Recent Developments on Birth Right Citizenship
On January 20th 2025, President Donald Trump signed Executive Order 14160, titled "Protecting the Meaning and Value of American Citizenship". This order aimed to end birthright citizenship for certain children born in the United States. The order specifies that children born to mothers who are either unlawfully present or temporarily in the U.S. on visas, and whose fathers are neither U.S. citizens nor lawful permanent residents, would no longer automatically receive U.S. citizenship. This policy was set to take effect on February 19, 2025.
The executive order was immediately challenged in the courts by a coalition of 22 state attorneys general, along with civil rights and immigrant advocacy groups. These groups have filed lawsuits arguing that the order violates the Fourteenth Amendment of the U.S. Constitution, which guarantees citizenship to nearly all individuals born on U.S. soil.
As of mid-February 2025, numerous federal judges have issued preliminary injunctions blocking the executive order's implementation, as described below:
The U.S. Department of Justice has appealed these rulings, indicating that the legal battle over the executive order is ongoing. The final resolution will likely be determined by the U.S. Supreme Court, so it may be useful to examine the history of U.S. Supreme Court precedent on this topic.
In the past, the U.S. Supreme Court has consistently upheld birthright citizenship under the Fourteenth Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The main Supreme Court case that dictates the law on this issue is United States v. Wong Kim Ark (1898).In this decision, the Supreme Court ruled that a child born in the U.S. to non-citizen parents (who were legally present) was automatically a U.S. citizen. The court wrote–
“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States.” (169 U.S. 649)
This case established that birthright citizenship applies to almost all children born on U.S. soil, regardless of their parents’ nationality or immigration status, and was re-affirmed more recently in other Supreme court cases. For example, in Plyler v. Doe (1982), the U.S. Supreme Court reaffirmed that the Fourteenth Amendment applies to children of undocumented immigrants and ruled that,"no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident immigrants whose entry into the United States was lawful, and resident immigrants whose entry was unlawful." In Hamdi v. Rumsfeld (2004), the U.S. Supreme Court recognized the citizenship of Yaser Hamdi, who was born in Louisiana to Saudi Arabian parents staying on a temporary work visa.
As of February 18, 2025, the U.S. Citizenship and Immigration Services (USCIS) has not issued public guidance regarding Executive Order 14160. Given the lack of specific USCIS guidance and the ongoing legal challenges resulting in preliminary injunctions blocking the order's implementation, there is currently no requirement for newborns to apply for a visa or file Form I-485 for Adjustment of Status. As a result of the executive order being temporarily blocked by multiple federal judges, its enforcement is currently on hold. Therefore, the existing interpretation of birthright citizenship under the Fourteenth Amendment remains in effect.
About Attorney Bennett Wisniewski
Attorney Bennett Wisniewski is a Senior Attorney at Attorney at Zhang & Associates, PC. With over 18 years of experience in business immigration law, he has successfully handled hundreds of immigration cases, including EB1A, EB1B, NIW, O-1 visa, and Adjustment of Status or Consulate Processing cases.
For more information about legal services, please contact Attorney Bennett Wisniewski at bwisniewski@hooyou.com.
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
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(02/20/2025)