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I am a US citizen living in the UK on ILR visa. I have recently had a baby in July 2021. I have been unable to get an appointment at the US embassy to register his birth (CRBA) or apply for his first passport due to limited appointments (I check every day). He has his UK birth certificate and UK passport. We are flying to US in December.

  1. Will he be turned away at airport if he enters the US with UK passport and ESTA?

  2. Is he still considered a US citizen even though his birth is not yet registered via the CRBA? He hasn't yet claimed citizenship?

  3. Wording on Embassy regarding child entering US with foreign passport is 'highly recommended' that US passport is used. Seems like a grey area. Does anybody have experience with this?

Thanks

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  1. It shouldn't be possible for him to be denied entry, because logically, he is either a US citizen or he isn't. If he is a US citizen, he cannot be denied entry to the US no matter what, no matter what documents he has. If he is not a US citizen, there should be no problem for him entering on his UK passport and ESTA. So uncertainty regarding his US citizenship should not, in principle, prevent him from entering the US. However, is he even able to get an ESTA without lying about his US citizenship?
  2. Yes. His US citizenship is automatic and involuntary at birth according to US law, if the conditions for transmission of US citizenship to a child born abroad were met (which I assume they were or otherwise CRBA wouldn't have been an option). No action is necessary, and taking no action cannot make him not a US citizen.

Some additional information: This question has been asked many times on Travel.SE before, e.g. here. In the Foreign Affairs Manual, it is mentioned in 7 FAM 085(b) that it is permissible to issue a US visa to someone with a claim to US citizenship prior to a final determination of their US citizenship. By extension, it should also be permissible to enter on the Visa Waiver Program prior to a final determination of one's US citizenship. Immigration officers at the port of entry are not in a position to adjudicate the nuances of US citizenship claims (especially when it involves periods of physical presence of the parent, which often require extensive evidence of such periods of physical presence).

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    This answer is not wholly responsive, and is incorrect. Yes the baby is a US citizen, but also it's fully likely that the baby will be refused boarding onto the US-bound flight. No airline will engage in answering the citizenship question, as getting the answer wrong and having the passenger refused entry results in big fines for the air carrier. Timatic will say the baby must have a passport or other travel document (e.g., a refugee "passport") and a visa if required by that passport, and the airline will follow Timatic's guidance. No travel document = no boarding. Nov 8, 2021 at 20:02
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    @DavidSupportsMonica did you overlook the fourth sentence of the question? The baby has a UK passport. The first question assumes that the baby has ESTA (which is not an unreasonable assumption). The airline will see a baby with a UK passport and ESTA. Why would they deny boarding? Why would they be fined?
    – phoog
    Nov 9, 2021 at 8:01
  • @DavidSupportsMonica, Even if the airline did allow the child to board, if there were a fine and they appealed it, the airline would win - almost by default. No citizen can be denied entry. Sure, at the boarder control, there would some extra checks and delay, but that child would be allowed in with their parents.
    – ouflak
    Nov 9, 2021 at 13:06
  • @ouflak the penalties for bringing passengers with insufficient documents apply only to passengers who are aliens, so as a matter of law the airline cannot be in violation with respect to this child. The airline, however, has no way of knowing that in this case, and no reason to trust the parents. No airline will treat anyone as a US citizen unless the person has a document from the US government attesting to the person's US citizenship, and even then the document has to be one that the government accepts for international air travel (i.e., a passport card won't get you on the plane).
    – phoog
    Nov 9, 2021 at 13:30
  • @phoog, Agreed. I was just responding to the scenario in which the airline actually did allow the child to travel and the suggestion that they got fined as a result. It almost certainly would never happen outside of an (human) error in procedures by the courier.
    – ouflak
    Nov 9, 2021 at 13:40

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