Can a child born in the U.S. still automatically acquire U.S. citizenship?
Can a Child Born in the U.S. Still Automatically Acquire U.S. Citizenship?
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling
President Donald Trump was sworn in as the 47th President of the United States yesterday (January 20, 2025). On the very day of his inauguration, he signed a presidential executive order stripping some children born in the U.S. of the right to automatically acquire U.S. citizenship.
Section 1 of the 14th Amendment to the U.S. Constitution 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."
A direct translation reads: All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States and of the state in which they reside.
For decades, individuals born in the U.S. have automatically obtained U.S. citizenship, a right widely regarded as enshrined in the 14th Amendment to the Constitution.
President Trump, however, argues that the 14th Amendment does not grant citizenship to all persons born in the U.S. He contends that the longstanding interpretation of this constitutional clause is incorrect.
In his view, the 14th Amendment should exclude individuals born in the U.S. who are not subject to U.S. jurisdiction from obtaining citizenship.
Under the executive order signed by President Trump, the following two categories of children cannot automatically acquire U.S. citizenship:
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Children born to a mother who has no legal status in the U.S. at the time of birth, and whose father is neither a U.S. citizen nor a lawful permanent resident (green card holder).
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Children born to a mother who holds only temporary legal status in the U.S. at the time of birth (e.g., student, work, tourist, visa-free status, etc.), even if their father is a U.S. citizen or lawful permanent resident (green card holder).
Pursuant to this executive order, a child born in the U.S. can only automatically acquire citizenship if either the mother or father is a U.S. citizen or green card holder.
Therefore, the following children born in the U.S. are not eligible for automatic citizenship:
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Children born to mothers with no legal status in the U.S.
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Children born to mothers visiting the U.S. on a tourist visa.
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Children born to mothers studying in the U.S. on a student visa.
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Children born to mothers working in the U.S. on various temporary work visas (e.g., H, J, L, O, P visas, etc.).
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Children born to mothers entering the U.S. under the visa-free program.
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And others.
In summary, only children born in the U.S. to mothers who are already U.S. citizens or lawful permanent residents (green card holders) can automatically acquire U.S. citizenship.
This presidential executive order shall take effect 30 days after its publication. This means that children born in the U.S. within the next 30 days will not be subject to the order’s provisions.
Many have asked for our opinion on this executive order. We believe it will have far-reaching implications, though it is not entirely without superficial rationale. The core controversy hinges on the interpretation of the phrase "and subject to the jurisdiction thereof" in the 14th Amendment. Specifically, the question is: Who is considered subject to U.S. jurisdiction? President Trump presumably argues that the individuals covered by the order are subject to the jurisdiction of their home countries rather than that of the U.S. In our view, this line of argument lacks sufficient legal merit.
Given the executive order’s potential unconstitutionality, The Washington Post reports that more than 20 states have filed lawsuits challenging its legality. The American Civil Liberties Union (ACLU) also filed an official complaint against the Trump administration at 9:30 p.m. on January 20, contesting the order’s restrictions on citizenship rights.
It is anticipated that many more lawsuits will be filed in an attempt to block the enforcement of this presidential executive order.
In our view, this issue will ultimately be resolved by the U.S. Supreme Court through its interpretation and ruling on the relevant constitutional provisions. In the interim, it remains to be seen whether any federal judge will issue a restraining order within the next 30 days. Once a restraining order is issued, the enforcement of this executive order will be compulsorily suspended, and it is expected that the Supreme Court will ultimately render a constitutional interpretation on the matter.
The litigation process is likely to be a lengthy one. All we can do is wait patiently. I will continue to monitor this issue and promptly update readers on the latest developments regarding this event. Those interested can subscribe to our WeChat official account U.S. Immigration Insights to receive the most up-to-date information.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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