Trump's New Executive Order on Birthright Citizenship and its Implications/Challenges

By: Justin Kennedy

On his inaugural day in Office last Monday (Jan 20), Donald Trump signed numerous new Executive Orders which immigration firms and other agencies such as AILA are closely monitoring and analyzing for their impact on immigrant rights that were previously afforded by precedent and the US Constitution. One such EO, which perhaps may be one of the more controversial among others, seeks to end birthright citizenship to children born in US soil. Before the passage of Trump’s new Executive Order (‘Protecting the Meaning and Value of American Citizenship’), birthright citizenship was guaranteed to children born in the United States, regardless of the immigration status of their parents, since the turn of the 20^th Century when a landmark Supreme Court Case helped to establish the Fourteenth Amendment, which grants citizenship to anyone born or naturalized in the US.

Now with the signing of this new Executive Order, set to take effect on February 20, of this year, the executive order prohibits issuing documentation of citizenship to (1) a child born in the United States to a mother who was unlawfully present in the US and the person’s father was not a US citizen of lawful permanent resident at the time of said child’s birth; or (2) when that mother’s presence in the US was lawful but temporary, (such as, but not limited to, visiting the US under the auspices of the Visa Waiver Program, or visiting on a student, work, or tourist visa), and the person’s father was not a US citizen or lawful permanent resident at the time of the person’s birth.

Of course, one of the central challenges against this Executive Order is that it surpasses the Constitution, but furthermore, the executive order redefines legal terms to indicate that those who are denied citizenship are not in fact ‘subject to the jurisdiction of the United States,’ but in so doing, it should be noted that the jurisdiction clause in the Fourteenth Amendment applies to Native Americans and diplomats, and, by claiming that certain classes of US immigrants are not subject to the jurisdiction of the United States, the Order also would mean that said classes would not be subject to any federal immigration enforcement.

In addition to the above, the EO raises many unanswered questions for anyone who is here on a work visa but not yet a Green Card Holder. The language of the Order itself states, “under the auspices of visiting on a work visa,” yet, now it must be asked, what about a Dual Intent Work Visa? Certain work visas are only single intent (TN for example), yet others, such as H-1B and L1 are dual-intent, meaning that they are nonimmigrant visas that allow people to temporarily stay in the US while also pursuing permanent residency. Considering the long backlog for some foreign nationals, which doesn’t allow them to file for an actual Green Card for up to 15 years or more after they enter the US, the fact that certain work visas are dual-intent at least makes it easier for those on said visas to wait for the backlog to be current. So does this mean that the new EO does not apply to those on dual-intent visas since they’re not only here on the auspices of working temporarily? If not, then would this mean that a mother and father on temporary work visas would need to file for a dependent visa for their child the moment they are born in the US?

Essentially, the EO is not very specific about different kinds of scenarios. And for the reasons listed above, among others, we anticipate it is going to be heavily challenged throughout Mr. Trump’s presidency. In fact, multiple lawsuits seeking to enjoin the EO were filed against this EO within 24 hours, including one brought by 18 states as well as San Francisco and Washington DC. Four additional states have also filed another lawsuit in the western district of Washington, and judge issued an order temporary blocking the EO on January 23.

People can surely expect this particular EO to be discussed and to progress forward with terms more clearly specified. If you have any questions about this EO, or any others recently signed by Mr. Trump, or just general immigration questions in light of the new Presidency, please reach out to immigration@chugh.com