06 Aug 2025 Update On Trump’s Birthright Citizenship Ban
As most people are aware, on January 20, 2025, Pres. Trump issued an executive order that reinterprets the 14 th amendment of the U.S. Constitution, by stating that certain children born in the U.S. will no longer be considered U.S. citizens “at birth.” These “non-citizens” include:
- Children whose mothers are out of status or here on temporary nonimmigrant visas; and
- The father is neither a green card holder nor a U.S. citizen.
Trump’s reasoning is that birthright citizenship under the 14 th Amendment requires that the parents and/or child be “subject to the jurisdiction” of the United States. Trump’s executive order states that the above referenced children will no longer be considered to be “subject to the jurisdiction” of the United States and therefore will no longer be U.S. citizens at birth. This is because their mother, who is out of status or on a temporary nonimmigrant visa, still holds allegiance or loyalty to her home country and therefore is not subject to the jurisdiction of the
U.S.
Trump had hoped to end the practice of women coming to the U.S. for “birth tourism,” where they enter on a nonimmigrant visa, and give birth to a child, who is now a U.S. citizen and entitled to every form of public assistance they can apply for.
Currently, there is a preliminary injunction in place, temporarily halting Trump’s efforts to enforce this executive order. However, on July 25, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued an “Implementation Plan,” providing further guidance on how Trump intends to implement his executive order “in the event that it is permitted to go into effect.” This is because, in issuing the preliminary injunction, the court noted that nothing in its order should be construed as preventing the Trump administration to “develop and issue public guidance about the Executive’s plans to implement the Executive Order.”
In other words, even though there is a preliminary injunction in place now, the Trump administration is already publishing its plans on how it intends to enforce its new birthright citizenship restrictions, as though they were anticipating being successful once the case reaches the U.S. Supreme Court.
The implementation plan basically defines certain legal terms, as found in the initial executive order, such as the meaning of:
- “Unlawfully present,” which is an alien who has remained in the U.S. after the expiration of the period of stay authorized by the Atty. Gen., or present in the United States without being admitted or paroled. In other words, out of status or never had any kind of legal status because they snuck across the border.
- “Lawful but temporary” presence in the U.S. This primarily includes mothers who entered on nonimmigrant visas, such as tourist visas, working visas, etc. Even though they may still be in valid nonimmigrant status, if they give birth in the U.S., the child would not be considered a U.S. citizen unless the father was a U.S. citizen or lawful permanent resident. According to the implementation plan, these children would acquire the derivative visa status of their parents, versus U.S. citizenship. In other words, if a pregnant woman is visiting the U.S. and gives birth, the child would not be a U.S. citizen but instead would be considered a visitor along with the child’s mother.
While the court’s injunction is still in place, and children born in the U.S. may still be considered U.S. citizens, Trump seems determined to restrict birthright citizenship and no longer allow mothers to come to the U.S., whether on nonimmigrant visas or sneaking across the border, giving birth (many times at taxpayer expense), and having that child be considered an automatic U.S. citizen, entitling the family to even more taxpayer benefits. I will continue to monitor developments on this issue and report back to you.
WEBSITE: www.gurfinkel.com
Follow us on Facebook.com/GurfinkelLaw, YouTube: US Immigration TV and Instagram.com/gurfinkellaw
Four offices to serve you: LOS ANGELES; SAN FRANCISCO; NEW YORK:
TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)
PHILIPPINES: +632 8894-0258 or +632 8894-023