The new Trump administration issued an Executive Order (“EO”) on January 20, 2025 entitled Protecting the Meaning and Value of American Citizenship [Executive Order].  This EO attempts to deny United States citizenship to persons born in the United States whose parents were either not in lawful immigration status or held lawful nonimmigrant status at the time of the person’s birth.  The EO specifically states that United States citizenship will not automatically be held by persons born in the United States when:

• The person’s biological mother was unlawfully present in the United States and the biological father was not a United States citizen or lawful permanent resident at the time of said person’s birth;
• The person’s biological mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the biological father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

This means that a child born in the United States to, for example, a father that holds H-1B status and a mother that holds H-4 status will no longer automatically be a United States citizen at birth.  Such a child would presumably be entitled to H-4 dependent status as long as one of the child’s parents continues to maintain valid H-1B status, but the child’s status would be dependent on the parent’s status and the child would lose this status upon reaching the age of 21.

The legal basis of this EO is an interpretation of the Fourteenth Amendment to the United States Constitution (which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”) to exclude children born in the United Status whose parents lack immigration status or hold nonimmigrant status.  The interpretation that these children are not subject to the jurisdiction of the United States is vulnerable to legal challenge, and lawsuits challenging the EO have already been filed in federal district courts in New Hampshire and Massachusetts.  The courts may decide to enjoin the EO immediately on a temporary basis given the strong legal arguments against it.

The EO is not effective immediately, and applies only to persons who are born within the United States 30 days or more from the date of this order.  Unless an injunction is issued by a federal court, after February 19, 2025, children born in the United States whose parents hold B-1, B-2, H-1B, L-1, TN, O-1, or any other lawful nonimmigrant status may be denied United States passports.  The question of which citizenship such children will hold if United States citizenship is not available to them is not addressed by the EO and it is possible that a community of stateless individuals will result if the country or countries of the parents’ citizenship do not consider such children to be citizens.  The EO does not apply retroactively and does not affect the citizenship already granted to persons who would now be ineligible for citizenship.  Such persons retain their United States citizenship and may continue to reside in the United States, vote, and travel with their United States passports.

The constitutional basis for birthright citizenship and the practice of many years of granting United States citizenship to persons born within the United States mean that a temporary injunction barring the enforcement of this EO is likely.  The long-term future of the EO is more difficult to predict, however, and, if litigation involving this EO reaches the United States Supreme Court it is possible, given the current make-up of the Court’s justices, that the EO could ultimately be upheld.

We will continue to monitor all litigation involving this EO closely and will issue further Alerts as events affecting it occur.