How USCIS Would Implement Trump’s Order Restricting Birthright Citizenship

The plan outlines new criteria for denying citizenship to some U.S.-born children and proposes alternative status options.

A pregnant illegal immigrant from El Salvador stands next to a Border Patrol truck near Rio Grande City, Texas, on Dec. 7, 2015. John Moore/Getty Images

U.S. Citizenship and Immigration Services (USCIS) has drafted an implementation plan for the enforcement of President Donald Trump’s executive order restricting birthright citizenship, in the event that a court block on the order is lifted.

The USCIS plan, released on July 25, establishes new criteria that would deny birthright citizenship to certain children born in the United States. It also outlines procedures for granting them alternative legal status tied to a parent’s immigration status.

Under the plan, children born in the United States to mothers who are either unlawfully present in the country or have a lawful, but temporary, status—such as those holding tourist, student, or work visas—would no longer be considered citizens at birth if the father is also not a U.S. citizen or green card holder.

USCIS defines “lawful but temporary” presence to include most nonimmigrant visa holders, parolees, Temporary Protected Status recipients, and those admitted under the Visa Waiver Program, among others.

By contrast, lawful permanent residents, refugees, and asylees are considered to have lawful and non‑temporary status, so their U.S.-born children would be granted U.S. citizenship at birth.

The plan also spells out procedures for children who would be denied automatic citizenship under the policy, but one or both of whose parents have lawful but temporary status.

In such cases, the agency proposes broadening existing rules that apply to the children of foreign diplomats, who are not subject to the jurisdiction of the United States. Specifically, such children would be allowed to register for any lawful status that matches at least one of the parents, rather than being left without legal recognition.

In order to provide time to fill any regulatory gaps before such regulations are finalized, USCIS recommends deferring immigration enforcement actions against such children.

The USCIS plan acknowledges a preliminary court injunction that temporarily blocks Trump’s birthright citizenship order from being enforced but notes that the injunction does not prevent executive agencies from drawing up implementation plans for the presidential directive.

Recently, a federal judge in Massachusetts upheld his nationwide block on Trump’s birthright citizenship directive, finding that a narrower injunction would not be practical. That decision came after a lawsuit was brought by a coalition of two cities and 22 state attorneys general, who argued that Trump’s order is unconstitutional.

The plaintiffs argued that the 14th Amendment guarantees citizenship to anyone born in the United States, regardless of parental status, and that Congress codified this principle in the Immigration and Nationality Act.

They claim that the president lacks the power to rewrite or nullify a constitutional amendment, and that he is not authorized by any law to limit who can obtain U.S. citizenship at birth.

If Trump’s order is allowed to stand, children born to parents who are in the United States illegally will “all become deportable, and many will be stateless,” the plaintiffs contend, arguing that this would cause them to suffer “immediate and irreparable harm.”

Further, the states would have to modify their benefit programs to account for the changes, causing them to incur significant costs.

The judge in the case, District Judge Leo Sorokin of the U.S. District Court for the District of Massachusetts, said in a July 25 opinion upholding his earlier block of Trump’s order that the states would face administrative and financial burdens if the directive were allowed to stand.

Sorokin also stated that Trump’s policy was unconstitutional and in violation of federal law, but noted that the U.S. Supreme Court will “no doubt” have to step in at some point and settle the matter.