US immigrants preparing to have a baby in the United States will naturally encounter questions regarding the nationality of their child. For example, Couple A and Couple B from mainland China are good neighbors. Couple A are Chinese citizens holding US Green Cards (permanent residency in the US) and had a boy in the United States; Couple B are Chinese citizens studying in the US without Green Cards and had a girl in the United States. Both children, based on their birth certificates, obtained US passports from local authorities. However, when these two neighbor families prepared to take their children back to mainland China for a visit and applied for the necessary procedures at the diplomatic and consular missions of China in the United States, the results were completely different—the Chinese consul issued a Chinese visa on the US passport of Couple A's son, but issued a separate "Travel Document of the People's Republic of China" for Couple B's daughter. Why is this? Why do children born in the United States have different nationalities?
What are China's regulations on nationality?
In international practice, the ways an individual acquires nationality can be divided into "acquisition by birth" and "acquisition by derivation." Nationality acquired by an individual through "birth" is called "original nationality" or "nationality at birth"; while nationality acquired by an individual through "application" is called "acquired nationality" or "derived nationality." Among these, the acquisition of an individual's "original nationality" or "nationality at birth" generally follows these three major principles:
1. The principle of "jus sanguinis" (right of blood), meaning the child's nationality is determined by the nationality of their parents.
2. The principle of "jus soli" (right of the soil), meaning the child's nationality is determined by the country where they are born.
3. The principle of "mixed system," which adopts a combination of "jus sanguinis and jus soli" to determine an individual's nationality. Among these, some countries are "primarily jus soli, supplemented by jus sanguinis," while others are "primarily jus sanguinis, supplemented by jus soli."
Currently, China adopts a mixed principle of "primarily jus sanguinis, supplemented by jus soli":
1. Using "primarily jus sanguinis" to determine an individual's original nationality. Article 4 of the "Nationality Law of the People's Republic of China" (hereinafter referred to as the "Nationality Law"), which has been in effect since September 10, 1980, stipulates: "Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality." Article 5, Paragraph 1 stipulates: "Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality." Accordingly, as long as one or both parents are Chinese citizens, regardless of whether the individual is born within or outside the territory of China, and regardless of whether the country of birth adopts the "jus soli" principle, Chinese law recognizes that the individual has Chinese nationality.
2. Using "supplemented by jus soli" to determine an individual's original nationality. Article 5, Paragraph 2 of the "Nationality Law" stipulates: "But a person whose parents are both Chinese nationals or one of whose parents is a Chinese national and have settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality." Therefore, although one or both parents are Chinese citizens, if one or both parents have settled abroad, and according to the laws of that country of settlement or the laws of the place of birth, the individual acquires foreign nationality at birth, Chinese law recognizes that this child does not have Chinese nationality.
Chinese people having children in the US does not necessarily mean the child has US nationality
Neither Chinese nor US law recognizes dual nationality for their citizens. As mentioned above, China adopts a mixed principle of "primarily jus sanguinis, supplemented by jus soli," while the United States adopts the "jus soli" principle. Therefore, Chinese citizens from mainland China living in the United States should follow the common legal provisions and relevant practices of both countries when determining the nationality of their children born locally.
Article 2 of the "Supplementary Exchange of Notes between the Government of the People's Republic of China and the Government of the United States of America on Issues Concerning the Reunion of Citizens of the Two Countries, Travel Convenience, etc.," which is Annex I to the "Consular Convention between the People's Republic of China and the United States of America" effective since February 18, 1982, stipulates: "The two governments agree to provide travel convenience between the two countries to persons who claim to have both the nationality of the United States of America and the nationality of the People's Republic of China, but this does not mean that the two governments recognize dual nationality. The exit procedures and documents for the above-mentioned persons shall be handled in accordance with the laws of the country of residence; entry procedures and documents shall be handled in accordance with the laws of the country of destination." Therefore, for the nationality and document issues of children born in the United States to Chinese citizens from mainland China living overseas, it should be handled on a case-by-case basis as follows:
1. If one or both parents are Chinese citizens settled in the United States, and their child is born in the United States, US law recognizes that the child has US nationality, and US authorities should issue a US passport or corresponding documents for the child. At the same time, Chinese law also recognizes that the individual has US nationality. The Chinese consul may, upon the application of the interested party, issue a Chinese visa on their US passport.
2. If one or both parents are Chinese citizens temporarily residing in the United States, and their child is born in the United States, US law recognizes that the child has US nationality, and US authorities should issue a US passport or corresponding identity documents for the child. However, Chinese law only recognizes that this child has Chinese nationality. The Chinese consul may, upon the application of the interested party, issue a Chinese travel document for them. In practice, before the child reaches the age of 18, they will hold both a US passport and a Chinese travel document to enter and exit China and the United States. The specific practice is: exit procedures and documents shall be handled in accordance with the laws of the country where they are located; entry procedures and documents shall be handled in accordance with the laws of the country of destination.
At this point, dear reader, I believe you understand why the Chinese consul issued a Chinese visa on the US passport of Couple A's son, while issuing a separate "Travel Document of the People's Republic of China" for Couple B's daughter. In addition, the Chinese consul may also, upon the application of the aforementioned interested parties, issue a "Notarization of Chinese Nationality" or "Notarization of Non-Chinese Nationality" for the child.