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Back to Index of Laws Concerning Children of Undocumented Migrants

Summary

Argentina does not have a program for children of irregular migrants equivalent to the US DACA program.  However, such children have access to health, education, and social benefits while their regularization process is underway.  The minor children of irregular migrants have access to Argentine citizenship upon meeting legal requirements.   

I. Introduction

Argentina does not have a special program for children of irregular migrants similar to the US DACA program.  Children with irregular immigration status are subject to the general legal regime applicable to all irregular migrants, which grants them the right to health care and education while their regularization is processed. 

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II.  Irregular Migrants

The immigration enforcement authority is the Dirección Nacional de Migraciones (DNM) (National Directorate on Migration), which issues entry permits, residence permits, and changes of status, and applies sanctions in case of violations of the Law on Migration 25871.[1]  According to the Law on Migration, once the DNM verifies an irregular immigration status, the DNM orders the foreigner to regularize his or her situation within a specified deadline, under penalty of expulsion.[2]  If the deadline expires with no regularization, the DNM orders expulsion from the country, an order that is subject to appeal before a court.[3]

Once a petition for residence is filed, the applicant may be granted a temporary residence authorization for ninety days, renewable for as long as the application process lasts, allowing the applicant to stay, leave, and re-enter the country, and to work and study while the authorization is valid.[4]  If admission is denied or a determination of irregular status is appealed, a temporary stay permit may be issued for ninety days, renewable until a decision on the appeal is rendered, allowing the applicant to stay, study, and work in the country while the permit is valid.[5]

Foreigners with an irregular immigration status are not allowed to work legally in the country[6] and employers of irregular migrants are subject to fines.[7]  However, irregular migrant workers have all labor law protections regardless of their immigration status.[8]  They also have full education, health care, and social assistance rights.[9] (The government grants legal migrants and their families equal access to social and public services and facilities, health, education, justice, employment, and social security, the same as Argentine nationals.[10])

Irregular migrants who entered the country through unofficial points of entry or by evading immigration controls are subject to expulsion from the country.[11]  In order to purge their clandestine entry, they must leave and re-enter the country through an authorized port of entry.[12]

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III.  Path to Citizenship for Irregular Migrants

Under the Argentine Constitution[13] anyone born in Argentina is an Argentine national, regardless of the nationality of the parents.[14]  Argentina follows primarily the principle of jus soli,[15] but also embraces the principle of jus sanguinis by granting Argentine nationality to the child of an Argentine national who was born abroad and opts for such nationality.[16] 

In order to acquire Argentine nationality through naturalization, an applicant must be eighteen years of age or older and have resided in Argentina either as permanent or temporary resident for two years before submitting the naturalization petition and expressing the will to do so before a judge.[17]  The residency requirement has been interpreted as legal residency, which must be proved through a certification issued by the DGM.[18] 

The Supreme Court ruled in a 1954 case that when the applicant entered the country as a minor, he could not be responsible for noncompliance with immigration norms, and therefore could not be denied Argentine nationality on the basis that he could not prove that he entered the country through legal means.[19]

Applicants may be exempted from the two-year residency requirement if they have enrolled and rendered services in the Armed Forces of Argentina.[20]

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Prepared by Graciela Rodriguez-Ferrand
Senior Foreign Law Specialist
September 2017


[1] Ley 25871 on Migration, Dec. 17, 2003, art. 107, Boletin Oficial [BO], Jan 21, 2004, http://servicios.infoleg. gob.ar/infolegInternet/anexos/90000-94999/92016/texact.htm, archived at https://perma.cc/SC32-RMNE

[2] Id. art. 61.

[3] Id.

[4] Id. art. 20.

[5] Id. art. 20 bis.

[6] Id. art. 53.

[7] Id. art. 59.

[8] Id. art. 56.

[9] Id. arts. 7 & 8.

[10] Id. art. 6.

[11] Id. arts. 29 K & 37.

[12] Silvana Begala, Migrantes en Argentina: Inclusión Diferencial y Ciudadanías Jerarquizadas, Anuario del CIJS 771–72 (2012), https://ddd.uab.cat/pub/caplli/2014/168590/Anuario-CIJS-2012_migrantesargentina.pdf, archived at https://perma.cc/6RP4-78EW.

[13] National Constitution [CN], Aug. 22, 1994, art. 20, http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/804/norma.htm, archived at https://perma.cc/H9NT-Q3GF.

[14] Ley 346 Ley de Nacionalidad [Law on Nationality ], Oct. 1, 1869, as amended by Decreto 70/2017, BO Jan. 30, 2017, art. 1.a, http://servicios.infoleg.gob.ar/infolegInternet/anexos/45000-49999/48854/texact.htm, archived at https://perma.cc/HW2U-HR27.

[15] CN art. 75.12.

[16] Ley de Nacionalidad art. 1.2.

[17] Id. art. 2.1.

[18] Mario Oyarzabal, La Nacionalidad Argentina 23–24 (Buenos Aires, 2003).

[19] Fallos Corte Suprema de Justicia de la Nación (CSJN) 230:244, 1954 Barrios, Manuel s/ Naturalización y Ciudadanía, in id. at 24.

[20] Ley de Nacionalidad art. 2.2.2.