The Department of Homeland Security (DHS) plans to broaden the list of individuals exempt from receiving birthright citizenship. This change involves offering green cards instead. Although not yet published in the Federal Register, DHS announced intentions to prevent children of foreign government employees from gaining citizenship under the 14th Amendment. This expansion diverges from the previous limitation of citizenship only for children of diplomats or ambassadors.
The move aligns with the Trump administration’s efforts to restrict birthright citizenship. This follows the U.S. Supreme Court’s June ruling affirming the citizenship of any child born on U.S. soil according to constitutional amendments.
Provisions of the Rule
DHS proposes to replace the current regulations for children of foreign diplomatic officers with a broader category of ‘foreign government employees.’ According to the new rule, a person born in the U.S. to such employees “is not subject to the jurisdiction of the United States for purposes of birthright citizenship” unless a parent is a U.S. citizen.
The expanded category would include:
- Foreign diplomatic officers accredited to the United States.
- Nationals working in foreign embassies or consulates.
- Individuals serving foreign governments in official roles.
- Employees of international organizations with immunity.
These individuals can apply for lawful permanent resident status via an existing immigration process. If approved, they become permanent residents from birth.
David Bier, director of immigration studies at the Cato Institute, criticized the rule, stating, “DHS lacks authority to declare certain individuals not subject to U.S. jurisdiction. Foreign government employees, except ambassadors, remain under U.S. law, indicating they are within jurisdiction, as affirmed by the Supreme Court.”
Link to Trump’s Citizenship Efforts
DHS says the rule is a response to Executive Order 14418, signed by President Trump on August 6, called “Continuing to Protect the Meaning and Value of American Citizenship.” The order prompted DHS to block citizenship documents for specific U.S.-born individuals whose parents are within particular categories.
The rule often references the administration’s interpretation of the 14th Amendment’s Citizenship Clause. DHS asserts that children of foreign employees fall outside its scope when neither parent is a U.S. citizen.
Differentiating from Diplomat Exceptions
A key distinction of DHS’s rule is that it doesn’t merely outline the existing diplomat exception. Historically, children of accredited diplomats were treated differently since diplomats are outside U.S. jurisdiction, resulting in non-automatic citizenship.
Prior DHS regulations allowed diplomats’ children to attain permanent residency. The new proposal considerably extends coverage. The agency identifies the rule’s broader definition of ‘foreign government employee’ compared to previous restrictions limited to children of diplomatic officers.
This proposal expands the exemption to include a wider range of embassy staff, consular employees, and international organization workers. This new interpretation will likely spark legal debates over U.S. jurisdiction parameters.
Litigation and Future Developments
DHS acknowledges ongoing legal challenges. A case, Casa Inc. v. Trump, contests the administration’s birthright citizenship measures. DHS notes that the implementation will comply with existing court orders, pending governmental relief from the injunction.
The admission highlights the uncertain legal landscape influencing the administration’s citizenship policies, suggesting upcoming court battles regarding the Fourteenth Amendment.
The regulation is set for Federal Register publication on September 9, effective immediately as an interim rule. DHS will accept public comments. The rule applies to future births and doesn’t affect earlier ones.
The main question is whether courts will approve the administration’s broader birthright exemption interpretation. While diplomatic exceptions are recognized, the rule attempts to apply these conditions to more foreign personnel, viewing it as a significant step in redefining birthright citizenship limits in America.
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