The Supreme Court heard oral arguments this morning in Trump v. Barbara, on the Administration’s bid to eliminate “birthright citizenship” for children of undocumented and temporary foreign nationals in the U.S. Under the Executive Order being challenged, the U.S. government would no longer recognize the U.S. citizenship of children born in the United States to temporary visa holders, including F-1 students, J-1 exchange visitors, as well as H-1 and L-1 nonimmigrant workers.
While the outcome is still uncertain, the government attorneys faced tough questions from the justices, particularly from Justices Sotomayor, Jackson, Kagan, and Gorsuch.
A win for the government would mean a massive overhaul of our current immigration system and could subject young U.S.-born children to deportation, often to countries they have never known. Even if they are not deported, they will grow up unable to apply for social security numbers or passports in the U.S., preventing them from traveling freely or working. USCIS has proposed that children of nonimmigrants receive derivative status from their parents at the time of their birth if the government wins. A child born to H-1B and H-4 parents, for example, would themselves be an H-4 nonimmigrant under the government’s proposal. A win for the government would thus fundamentally shift birth in the United States from conferring permanent citizenship to merely granting temporary, contingent immigration status dependent entirely on a parent’s status.
Legal Discussion on Birthright Citizenship Before the Supreme Court
The 14th Amendment of the Constitution guarantees citizenship to babies born in the United States if they are “subject to the jurisdiction of the United States” at the time of their birth.
The arguments today focused on what the phrase “subject to the jurisdiction of the United States” means. Specifically, whether this phrase refers to everyone who is physically in the United States and subject to its laws, or only to U.S. citizens or lawful permanent residents? Does it apply to anyone who wants to live here permanently? And does its application depend on whether a child born in the United States also acquires citizenship in another country through their parents?
The Administration’s position was that the phrase “subject to the jurisdiction thereof” means “not subject to any foreign power,” and that parents need to be lawfully present in the U.S. with the legal ability to remain here permanently for their children to be born as U.S. citizens. They argue the long-held understanding of the 14th Amendment was incorrect, and that children of temporary visitors, temporary visa holders, and undocumented immigrants should be excluded from U.S. citizenship in the same way the historical interpretation always excluded certain children, such as babies born in the U.S. to Ambassadors or Tribal Indians.
The discussion delved into texts and debates from the 18th and 19th century, and English law going back hundreds of years, even Roman law. The justices also raised concerns about overturning settled law, including their own prior precedent, and accepting a new interpretation of the Constitution the Administration is proposing. A number of the justices on the court seemed to grapple with the magnitude of the decision the Administration is asking them to make.
Consequences of a Ruling in Favor of the Administration
A ruling in the government’s favor would require that the parents of all children born in the U.S. establish certain domicile requirements for their children to become U.S. citizens. Because the United States has no central registry of its citizens, one would have to be created, and every U.S. citizen would have to be able to prove not only the location of their birth, but that their parents were U.S. citizens or green card holders at the time of their birth.
If the Court allows the Executive Order to reinterpret the Constitution, nonimmigrant visa holders (H-1B, L-1, TN, etc.) would not be able to establish U.S. citizenship for their children when they are born. This will create additional hurdles for these workers to ensure that their U.S.-born children are able to stay in the U.S. USCIS has said it will recognize derivative family status (H-4, L-2, etc.) as having been obtained at birth by those children, but there is no plan as of yet for how that determination would be made or documentation of status provided to newborns.
Timing, Predictions, and Consequences
The Supreme Court’s term runs between October and June, with major decisions often being handed down in the final weeks of the Court’s term. We expect a ruling no sooner than the end of May, and likely in June, given the importance of this case.
While predicting the outcome of a case based on questions at oral argument is always challenging, the tenor of questioning from only two of the justices appeared to favor the government. To differing degrees, the other seven justices offered challenging questions to the government’s arguments that recognized the magnitude of the change in law the government has requested the Court to allow. As such, it does appear that a majority of the court will uphold the traditional understanding of the 14th Amendment as conferring U.S. citizenship on all children born in the United States, regardless of the immigration status of their parents.
If the executive order goes into effect, it will also lead to massive administrative burdens on every U.S. family, regardless of their status, as the government attempts to verify the immigration status and residence for the parents of every child born in the U.S.
The Administration’s attorney today assured the justices that a child’s eligibility would be easily evaluated by an online tool, but the reality will be extensive paperwork and legal challenges. Families may need to hire experienced immigration attorneys within months of a child’s birth to ensure their right to stay in the U.S. There are myriad immigration scenarios and living arrangements that may need to be evaluated on a case-by-case basis.
We will monitor closely for updates as the Supreme Court prepares to make its ruling.
If your organization needs assistance reviewing its workforce for employees who may be affected by these potential changes to birthright citizenship, please contact a Klasko attorney to discuss a tailored strategy and action plan. If you are a foreign national with questions about how these developments may impact your family or future plans, we encourage you to request a consultation with our team.
The material contained in this alert 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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