The day President Trump took office, he signed 26 Executive Orders(EO) and revoked 76 Biden executive actions. While there were quite a few executive orders focused on various aspects of immigration, one that impacts all of the non-immigrant visa holders, such as H1B, H4, L1, F1, and other visa holders, is the ending of birthright citizenship.
In this article, we will look at what the Trump Executive Order on ending birthright citizenship means, the background of birthright citizenship, what the US Constitution says about it, past supreme court case judgments, and what kind of impact it would have on H1B, F1, L1, and other visa holders, what are the lawsuits filed on this and latest status, including some FAQs.
Update: Trump Executive Order to end Birthright Citizenship is Blocked by multiple judges across the nation, you can read the updates in last section.
What is Trump’s Executive Order on ending Birthright Citizenship?
As mentioned during his election campaign and previous interviews, President Trump signed an Executive Order(EO) titled “PROTECTING THE MEANING AND VALUE OF AMERICAN CITIZENSHIP” that ends birthright citizenship for kids born in the US to parents who are not US Citizens or Lawful Permanent Residents, aka Green Card holders.
The executive order says that the US Government will not give US Citizenship or accept anything to get US Citizenship for a person born in the US in two situations, as listed below:
- Illegal Status Mother: If the person’s mother was present in the US illegally during the birth, and the person’s father was neither a US Citizen nor a permanent resident of the US, aka a Green Card holder.
- Temporary Visa Status Mother: If the person’s mother was present in the US legally during the birth but on a temporary visa, and the person’s father was neither a US Citizen nor a permanent resident of the US, aka a Green Card holder.
Below is the screenshot of the executive order with relevant text highlighted. You can read the actual EO on The WhiteHouse Website.
Who does Ending Birthright Citizenship EO apply? H1B? Others? When?
As per the executive order’s language, it applies to or impacts all illegal immigrants and non-immigrants living in the US on a visa or traveling to the US on a Visa. Below are the most common visa types that this impacts:
- Temporary Work Visa holders, Dependents: H1B, H4 L1, L2, H2, E, Others.
- Students, Exchange Visitors, Dependents: F1, F2, J1, M, Others.
- Visitors: B1, B1/B2, etc.
- Illegal Immigrants: All illegal/undocumented immigrants without legal status or paperwork.
- All other non-immigrant visas. You can check the full list of temporary non-immigrant visas
Executive Order Effective Date: The executive order will be effective 30 days from the date of signing of the order. As the order was signed on January 20th, 2025, the effective date is February 19th, 2025.
Impact for Children Born: All children born in the US on or after February 19th, 2025, will be subject to this executive order unless something changes before that based on lawsuits filed in court.
Now that we know what the executive order says and who it impacts, let’s look at the US Constitution and what the birthright citizenship section in it says.
Birthright Citizenship as per the 14th Amendment of the US Constitution
The aspect of birthright citizenship is an integral part of the US Constitution. It was introduced as part of the 14th Amendment to the US Constitution. This was done after the Civil War, passed by Congress in June 1866 and later ratified in July 1868.
The Fourteenth Amendment of the US Constitution recognizes people born in the US as American Citizens and gives them equal rights (both civil and legal). This amendment was done back then as part of the reconstruction program to provide equal rights to black citizens.
All persons born in the US and subject to US Jurisdiction: The key part relevant to birthright citizenship is Section 1 of the Fourteenth Amendment, which clearly states that all persons born in the US and subject to the US Jurisdiction are citizens of the US and the State where they reside. It has no clauses that the person’s parents must be US Citizens or Permanent Residents.
As per the constitution, only two sets of people do not fall under the US Jurisdiction and for whom the birthright citizenship does not apply to:
- Diplomats: People who are born to foreign diplomatic officers in the US as they have diplomatic immunity.
- Lawful Foreign Military Soldiers: People born in the US to Lawful enemy combatants (soldiers of the foreign military) as they enjoy enemy combatant immunity.
Other than the above two sets of people, everyone born in the US are subject to the US Jurisdiction, including illegal immigrants.
Below is the screenshot of the 14th Amendment’s section 1.
US Supreme Court’s past decisions on Birthright Citizenship
To understand if the current executive order will stand in the court or not, we must review how the US Supreme Court handled past cases related to birthright citizenship.
One of the most quoted cases related to birthright citizenship is the case of “United States v. Wong Kim Ark, 169 U.S. 649 (1898)“. Below is a short summary of the case:
- Wong Kim Ark was born in the US to his parents, who were Chinese citizens at that time, while doing business and living in California.
- The first time, he left the US for a temporary visit and, when returning to the US, was allowed to enter the US.
- The second time, when he left the US for a temporary visit to China and when returning back, he was not allowed to enter, stating that he was not a US Citizen.
- It went to the US Supreme Court, and they gave judgment that as per the 14th Amendment of the US Constitution, Won Kim Ark is a US Citizen.
- As per this judgment, parents do not have to be US Citizens or permanent residents to get US Citizenship. They are subject to US jurisdiction as they live in the US, so the 14th Amendment applies to their child if born in the US.
- Below is the screenshot of the summary of the judgment. You can read the full court opinion of 84 pages at United States v. Wong Kim Ark, 169 U.S. 649 (1898)
In addition to the above main case, below are the two other related US Supreme Court cases that support the birthright citizenship:
- Plyler v. Doe (1982): This case is not directly about birthright citizenship but mainly about the rights of children of undocumented immigrants, in which there are references to the 14th Amendment, and says that all have equal protection, even if they are children of undocumented parents. Read more at Plyer v. Doe
- Elk v. Wilkins (1884): This case is around excluding native Americans from birthright citizenship as they were not considered to be under US jurisdiction and part of sovereign tribes. This was later changed as per the “Indian Citizenship Act of 1924” and then onwards they also received birthright citizenship. Read more at Elk v. Wilkins.
