October 6, 2025, began the new U.S. Supreme Court term, and it remains unclear whether the Court will take up the Trump Administration’s recent request for review of a challenge to the constitutionality of the January 20, 2025, Executive Order on birthright citizenship (EO).
This client alert recaps the first birthright citizenship SCOTUS decision, intervening court cases, policy memo, and what a decision to accept the case could mean for the Fourteenth Amendment. Building on our client alert, “Supreme Court Decision Continues Legal Battle Over Birthright Citizenship,” we also explore how an implementation memo would operate in practice and what clients should anticipate while the Supreme Court considers whether to hear the case.
Recap of Supreme Court Ruling
In its June 27 decision in Trump v. CASA, Inc., the Supreme Court did not address the merits of the birthright citizenship EO “Protecting the Meaning and Value of American Citizenship”. Instead, the Court narrowed the scope of the lower courts’ nationwide injunctions that blocked its implementation, limiting them to the parties involved. SCOTUS directed the lower courts to revise their orders “expeditiously,” and pushed the EO’s effective date back to July 28, 2025. While that date has now passed, subsequent lower court rulings have kept the EO on hold, as discussed below.
Subsequent Court Rulings & The Rise of Class Actions
In July 2025, the U.S. Court of Appeals for the Ninth Circuit upheld a nationwide preliminary injunction, agreeing that broad relief was necessary to prevent irreparable harm to the plaintiffs. This appeal arose from a February 2025 decision by the U.S. District Court for the Western District of Washington, which had blocked the EO in a suit brought by a coalition of states: Arizona, Illinois, Oregon, and Washington. In doing so, the Ninth Circuit sent a signal of its view on the merits, concluding there is a “strong likelihood” that the EO is invalid because it contradicts the plain language of the Fourteenth Amendment.
Similarly, on October 3, 2025, the First Circuit Court of Appeals upheld the nationwide injunction. The latest appeals court decision marks the fifth federal court since June to either issue or uphold orders blocking the EO.
Throughout the various cases this summer, the Trump Administration indicated that it planned to ask the Supreme Court to take up the question of the constitutionality of birthright citizenship imminently. On Friday, September 26, the Administration did so. Specifically, the Administration cited the ruling by the 9th Circuit, as well as the district court decision in New Hampshire.
The July 25 USCIS Memo
On July 25, 2025, U.S. Citizenship and Immigration Services (USCIS) released a memorandum outlining how the Trump Administration intends to implement its birthright citizenship policy in the event that it prevails in the courts. The memorandum provides new definitions of “unlawfully present” and “lawful but temporary” presence and specifies which categories of children would no longer be recognized as U.S. citizens at birth: changes that, if implemented, would have sweeping consequences for mixed‑status families, temporary visa holders, and other noncitizen populations.
The USCIS memo does not recognize the U.S. citizenship of certain children whose mother is “unlawfully present” or whose mother was present in a “lawful but temporary” status if the father is not a U.S. citizen or lawful permanent resident at the time of birth. The “lawful but temporary” category broadly encompasses most nonimmigrant visa holders, TPS beneficiaries, and Visa Waiver Program entrants, among others.
Potential Impacts of Birthright Citizenship Restriction Policy
The USCIS implementation memo could affect a broad range of temporary visa holders, humanitarian beneficiaries, and mixed-status families. These include, but are not limited to:
- A child born to a mother whose nonimmigrant status, such as an H-4, is pending might also have “pending” citizenship status.
- A child born to an F-1 parent who violated their duration of status (D/S) by unauthorized employment might also be deemed in violation of immigration status and potentially subject to removal.
- A child born to parents who applied to adjust status based on an employment-based sponsorship, who are waiting for a green card number to be available from their country, would have no certainty of becoming a U.S citizen.
- A child born to a mother with DACA who has spent years in the United States and to a father on an H-1B visa leading a team at a tech company in Texas, would have no certainty of becoming a U.S citizen.
- A child born to a Ukrainian mother living in the United States who fled Russia’s invasion and was granted Temporary Protected Status (TPS) as the father remains fighting for the Ukrainian army, would not have certainty of becoming a U.S citizen.
- A child born to a Haitian mother who recently fled political violence and instability, paroled into the country only months ago, while her partner claims asylum, would have no certainty of becoming a U.S. citizen.
Concerns About Inconsistent Application
If the Supreme Court were to further restrict national injunctions and allow the implementation of this policy, it could take effect in some states but be blocked in others. As a result, if a mother traveling for work from Arizona to Nevada goes into labor unexpectedly, then her baby, delivered in a Nevada hospital, would not be recognized as a U.S. citizen, while a baby born a few days earlier at her home hospital in Phoenix would be recognized as a U.S. citizen. A family living near the New Jersey–Pennsylvania border could have two very different outcomes depending on which side of the state line their child is born on while visiting relatives.
Concerns About Stateless Children
This policy implementation could also result in some children being born stateless. Some countries do not automatically grant citizenship to children born abroad, or impose complex requirements that parents may be unable to meet. A stateless individual without a recognized citizenship may be denied a passport or public benefits and could lack certainty about where they could lawfully reside.
Concerns About Uncertain Enforcement
The USCIS memo also creates uncertainty about what would happen to children born without citizenship under this policy. It states that, “to fill any regulatory gaps,” the Department would propose to defer immigration enforcement against these children until new rules are in place. That language is unclear about whether it intends to only offer temporary protection from deportation or whether the government would ultimately seek to remove those children once that deferral ends.
Next Steps at SCOTUS
The Trump Administration chose not to fast-track its request, but instead allowed the case to move through the Court’s normal schedule. If at least four justices vote to hear the case, oral arguments could occur sometime in 2026, with a decision by the end of the Court’s term next summer.
We recommend that employers assess whether they have workers who may be affected, that families with pending or potential immigration applications seek legal guidance on available paths to permanent status, and that all stakeholders stay informed as litigation and additional agency actions unfold. Our team at Klasko will continue to track these issues closely and is available to advise on proactive steps to mitigate risk and plan for multiple outcomes.
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.
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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