An Analysis of the Impact on Children of Legal Immigrants in Temporary Visas Such as F or H-1B

Author: Attorney Zhou Jian (jzhou@hooyou.com)

On January 20, 2025, President Trump, after returning to the White House, signed an executive order to abolish automatic birthright citizenship. The executive order challenges the Fourteenth Amendment of the U.S. Constitution, ending the automatic granting of citizenship to children born in the U.S. to parents without U.S. citizenship or permanent residency. Although the policy is nominally aimed at undocumented immigrants, the executive order practically treats individuals with legal status the same as undocumented immigrants. For example, even legal residents in the U.S. on F student visa or H work visas will not have children born in the U.S. automatically granted citizenship unless one parent holds a green card or is a U.S. citizen.

I. Specific Provisions and Implementation of the Executive Order

The executive order specifically states:

• If one parent is a U.S. citizen or lawful permanent resident (green card holder), the child obtains U.S. citizenship at birth in the US.
• If both parents lack U.S. citizenship or green cards and are on temporary visas (such as student, work, or travel visas) or illegally stay in the US, the child is ineligible for U.S. citizenship.
• This order applies to children born in the U.S. on or after February 19, 2025.

The order mandates that all federal agencies will no longer recognize the citizenship of such children. Consequently, children in these circumstances will be denied U.S. passports. Furthermore, they may face additional barriers when accessing other federal benefits.

II. Significant Emotional and Practical Impacts on Immigrant Families

The executive order has profound implications for immigrant families in the U.S. on H1B, F1 and other temporary visas. For example, Indian immigrants, who face massive backlogs for green cards, may need to wait 15 to 20 years to secure permanent residency through employer sponsored petition due to country-specific caps. During this time, children born to such couples in the U.S. will not automatically receive citizenship. This not only disrupts long-term family plans but also negatively impacts the children’s well-being, growth, and educational opportunities in the U.S.

III. Impact on America’s Global Appeal and Competitiveness

This executive order could undermine America’s reputation as a "land of dreams." Talented individuals, such as F1 STEM students and H1B high-tech professionals, who aspire to bring their families to the U.S. for a better future, may feel discouraged. The policy dampens their desire to stay in the U.S., which could lead to a loss of global talent.

America’s allure as a global beacon of freedom and prosperity owes much to its legal foundations, including birthright citizenship. The new executive order inevitably harms the country’s ability to attract and retain global talent.

IV. Legal Implications and Future Prospects

• Constitutional Foundation: The Fourteenth Amendment of the U.S. Constitution has long guaranteed birthright citizenship, affirming that citizenship is not determined by the parents' status. This was upheld in an 1898 Supreme Court case, with an exception for children of diplomats.
• Unclear Status: The executive order leaves unanswered questions about the legal status of children born in the U.S. without citizenship. Will they receive green cards or assume the same status as their parents? This is particularly pertinent for children of F1, H1B and other temporary visa holders, raising questions about reapplying for visas or obtaining a status similar to that of children of diplomats.  Some children may become stateless.
• Legal Challenges: The executive order is likely to face judicial challenges. Organizations such as the American Civil Liberties Union (ACLU) have already filed lawsuits seeking to halt its implementation. Before final court rulings, temporary injunctions may prevent irreversible consequences for children born after February 19, 2025.

The legal challenge over birthright citizenship will ultimately be decided by the U.S. Supreme Court. The Court’s decision will have far-reaching implications for America’s fundamental legal principles and national values. If the Court upholds birthright citizenship regardless of parental status, the U.S. will remain a welcoming nation for global talent. However, if the Court revokes birthright citizenship, it could mark the end of America as an immigrant-friendly nation and potentially a turning point in human history.

Note: The full text of the executive order can be found at:

https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-meaning-and-value-of-american-citizenship/

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, I-485 I-130, H-1B, O, L and J cases. In the past over twenty years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(01/22/2025)