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Quick Hits
- The new executive order, “Protecting the Meaning and Value of American Citizenship” encompasses all children born on or after February 19, 2025, on U.S. soil who do not have at least one U.S. citizen or lawful permanent resident parent.
- This change in longstanding interpretation of the Fourteenth Amendment will not apply retroactively and will only impact individuals born thirty days after the date of the order.
- Several civil rights organizations have jointly filed a lawsuit challenging the constitutionality of the executive order.
This executive order makes it such that infants who are born on or after February 19, 2025, and who do not have at least one parent in possession of LPR status and/or U.S. citizenship at the time of birth would not qualify for so-called birthright citizenship. Encompassed are all nonimmigrant visa holders, including but not limited to participants in the Visa Waiver Program, F-1 students, and B-1, B-2, H-1B, H-4, L-1, L-2, E-1, E-2, E-3, TN, and O-1 visa holders. This order applies regardless of whether the parents have been maintaining status as a nonimmigrant. The order impacts only infants born at least thirty days from January 20, 2025, and does not apply retroactively.
Several organizations have jointly filed a lawsuit challenging the constitutionality of the executive order. The lawsuit states, “[t]he Order straightforwardly violates the Citizenship Clause, as well as the birthright citizenship statute, and should be enjoined.” The Fourteenth Amendment of the U.S. Constitution, ratified in 1868, guarantees citizenship to all children born in the United States, regardless of race, color, or ancestry. The Fourteenth Amendment’s Citizenship Clause states, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In 1898, the Supreme Court of the United States, in United States v. Wong Kim Ark, affirmed that the Fourteenth Amendment extended to all children born in the United States irrespective of parent citizenship, with extremely narrow exceptions and has remained foundational in interpreting the meaning of the Fourteenth Amendment.
Next Steps
A court may grant an injunction of the executive order while the lawsuit challenging the executive order is pending. If the order is not enjoined, the order would take effect on February 19, 2025. Details on exactly how U.S. Citizenship and Immigration Services (USCIS) will execute and implement this order is yet to be determined. As a result of the order, parents on a valid nonimmigrant visa (including the H-1B, L-1, and F-1 visas) would likely need to apply for a dependent visa for their newborn children (i.e., the H-4, L-2, and F-2 visas).
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.
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