Tommaso

Hello, I think I may have an interesting question for you. I am a five year-old child* of a 10+ year-married USC/EUC couple, born in the UK, holding a UK passport (only), currently in the USA on a VWP. I have been to the USA several times already, though only for a month at the most each time (I have used my UK passport and the VWP each time). ESTA is current.

We are here on holiday as we (EUC mum & me) transition from living in Asia back to the UK, initially just for the summer, but we extended our visit to 90 days when were unable to return to our house in the UK when the tenants we rented it to declined to vacate early (as was their right). USC Dad is here, too, but unfortunately has to go back to Asia to work shortly--none of us has lived in the USA during the last 20 years. Our UK house is still not available and we have no other place to live until it is free in approximately 60 days.

Here's the problem: My silly parents do not agree about whether or not it is a good idea for me to overstay by 60 days, given my age and citizenship(s) status. Mum will not overstay--this question is about me.

I know that the overstay will not be held against me in the future, but it appears that I will not be eligible to use the VWP any more.

But then there's the USC-thing... I consider myself English and do not wish to claim USC at this time (I may change my mind later), so my birth was not registered with the US Consulate. As a child of a natural-born USC, I can certainly claim USC, but the view of the USG is most likely that I already am a USC. If that's their view, it's not clear to me how any sanctions could be imposed upon me re the VWP overstay per se.

Anyway, there seems to be many issues here, I think you will agree. Dad thinks I'd be much better off not overstaying and trying a short back-to-back trip to the UK, bringing all of the evidence of non-immigration intent with me upon my return to the USA, but mum thinks I should be fine just staying over.

Thanks for your help... (This is not a troll, but thanks for asking!)

Tommaso

*Obviously, I've had some assistance in formulating this query.

christmasoompa

Surely you're a USC anyway (no need to 'claim it'), and therefore don't have to worry about overstays (although shouldn't be travelling on ESTA and should be entering the US on a US passport)?

But one of the forum pros will be along shortly to give the correct answer no doubt.

Very advanced writing skills for a 5 year old btw.

sir_eccles

Two options:

1) US passport application

2) Form N-600

kimilseung

Claim it.

You can think of yourself as an English-child, but get the advantage of a US passport, what can the objections be? It can not be cost, as one of your alternatives seems to be a return trip to the UK.

You can get a US passport and continue to be be British/English with a UK passport for everything except in/out of the U.S.

Save up your allowance and buy a passport.

zerlesen

If the father in this scenario met the requirements to transmit citizenship (in particular, if he lived in the US for a sufficiently long time earlier in his life) at "your" birth then "you" are already a USC and hence ineligible to use the VWP from the get-go. An interesting question is what trouble you (the three of you, hence no scare quotes) could potentially get into for willfully using the VWP despite that; I suspect that in practice the answer is "none" but I'd want an expert opinion on that.

Another interesting (to me) question: if a five-year-old non-USC overstays on the VWP, do all the usual consequences ensue for that person, given that five-year-olds are not generally considered to be in charge of their comings and goings?

"You" either are or are not a USC. I don't think "claiming" is a meaningful concept here.

Noorah101

Why are you in the USA on the VWP, rather than as a USC? Was your USC parent unable to pass along US citizenship to you?

"just for the summer" is already about 90 days. Regardless, it doesn't matter how long you were planning to stay in the USA, your limit is 90 days, period.

There must be some other place you can live in the UK? Friends, relatives, rent an apartment, extended-stay hotel, etc. None of you has lived in the USA for 20 years, yet you're finding some place to live right now, yes? Do the same in the UK.

So....dad is going back to Asia soon. Mom will not overstay in the USA, so she'll be going back to the UK (or wherever) before 90 days is up also. And how exactly is a 5-year old child going to stay in the USA alone? And why would both parents want that? Why don't you just go back with Mom, since she's not overstaying?

And nor will you need to, if you are indeed a USC. Just get a US passport and make it easy on yourself.

It's not something you claim...you either are, or you aren't. If you are, you are required to have a US Passport when entering the USA.

Get it registered as soon as possible.

I agree with Dad.

I disagree with this. If you are not a USC, and you will be visiting again in the VWP, don't make a quick turnaround. Rule of thumb is to stay outside the USA longer than you were inside. And if you ARE a USC, you should be traveling on a US Passport.

I disagree with Mom.

