The Duke and Duchess of Sussex were interviewed by Oprah Winfrey about the reasons why they left … [+]
The recent televised interview of Prince Harry and Meghan Markle with Oprah Winfrey has focused public attention on the young couple and the problems they faced in England. It turns out that the Duchess of Sussex faced intense pressure while living there to the point where parallels could be drawn to the life of Princess Dianna. Perhaps the most disconcerting claim made by the Duchess was that there was a racist streak in the Royal family which surfaced in discussions about the potential skin color of Meghan’s first child. To try to set the record straight, Prince William recently denied that there was any racism in the Royal Family. At any rate, these factors led the young couple to flee England and to seek refuge first in Canada, and then ultimately in the United States. While no doubt the Royal controversy will continue for some time, what may be an interesting element in the ongoing drama is to consider the immigration issues the young couple had to deal with to escape the turmoil and settle in a place sheltered from the intrusive U.K. media and find a more tranquil place for their family.
Harry, Meghan and Archie. (Photo by Toby Melville – Pool/Getty Images)
As an American, Meghan was able to come to visit the U.K. based on a U.S. passport. No visa was required. Once there, Harry could file a spousal sponsorship to enable her to become a permanent resident over time. That was the easy part. Since baby Archie was born in the U.K. he automatically became a British citizen. As his mother Meghan was a U.S. citizen, he was also eligible to become an U.S. citizen. The rule there was that since Archie was born to a British father and an American mother, to be eligible to pass down U.S. citizenship to Archie, Meghan had to have been physically present in the U.S for 10 years prior to Archie’s birth, and that five of those years of physical presence had to be after her age of 14. That was no problem, Meghan grew up in Los Angeles. So Archie is a dual British and American citizen. Meghan could some day become a citizen of the U.K. if her immigration papers were filed and processed and she returned to live in the U.K., but it is unlikely that will ever happen now.
When the couple resolved to move to Canada in 2020, while it would be natural to think that as a Royal Family member Prince Harry would have some special status, there was no such thing under Canadian law. They had to enter Canada as visitors for six months. It may have been possible that Meghan obtained her Canadian permanent resident card by virtue of her previous work as a star in the legal television series Suits that was filmed in Canada. If that happened, it would likely have been as a result of her applying as a self-employed applicant. Even assuming that happened, Prince Harry and Archie would have likely entered Canada as visitors for up to six months. Meghan would have had the right to apply to sponsor the prince and their child under a spousal sponsorship application inside Canada if she was indeed a permanent resident. More likely, however, the entire family just came as visitors to Canada. No harm done since as it turned out, the royal couple decided to move on to the United States.
Since Meghan was a U.S. citizen she had the right to return to the United States. Since Archie is also a U.S. citizen, he entered without a problem as well. As for the couple’s next child, if the child is born in the U.S., the infant will be a U.S. and British dual citizen, like Archie.
Britain’s Prince Harry, Duke of Sussex (Photo by DANIEL LEAL-OLIVAS / AFP) (Photo by DANIEL … [+]
As for Prince Harry, he probably entered the U.S. as a U.K. visitor entitled to stay for a maximum 90 days under a visa waiver program for citizens of the European Union. Since he was no longer an official member of the Royal Family, he would not have been eligible for diplomatic status, such as an A-2 visa. Alternatively, he may have applied for a B-1/B-2 visa at a U.S. consulate before coming to the U.S. that would have given him a six month period of authorized stay as a visitor. Either way he entered with a defined time of authorized stay.
It has been reported that Prince Harry will neither seek permanent residence nor U.S. citizenship. Most likely such a decision would be based on the fact that gaining such status in the U.S. would subject the Duke of Sussex to taxation on his worldwide income and also to U.S. estate tax on death. If that is indeed the concern, then the prince will have to carefully monitor how many days in any taxation years he is physically present in the U.S. for tax purposes. The rule is that if the prince is in the U.S. for 183 days over a three-year period, (calculated as adding up every day in the current year, one third of the days in the previous year, and one sixth of the days in the year preceding, totalling 183 days) he will be considered a resident for tax purposes and liable for U.S. taxes. For the sake of not getting caught by U.S. tax rules Prince Harry would be wise to pay attention to leaving the U.S. on trips and get good tax advice immediately, if he has not yet gotten any.
There is speculation the prince might apply for an O-1 visa as a person who has risen to the top of his field or someone with extraordinary ability. It would appear he would likely qualify, but to do that the prince would have to have a sponsoring organization and his visa would be tied to that sponsor. Even with the O-1 visa, counting days in the U.S. would still be very important regarding tax considerations.
It’s been a long and hard road for the young couple trying to make their way in the world. Hopefully they will be able to overcome any immigration challenges they face now and end up leading a successful and happy life in America. As for their recent interview, in time things will likely die down and the issues raised will be worked out. No matter what, time has a way of sorting out all problems.
I am a U.S. and Canadian Immigration attorney and have helped over 10,000 clients with various legal problems. I am a member of the New York and California bars in the US