How to lawfully leave United States without a United States passport for United States citizen

NOTE: I’m not an attorney. The information I got is my own opinion based on what I’ve read on the State Department’s websites. If you want legal advice, please seek out an attorney.

To answer your question in your update, the answer is no. Your child would not lose their U.S. citizenship for leaving the U.S. without a U.S. passport. Why? The answer is that loss of nationality is defined under 8 U.S.C. 1481 if they commit the following acts with the intent to lose U.S. citizenship:

1. obtaining naturalization in a foreign state after the age of 18 (Sec. 349 (a) (1) INA);
2. taking an oath, affirmation or other formal declaration of allegiance to a foreign state or its political subdivisions after the age of 18 (Sec. 349 (a) (2) INA);
3. entering or serving in the armed forces of a foreign state engaged in hostilities against the United States or serving as a commissioned or non-commissioned officer in the armed forces of a foreign state (Sec. 349 (a) (3) INA);
4. accepting employment with a foreign government after the age of 18 if (a) one has the nationality of that foreign state or (b) an oath or declaration of allegiance is required in accepting the position (Sec. 349 (a) (4) INA);
5. formally renouncing U.S. nationality before a U.S. diplomatic or consular officer outside the United States (sec. 349 (a) (5) INA);
6. formally renouncing U.S. nationality within the United States (The Department of Homeland Security is responsible for implementing this section of the law, and any inquiries should be directed to DHS) (Sec. 349 (a) (6) INA);
7. conviction for an act of treason against the Government of the United States or for attempting by force to overthrow, or bear arms against, the Government of the United States (Sec. 349 (a) (7) INA)

Your child is not doing any of these. And even if the child does any of these things, there’s still the requirement that these acts be done with the intent to lose U.S. citizenship. It’s a pretty easy case to demonstrate that an infant hardly has the capacity to form said intent.

If you’re interested in seeing how the U.S. State Department would make a determination of loss of nationality, check out 7 FAM 1200 in the Foreign Affairs Manual.

Hope this helps!

IANAL but the ‘more lawful’ way I can think of would be to request a US passport anyway. You write them a nice letter explaining why you need them to issue a passport for your daughter before X date. It may be a good idea to have a lawer handle this.

Yes, you already know their reply will be “I am sorry but we are unable to process your petition at this point”, or you being queued to be processed at “X + many months”. The point is in receiving their reply.

Suppose that, as you fear, in 20 years your daughter does indeed find difficulties getting a passport. She faces an anal official doubting her citizensip as she didn’t leave on a US passport. Nobody remembers coronavirus crisis (just a note on history books), much less that they stopping issuing passports. Any entry on their official web pages is long gone.

It would be handy to be able to show that correspondence where the Government refused to (promptly) issue a passport to your child, despite clearly stating your need. It might still be illegal to leave the country without a passport they won’t give you, but it makes your case stronger.

Also, having used the services of a lawyer could help to back your claim: “yes, my records indicate that twenty years ago I handled a request by a certain Mahali Sindy about a baby that in the end, couldn’t be issued a passport due to pandemy. Here is my copy of the government reply”.

Obviously, make sure to get a copy of everything that could be needed in the future to show the citizenship of your daughter.

The US Embassy on your home country should have a registry of US nationals living there. I would recommend listing her there when you arrive. The point is that she doesn’t appear as a US citizen coming out of nowhere, but there is a clear track record that she had been known to be living there since she arrived to the country.

Also, get her a passport once it is possible again, even if she’s not going to travel anywhere. I expect that if there is any issue, it would be with the first expedition. Further renewals would just require the previous one, even if expired. Thus, you would want to get the first one before all this experience fades from people memory.

There are some loopholes out there. For instance, passengers on a round-trip cruise from the US can get off the boat in different countries with a birth certificate. I did this on my first cruise in 2016. I know cruises aren’t running right now but there might be other similar loopholes.

I am a naturalized US citizen also a citizen of Argentina. When I enter the USA I must present my USA passport, no way around it. When exiting the airline check-in agent is the one that looks at the passport, not a Customs and Border Patrol officer. They usually ask if I have a visa for Argentina (not needed) then they want to charge me for the entry fee for Argentina (a couple hundred US dollars) so I tell them being an Argentina Citizen I don’t need to pay. Then I show my Argentina Passport. Many not well informed agents have then entered my Argentina Passport data for leaving the country, instead of the USA one, when filing my exiting data. This has never ever caused me a problem upon return. Since you have a baby, I think they will only make sure both parents are present or, if only one is leaving with the child, that he/she has an authorization from the other parent to do so. It used to be one parent was enough but I believe that not to be the case anymore (quite reasonable). Other than that, I don’t see a problem leaving with the foreign passport for your child. Before return as they’ve said, you’d need a USA passport.

It is unlikely your child can leave without having a US passport without violating this law.

But this law is not enforced at all with respect to departures since US does not have exit control presently; and neither TSA nor the airline cares about it; and there is no penalty specified for violation.

For returning, your child will need to pass immigration where this law could be a hassle for you (but your child can’t be denied entry as a US citizen in any case).

If you really want to follow this nonenforced and nonenforceable law (or your child want to return to US without US passport with less hassle), you can ask the White House for a Presidential exception (unlikely) or use one of the exceptions specified in 22 CFR § 53.2.

(b)(11)(i) is particularly useful for your child: if your passports qualify for visa-free entry/transit or if you have proper visas, you can enter US via Canada or Mexico and her birth certificate would suffice to enter.

(11) When the U.S. citizen is a child under the age of 19 arriving from contiguous territory in the following circumstances:

(i) Children under age 16. A United States citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when entering the United States from contiguous territory at land or sea ports-of-entry; or

Thanks for the comments: For departure, we get many comments about no one enforcing the law, but still it is a law… We are worried that the penalty will change in future and affect my daughter in future, which could be several decades.

The US Constitution expressly prohibits ex post facto law. The penalty cannot be applied or increased in the future if no penalty exists at the time. Even if there is any penalty, as a literal baby, she won’t be held accountable or punished for her parents’ act.

For return, I will definitely apply in overseas Embassy in future. But another issue is will my daughter lose her citizenships if she leave USA with a foreign passport?

No. It is impossible to lose a US citizenship by birth without expressly renouncing it as an adult.

The legislation exists but there’s no penalty for not complying with it.

In any case, your baby will be travelling on a foreign passport so nobody will care about the US one or bother to check.

Returning to the US is a different matter. If your child doesn’t possess a US passport it is still possible to enter the US as a citizen, but it will take time. You should apply for a US passport at the local embassy overseas if you plan to return.