Let’s now look at how these past decisions impact the executive order.
Past Supreme Court Decisions Impact on Ending Birthright Citizenship EO?
Below is how each of the US Supreme Court decisions will impact the executive order on ending birthright citizenship by Trump:
- United States v. Wong Kim Ark: In the case, both the parents were not US citizens during the person’s birth. The US Supreme Court referenced the 14th Amendment and said that a person was born in the US, so he is a US Citizen as their parents were subject to the jurisdiction.
- H1B, L1, Other Work Visas: Current work visa holders in the US on H1B, L1, and others fall in this exact scenario as in this case. So, technically, as per this case’s judgment, all kids born to temporary work visa holders(on H1B or others) in the US would be US Citizens.
- Plyler v. Doe (1982): This case is focused on undocumented immigrant kids, and it is also in favor of giving equal rights to kids of undocumented immigrants as they are technically citizens as per the 14th Amendment.
- Kids of Undocumented Immigrants: As per this case, technically, kids of undocumented kids also will become US Citizens as they are subject to the jurisdiction and equal rights.
- Elk v. Wilkins (1884): This case is around clarification of who falls under the jurisdiction of the US, and it highlights that everyone except diplomats’ kids and lawful foreign soldiers’ kids are not subject to the US Jurisdiction. This also helps clarify that everyone other than these two sets of people born will be subject to birthright citizenship.
In short, all of the above-referenced US Supreme Court decisions support birthright citizenship as per the 14th Amendment, and there are no restrictions that the parents have to be US Citizens or Green Card holders. So, the chances of the executive order succeeding in court are limited as these are not in favor of Trump’s EO.
Impact of Trump’s Birthright Citizenship ending EO on H1B, L1, Others
Technically, as of now, the executive order is still not struck down by courts, and it will come into effect starting from Feb 19th, 2025. If it ever comes into effect, then it will have an impact, and all the kids born to H1B, H4, L1, L2, F1, F2, and Other visas will not be US Citizens.
Now, looking at the past Supreme Court decisions and our analysis as describe above, the chances of this making it through the courts are very slim. So, ideally, temporary work visa holders may not have an impact, if this EO is stuck by courts or at least gets an order to stop this EO from going into effect.
This EO related litigation can be dragged in courts for a while, we need to wait and see how long it goes on. We will keep you all posted on the blog.
Lawsuits filed on Trump’s ending Birthright Citizenship EO – Blocked by Judges
There are a ton of lawsuits filed opposing the Trump’s Executive order on ending the birthright citizenship.
- More than 20 Democratic States sued to block President Trump’s EO on ending birthright citizenship.
- ACLU sues to block the Trump’s EO.
Below are the latest updates and rulings by the Judges on the Trump’s EO
Judges Continue to Block Trump EO on Birthright citizenship
- Feb 14th, 2025: Fourth Judge blocks Trump EO, check AP News
- Feb 10th, 2025Third Judge blocks Trump EO – AP News
Preliminary Injunction for Trump Executive Order
- On February 6th, a Federal Judge issued a preliminary injunction blocking the Trump EO to end the Birthright Citizenship
- In layman’s terms, a preliminary injunction is nothing but a temporary court order that will block the implementation or issue in discussion until a judgment or final ruling is done in the case. It technically puts everything as it works today without any changes or harm to anyone involved in the case. In context of the Trump EO, basically it is blocked until the decision is made on it. You can read more at : Reuters News – Judge gives Injunctionf or Trump EO
Trump Executive Order Temporarily Blocked by Federal court
The first arguments were heard in courts today, Thursday, Jan 23rd, 2025 and below is the update:
- A federal judge temporarily blocked President Donald Trump’s executive order to end birthright citizenship. It applies nationwide.
- This blocking of the EO is valid for 14 days and prevents the Trump administration from implementing any of the changes proposed in the executive order for 14 days.
- There is another hearing scheduled on Feb 6th, 2025, to decide if the EO needs to be blocked for the long term.
- Below are the screenshots of the headlines as of Jan 23rd, 2025 11 PM EST.
- You can read more in the articles below:
Common FAQs
As of February 2025, the Trump Executive order is blocked nationwide by Injunction. So, your kid will get US Citizenship.
Technically, even if the EO goes into effect, your kid will get their parent’s birth country citizenship by default. So, there is no advantage of leaving the US. On the other hand, it may even be advantageous if the EO is canceled by courts in the future, then your kid will get US citizenship. So, you will not lose anything by staying in the US.
Multiple judges have already blocked the EO. We may not get a final decision right away, but it will likely be temporarily blocked while the courts hear the arguments. It can take years to get a decision from the courts due to arguments and procedures involved.
What are your thoughts on Trump’s ending of the Birthright citizenship Executive order? Will it be blocked? Share your thoughts in the comments section below.
Is this lottery essential in the current situation.Mostly they will deckine
Sudha,
What lottery are you talking about? related to Birth right?
VP language’s deaf 347 619 0134
The real question is, if the order goes through and citizenship is not granted how to proceed with dependent visa for new born from USA. Most of us don’t care about citizenship, it’s about legal status which accounts for Insurance and travel
PK,
Frankly, no one knows at this point. We just need to wait and see how it pans out. To be honest, many do care about the citizenship…
Good
. Please keep updating triggered news on my email sng.nandhan@gmail.com