by admin on March 30, 2010

One aspect of current US immigration law, specifically related to residency requirements, openly allows discrimination in favor of women over men.

A child born in Thailand or anywhere else outside of the US to unmarried parents consisting of only one biological US citizen parent will face less roadblocks to obtaining US citizenship if that child’s US citizen parent is female rather than male.

Put another way, it is more difficult for US men to transmit US citizenship to offspring born abroad and out of wedlock than US women.

Is this unfair gender-based discrimination? The US Supreme Court has just agreed to take on this hot-potato immigration policy.


The appealed lower federal court case now up for Supreme Court review involves Ruben Flores-Villar – a Mexican male petitioning for US citizenship, born to a Mexican mother and a US citizen father. The lower court in California upheld the validity of separate, unequal requirements for US citizen mothers and fathers in cases where these parents conceive a child with a non-American partner.

So, let’s say a US citizen named Steve (last name, say, Crawford) is laid-off from his financial-analyst job in the US and relocates to Thailand. Here he finds work teaching English and eventually as a columnist. After quickly losing his teaching job he impregnates his Thai girlfriend. Even though Steve is a fairly honest tax-paying US citizen, his illegitimate half-Thai, half-American child will face more difficulty gaining US citizenship than a child borne by an unmarried US woman who also moved to Thailand to become a teacher and has this child with a Thai man.    


The Ruben Flores-Villar lower court case ruling allowing for gender-based discrimination was based on a previous Supreme Court decision in 2001 (Nguyen v. Immigration and Naturalization Service); The Court declared that ‘sex-based classifications’ do not offend principles of unequal protection if these discriminatory-means serve ‘important government goals.’

In this case the Court ruled that in order for such children to obtain American citizenship, American fathers (but not American mothers) of children born abroad to unmarried parents must provide a court order establishing legitimate paternity rights

For children born abroad with only one US citizen parent, who is a female, that mother must have lived in the US continuously for one year. However, the total residency time in the case of citizen fathers is five years (two of which must have been after the age of fourteen). And unfortunately for Steve Crawford, because he was born well before 1986, when changes to immigration law significantly loosened the residency requirements for men, he as a citizen father must have lived in the US for 10 years–at least 5 of those after the age of 14.

An Associated Press writer refers to this pending Supreme Court review as a ‘curious corner of U.S. immigration law,’ an intriguing aspect that pivots on a gender discrimination loophole. In what way does this policy ‘serve important government goals?’

Is the presumption that American men are more likely to have children out of wedlock while abroad than American women?


In the 2001 Nguyen v. Immigration and Naturalization Service case the Supreme Court justified unequal gender requirements based on two governmental-interests:  The first being to assure that a ‘biological parent-child relationship exists.’ The Court explains that a ‘mother’s relation is verifiable from the birth itself and documented by the birth certificate. However, a father need not be present at the birth, and his presence is not incontrovertible proof of fatherhood’.

The second governmental-interest cited is the need to ensure that the citizen parent and child have ‘demonstrated opportunity to develop a relationship that consists of real, everyday ties … and, in turn, the United States’.

The Court’s opinion is that ‘…such an opportunity inheres in the event of birth in the case of a citizen mother and her child, but does not result as a matter of biological inevitability in the case of an unwed father,’ because the father ‘may not know that a child was conceived, and a mother may be unsure of the father’s identity’.

Interestingly, the Supreme Court extends this context to ‘young men on duty with the Armed Forces in foreign countries’ – rationalizing that ‘Equal protection principles do not require Congress to ignore this reality.’

Whether justified or not – it is a provocative reverse-discrimination issue.

Are any American men following this?


Bringing the Children of a Thai Spouse to America: K2 and K4 Visas 

{ 1 comment… read it below or add one }

TR April 15, 2013 at 1:24 am

As a US citizen and a father of a daughter born in Thailand with a Thai lady, I did not find any issues obtaining a US citizenship and Social Security number for my daughter.
The process was simple and the US embassy in Bangkok did most of the work for me.


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