A new executive order proposes to deny birthright citizenship to children born to parents in the country who have an unlawful presence
Donald Trump in his trademark style created enough stir and anxiety among immigrants on the very first day when he took office. Newly inaugurated President Trump signed an executive order that challenges the constitutional right that guarantees people born inside the United States as citizens of the country. If the order stands, the changes it proposes would go into effect Feb. 19.
The new executive order proposes to deny birthright citizenship to children born to parents in the country who have an unlawful presence. Soon as the order came, questions arose on whether the order also denies citizenship to children born to parents in the U.S. on legal work or study visas, tourism visas, or in a situation where neither parent is a U.S. citizen or permanent resident.
READ: Trump signs to end birthright citizenship in US, what about visa holders? (January 21, 2025)
The order as it was expected created unprecedented anxiety – especially amongst the work-based temporary visa holders. Immigration attorney, Dhenu Maru founder of Chicago based SwagatUSA LLC, says “The executive order to end birthright citizenship in the United States is an unprecedented attempt to undermine the US constitution. It was immediately challenged in court and will undoubtedly bring forward important discussions about the meaning of the 14th amendment.”
On whether the order also applies to temporary work-visa holders, Maru says, “Yes the executive order means that anyone whose parents are here on a legal temporary visa or whose parents are overstays or whose parents are undocumented are all not allowed U.S. citizenship.”
Immigration attorney Emily Neumann of Texas based Reddy Neumann Brown PC explaining further on what categories of visa this executive order would apply says, “The executive order, as written, would broadly apply to children born in the U.S. to anyone who is not a U.S. citizen or green card holder.”
She adds, “This includes individuals on work visas like H-1B and their dependents on H-4 visas. For example, under this order, if an H-1B visa holder and their H-4 dependent spouse were to have a child in the U.S. after 30 days, that child would no longer acquire U.S. citizenship at birth. While children are not considered unlawfully present under immigration law, the order provides no clear pathway for such children to obtain any lawful status, such as H-4 dependent status.”
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Soon as the order was signed, it was challenged in court as unconstitutional. Attorney Generals from 22 states have sued Trump to block this executive order. The lawsuit states, “About 150,000 children are born each year in the U.S. to two parents who don’t have legal status.” It also states that, “They (these children) will all be deportable, and many will be stateless.”
Explaining the confusion around the status of children, California based immigration consultant, Netra Chavan says, “If a child born in the U.S. isn’t eligible for citizenship, their status depends on their parents. If the parents have temporary visas (like H-1B or F-1 etc.), the child can stay as a dependent. If the parents are undocumented, the child may be undocumented as well, unless they qualify for programs like DACA. If the parents are refugees or asylees, the child may get legal residency through them.”
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The order also can have significant long-term consequences. Attorney Neumann says, “For instance, children of H-1B and H-4 visa holders born in the U.S. would not be able to sponsor their parents for a green card when they turn 21, as they would not hold U.S. citizenship. This action demonstrates that his campaign promises targeting undocumented immigrants were ultimately directed at the broader immigrant community.”
As the immigrant community reels under this latest salvo, which has already been heavily criticized and contested, the questions arise whether it has a legal standing. Neumann says, “The executive order is on extremely shaky legal ground because it conflicts directly with the 14th Amendment of the U.S. Constitution.
READ: Trump immigration agenda: From H-1B visas and H4 work permits to family sponsorships and deportations (November 9, 2024)
The Amendment clearly states that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ The Supreme Court has consistently interpreted this to mean that children born on U.S. soil, except for those of foreign diplomats or certain enemy forces, are U.S. citizens. This order attempts to redefine the ‘jurisdiction’ clause in a way that contradicts over a century of legal precedent. Courts are highly likely to strike it down because it oversteps executive authority and seeks to alter constitutional rights without the necessary constitutional amendment process. In short, the order is both legally unsound and constitutionally impermissible.”
Trump has consistently advocated for ending birthright citizenship as a key element of his immigration agenda, dating back to the launch of his 2015 presidential campaign. His August 2015 immigration proposal included plans to triple the number of Immigration and Customs Enforcement (ICE) agents and eliminate birthright citizenship. During a GOP primary debate in November 2015, Trump reaffirmed his commitment to establishing a “deportation force” aimed at conducting mass deportations of approximately 11 million undocumented men, women, and children living in the United States.
However, Trump was unable to create such a force or end birthright citizenship during his first term. Many now worry that a newly emboldened Trump could succeed in implementing these controversial measures if given another opportunity.