Rene

Jerseygirl

Seems like the mother has/may have the problem of overstaying...not the child.

Noorah101

According to his post, Mom is the EU citizen, and he says she will not overstay (which means she must be leaving the USA before the 90 day VWP visit is up). So it seems that only the child will be overstaying. Of course if the child is a USC, he/she isn't really a visitor in the USA anyway...but...

Rene

Jerseygirl

I know...it sounds odd...a 5 yr old child staying in the US without a parent.

A I

Maybe mother re-entered or is not in ESTA, and does not have to overstay to meet the timeline proposed to accompany the child while in the US during the child's proposed overstay. This was not clear to me....

Tommaso

Thank you all for your replies! To clarify, when I said mum will not overstay, I meant that she realises that she has to leave North America before her VWP expires, so she will, and will attempt to return immediately. This is obviously a risky endeavour, as it directly contradicts the oft-quoted "rule-of-thumb" regarding frequent VWP entries. However, it would be in compliance with the VWP and US immigration law. I understand that whether or not she is allowed back in will depend on the disposition of the person at the desk, among other things, but could be affected by the documentation presented as well as her credibility. Her husband does not live in the USA, she does not need to work, has private insurance and has the use of our holiday home, so has no need to burden the state financially or deprive any USC of the opportunity to work. She will also have a return ticket to the UK and evidence of the previously mentioned tenant situation there. In addition, she has a long record of always leaving the USA when required to do so. However, she does have free access to our holiday home and is married to a USC, which are not a "good facts" as we say in pre-law-school, so, it's basically down to whether the desk officer is having a bad day...

As for me and my use of the term "claim" re my USC status, I may "be" a USC, but without evidence of my birth and my parents' status, neither I nor anyone else can prove it; in that sense my USC status effectively depends on my actions and, thus, I think this situation is fairly consistent with the making of a "claim" in respect of USC.

Consequently, I think I will likely continue to be treated as a foreign national by the USG, so if I were to travel with mum on her back-to-back trip, I would either be admitted for a further 90 days or refused entry along with her. She would prefer to travel alone (citing some nonsense about me being "difficult" on long-haul flights!), but I have a keen interest in preserving my options for the future and, therefore, would prefer to accompany her and take my chances. Frankly, I do not much like the idea of being banned from using the VWP for the rest of my life--even if my change of (official) status at some point would make this irrelevant. To be fair, mum is not solely concerned about her comfort on this trip--she is of the opinion that I should claim USC and be done with it, so she doesn't see any pressing need for me to fly anywhere.

So, to summarise the comments I've seen, apart from those counseling me to regularise my USC status, it appears that the main consequence for my overstaying my VWP period would indeed be that I would never again be able to use it. That would be a significant loss--although I would be in no worse position than most other people in this world, who do not have access to the VWP benefit at all. If we'd known we were going to want to stay five months in the USA, we would obviously have just got B2 visas before we left Asia, but hindsight is 20-20, as they say...

Another option would be for dad to come along on the trip, but I'm not sure whether that would be advantageous or not?

(In case you were wondering, much as I would enjoy being left on my own, I will be staying with dad until mum returns--or is refused entry, at which point dad and I would both fly to the UK--and then he will return to Asia.)

Tommaso

sir_eccles

I think your post has highlighted a large number of red flags that would make me think doing back to back trips using the vwp would be inadvisable.

christmasoompa

But you *are* a USC, whether or not you've got any documentation to prove it! Think of it this way, if you hadn't got a UK passport, you'd still be a UK citizen wouldn't you?

As a USC, you are not supposed to be using the VWP, and I thought by law you had to enter the US using a US passport?

Noorah101

Tommaso,

Go get your documents in order to prove you're a USC and be done with it.

If you don't want to do that, tell Mom to suck it up and take you with her back to the UK. The family is willing for HER to potentially be denied entry on her return to the USA...why not you, too?

Bottom line...do not overstay.

Rene

fatbrit

The self-removal of your VWP privilege will most likely end in you not being able to enter the US until at least your 18th birthday except as a USC.

The consulate is more likely to realize your natural-born status than the cursory checks done under ESTA. Since they cannot issue a visa to a US citizen, and you cannot relinquish your citizenship until your 18th birthday, you will be stuck with either applying for a US passport or staying out. Of course, since your parents have not done the paperwork in a timely fashion, it may take some while to document your status.