On August 6, 2026, President Trump signed two executive orders that materially raised the stakes for foreign nationals traveling to the United States and the employers who sponsor them.
The first order states that it implements the Supreme Court’s June 30, 2026, decision in Trump v. Barbara by directing federal agencies to withhold citizenship recognition from children born to certain categories of noncitizen parents. The second, the birth tourism executive order titled Ending Birth Tourism, authorizes the Department of State (DOS) and the Department of Homeland Security (DHS) to deny, revoke, or permanently bar entry for travelers found to have entered the United States on a nonimmigrant visa for the purpose of giving birth here.
Citizenship Executive Order
In Trump v. Barbara, the Supreme Court held that the Fourteenth Amendment’s Citizenship Clause extends birthright citizenship to children born in the United States to parents “for whom no extraterritorial fiction applies,” a phrase the Court drew from case law addressing diplomats and others treated as outside U.S. sovereign authority despite their physical presence. Under the August 6th Executive Order, agencies will not issue or recognize citizenship documents for a child when neither parent is a U.S. citizen and any of the following four conditions apply:
- A parent is classified as an alien enemy under existing terrorism designations;
- A parent is a foreign government employee, a category that includes ambassadors, consular staff who are nationals of that country, other foreign government officials, and employees of international organizations who hold immunity;
- A parent engaged in a commercial transaction or fraud to secure a U.S. birth, including paying for a mother’s presence in the United States or a U.S. territory to give birth, or using a surrogate present here for that purpose; or
- The child was born in a U.S. territory where citizenship is not conferred by federal statute.
The Executive Order directs federal agencies to issue implementation guidance within 30 days, or by early September 2026.
Birth Tourism Executive Order
The birth tourism executive order defines birth tourism as entering the United States on a nonimmigrant visa for the express purpose of giving birth in the country or facilitating someone else’s entry for that purpose. It delegates authority under Section 215(a) of the Immigration and Nationality Act to the Secretaries of DOS and DHS to deny visas, revoke visas and permanently bar reentry, deny entry, or remove travelers found to have engaged in, or who plan to engage in birth tourism. It further authorizes the Secretaries of DOS and DHS to take action against individuals or organizations that facilitate these actions. The Secretaries retain discretion to grant humanitarian or national-interest exemptions, but the order does not lay out a defined process for determining who falls within the scope of this exemption.
What This Means for Travelers
For any foreign national traveling to the United States on a nonimmigrant visa, the birth tourism executive order creates additional exposure. A consular officer or a Customs and Border Protection (“CBP”) officer who concludes that a traveler entered, or intends to enter, for the purpose of giving birth in the United States can now deny a visa, revoke one already issued, permanently bar future entry, or seek removal, without a defined process for reaching that conclusion. This risk is not limited to travelers who are visibly pregnant at the time of travel. The order’s language reaches a person who plans to engage in birth tourism, which means travel timed around a due date, or travel that an officer characterizes as suspicious for other reasons, could trigger scrutiny. Travelers who are pregnant, or who are traveling with or on behalf of someone who is, should assume that a nonimmigrant visa application or entry attempt during this period may draw additional questioning.
Because the Executive Order directs federal agencies not to issue or recognize certain citizenship documents, it creates uncertainty regarding how affected children will obtain proof of status and documentation for purposes such as international travel and reentry to the United States. In many households, family members hold different citizenship or immigration statuses. By directing federal agencies not to recognize U.S. citizenship for certain U.S.-born children, the Order raises questions about what documentation those children may receive and how their status will be treated by federal agencies. Depending on future agency guidance, families could face complications involving proof of identity, eligibility for government-issued documents, international travel, and interactions with immigration authorities. The practical implications remain uncertain because federal agencies have not yet issued implementing guidance.
What This Means for Employers
Employers should treat this as an immediate advisory matter rather than a distant policy development. Any foreign national employee, or an employee’s spouse or family member, who is pregnant and planning international travel on a nonimmigrant visa should speak with immigration counsel before that trip is booked. HR teams supporting internationally mobile employees should:
- Flag upcoming international travel by an employee or dependent who is pregnant for immigration counsel review before the trip is booked
- Confirm whether any employee’s child was born, or will be born, in a U.S. territory, since territorial births now fall within the citizenship order’s exclusion categories
- Route any employee question about a child’s citizenship status, or about questioning received during travel, to immigration counsel rather than to HR generalists
Employers do not bear direct legal exposure under either order, but an employee who loses visa eligibility or faces a permanent entry bar can lose work authorization and the ability to return to a U.S.-based role, which is an operational risk for the sponsoring employer.
Looking Ahead
The new Executive Orders have already become the subject of renewed litigation. On August 11, 2026, a coalition of the organizations that successfully challenged the Administration’s earlier birthright citizenship Executive Order, including the American Civil Liberties Union (ACLU) and several affiliated civil rights groups, returned to federal court in New Hampshire seeking to block implementation of the new orders. The Plaintiffs argue that the orders impermissibly attempt to expand the narrow historical exceptions to birthright citizenship recognized by the Supreme Court in Trump v. Barbara and therefore conflict with the Fourteenth Amendment’s Citizenship Clause. The groups have asked the court either to clarify that the injunction already in place from when it brought the Trump v. Barbara litigation prohibits enforcement of the new order or to issue a new injunction preventing the government from implementing the Executive Orders while the new litigation proceeds.
This remains a rapidly evolving and developing area. Federal agencies have been directed to issue implementing guidance in the coming weeks, while legal challenges are already underway. As a result, the ultimate scope, application, and enforceability of these Executive Orders remain uncertain and may change significantly as litigation and agency implementation efforts proceed.
Klasko Immigration will continue to track implementation guidance as agencies issue it. Employers and individual travelers with questions about a specific trip, a specific employee’s family circumstances, or a child’s citizenship status should contact their Klasko attorney before making travel decisions.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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