? My limited knowledge tells me to do this:
1. Once the baby is born, get the US birth certificate and SSN.
2. Then, with birth certificate in hand, apply for and get INDIAN passport from Indian consulate. (Does Indian consulate also issue birth certificate? If so, get that too)
3. Apply for US passport and get it.
(I believe US does not mind dual citizenship, so I intend to get Indian Passport first, so that when I apply for it and state that I have not voluntarily accepted citizenship of any other country, I am not lying)
4. Exit on the Indian passport preferably; that way entry into India is easy.
5. If not possible then exit on US passport. However, I do not think anybody checks too much when you exit US. If the baby has Indian passport, then they may not check his place of birth on the passport. I have left the US on Indian passport on a number of occassions and the airline staff only glances at the Passport at the time of issuance of boarding pass.
Please correct me if I am wrong and let me have your views. If we are not able to solve this jumble, it may be wise to visit an immigration attorney.
Best regards
lovemusk said:
Here is my email to tamtom:
"Tamtom",
Your posts/answers on this portal are very informative and legally logical and I am very impressed.
I am writing to you since I am in the same position as you are. Our baby is due in the US first week Nov, but we would like to keep its Indian citizenship by descent. We intend to return back to India soon, so being an Indian citizen is advantageous for school/college admissions (PIO/NRIs are not treated equally in terms of educational opportunites).
We would also like the baby to choose its own citizenship at 18. Maybe he wants to pursue further studies in US and become US citizen...
I am having the same dilemna as you are; on what passport can the baby travel? My limited knowledge tells me to do this:
1. Once the baby is born, get the US birth certificate and SSN.
2. Then, with birth certificate in hand, apply for and get INDIAN passport from Indian consulate. (Does Indian consulate also issue birth certificate? If so, get that too)
3. Apply for US passport and get it.
(I believe US does not mind dual citizenship, so I intend to get Indian Passport first, so that when I apply for it and state that I have not voluntarily accepted citizenship of any other country, I am not lying)
4. Exit on the Indian passport preferably; that way entry into India is easy.
5. If not possible then exit on US passport. However, I do not think anybody checks too much when you exit US. If the baby has Indian passport, then they may not check his place of birth on the passport. I have left the US on Indian passport on a number of occassions and the airline staff only glances at the Passport at the time of issuance of boarding pass.
Please correct me if I am wrong and let me have your views. If we are not able to solve this jumble, it may be wise to visit an immigration attorney.
Best regards
Yes, the Indian consulate issues a birth certificate. You can get it with the baby's US birth certificate plus proof of the parent's Indian citizenship.lovemusk said:
lovemusk said:
The no objection letter we signed when applying for the child's Indian passport says, "In the event of the child acquiring US citizenship or any other nationality, I undertake to get his/her name deleted from the Indian passport."
Moreover, the child's Indian passport also is stamped "WARNING: If holder acquires Nationality of another country, he should Surrender This Passport forthwith to the nearest Indian Mission/Post abroad. Unauthorized possession of this Document shall Constitute an Offence Punishable under the Indian Passport Act 1967"
Typically, the above verbiage seems to confuse the concept of "passport" with "nationality", but if you talk to some Indian consular officials, it becomes clear that they expect you to return the Indian passport if you get the child a US one. I'm also under the impression that they do have the authority to demand that. You could try arguing the case as leonidas666 suggested earlier in this thread, but I think it is a stretch to claim the status is "involuntarily acquired" after accepting such a major distinguishing mark of citizenship as a US passport.
lovemusk said:
I believe most of the concerned Indian officials would consider it a violation to continue using the child's Indian passport after getting a US one, as explained above.
lovemusk said:
Immigration attorneys in the US are not generally familiar with Indian nationality law. On the Indian side, the laws are rather vague and give the government wide latitude. So lawyers are not likely to be of much use in this case.
If you actually want both passports for your child, that will require a big change in the Indian system so I think the only way to do that is to lobby India's political leaders to write new rules.
In our case, we only want the Indian passport for our child, but we do need to be able to travel between the two countries. Our approach so far has been to talk to the officials in both countries and try to get them to agree on a solution. The situation is still in flux, but please wish us luck since I've already booked our tickets to India ;-)
--Tamtom
tamtom said:
Tamtom,
I read your situation. The best option and the only option is to get a US citizenship and OCI. If you want indian citizenship for the child it can always be acquired by living for 5 years in india and renouncing US citizenship after the child grows up. I don't see what the problem is.
Also the child will not be treated as NRI but will still have access to NRI quota in education. It will be a full US citizen, meaning it has a right to consular protection in india. I think this a big deal if one gets into trouble with the law in india. Legally police has to inform the US consulate and arrange for a meeting with US officials in India.
Overall there seem to be a bunch of benefits associated with US citizenship/OCI scheme, if you plan to live in india, so why are you thinking so much?
hipka said:
hipka,
Thank you for the advice, but it was discussed earlier in this thread. An OCI is a foreigner in India with a visa. Visas can be cancelled, and laws can be changed, but nobody can take away one's citizenship. And if nobody guards our daughter's status while she's a full citizen of India, how can we expect anyone would do so when she is merely a foreigner with a visa? US consular visits won't help her if India decides to send her back to the US for whatever reason (for example, if some official doesn't like her blog, but as a foreigner her freedom of speech in India would not be guaranteed). What about her sense of identity and belonging? With OCI, her US role would be primary and she would be only a guest in India.
People may have many reasons for making the choice. But the main point is, we should not be forced to choose US citizenship only because the US threatens to ban her travel if we choose Indian.
Regards,
Tamtom
leonidas666
Registered Users (C)
Hi,
i just set up a website at
http://www.indian-dual-citizenship.com/
As you have seen from my previous posts, i take a rather proactive course to this issue. The website is more of a test to see how many people share my view
The website is still a bit rough, comments are appreciated though.
i just set up a website at
http://www.indian-dual-citizenship.com/
As you have seen from my previous posts, i take a rather proactive course to this issue. The website is more of a test to see how many people share my view
The website is still a bit rough, comments are appreciated though.
tamtom said:
Tamtom,
I see your concern and the need to have full dual citizenship. However she can always renounce her US citizenship and obtain full indian ctiz. if she lives in india for 5 years. After that it won't be easy to change laws and send her away. So what is the problem here, all she needs to do is choose where she is going to live and get that countries citizenship.