USCIS Releases Implementation Plan for Executive Order Restricting Birthright Citizenship

U.S. Citizenship and Immigration Services (USCIS) has issued a comprehensive implementation plan for Executive Order 14160, titled “Protecting the Meaning and Value of American Citizenship.” President Donald Trump signed the executive order on January 20, 2025. This order aims to redefine the scope of birthright citizenship under the 14th Amendment by excluding certain categories of children born in the United States from automatically acquiring U.S. citizenship at birth.

The USCIS memorandum outlines the agency’s intended approach to enforcing the order. This preparation is proceeding despite a preliminary injunction currently blocking its implementation, as established in Barbara v. Trump. The agency is preparing for potential future approval to execute the order and has provided detailed guidance on its legal and operational framework.

The executive order addresses the interpretation of the 14th Amendment’s clause granting citizenship to individuals born on U.S. soil “subject to the jurisdiction” of the United States. It specifies that two groups of children born in the U.S. would no longer be considered citizens at birth: those whose mother was unlawfully present in the U.S. at the time of birth and whose father was neither a U.S. citizen nor a lawful permanent resident, and those whose mother was in the U.S. on a lawful but temporary status (such as under the Visa Waiver Program or a student, work, or tourist visa) and whose father was neither a U.S. citizen nor a lawful permanent resident.

This represents a significant adjustment to the traditional interpretation of birthright citizenship, which has historically applied to most individuals born on U.S. soil, regardless of their parents’ immigration status.

The USCIS implementation plan addresses three key legal and operational questions to facilitate potential enforcement. First, it defines “unlawfully present” based on the Immigration and Nationality Act (INA) Section 212(a)(9)(B)(ii), which describes an alien as unlawfully present if they remain in the U.S. after the expiration of an authorized stay or without having been admitted or paroled. USCIS clarifies that individuals in lawful immigration status or those paroled are not considered unlawfully present, nor are those without lawful status but in a “period of stay authorized” (e.g., with pending applications or specific protections). The plan emphasizes that unlawful status and unlawful presence are distinct concepts, noting that parolees, for example, may lack lawful status but are not considered unlawfully present.

Second, the plan categorizes “lawful but temporary” presence, listing immigration statuses that fall under this designation. These include aliens granted withholding or deferral of removal under the Convention Against Torture, those with voluntary or satisfactory departure, beneficiaries of IMMACT 90 or LIFE Act Family Unity programs, nonimmigrants (including dual-intent categories like H-1B visa holders and T and U nonimmigrants), citizens of certain Pacific nations under Compacts of Free Association, parolees, Temporary Protected Status (TPS) beneficiaries, Visa Waiver Program entrants, and recipients of deferred action or Deferred Enforced Departure (DED).

The plan acknowledges ongoing debate over whether deferred action and DED constitute “lawful status” but states that this distinction is not relevant for the executive order’s purposes. In contrast, permanent or non-temporary statuses include American Indians born in Canada under INA 289, asylees, conditional permanent residents, lawful permanent residents, refugees, and U.S. nationals who are not citizens.

Third, the plan addresses the status of children born to mothers in lawful but temporary status and fathers who are not U.S. citizens, lawful permanent residents, or U.S. nationals. Such children would not acquire U.S. citizenship at birth under the executive order. To mitigate potential immigration consequences, USCIS proposes expanding the existing practice under 8 CFR 101.3, which allows children of diplomats (not subject to U.S. jurisdiction under 8 U.S.C. 1401(a)) to register for lawful status. The agency plans to extend this registration process to children of parents with lawful but temporary status, enabling them to acquire the same lawful status as at least one parent. Until regulatory changes are implemented, the Department of Homeland Security (DHS) would propose deferring immigration enforcement against these children.

The implementation plan is currently on hold due to the preliminary injunction in Barbara v. Trump. However, the court has permitted agencies to issue public guidance on the order’s implementation, citing consistency with the Supreme Court’s ruling in Trump v. CISA, Inc. USCIS is utilizing this allowance to prepare for potential enforcement if the injunction is lifted or the order is upheld. If implemented, Executive Order 14160 could affect thousands of children born in the U.S. annually.