Is Nationality Determined by Birthplace or by Legal Status?

(UNITED STATES) The United States’ long-held rule that most children born on U.S. soil are citizens at birth is being tested by a new executive order and a parallel push in Congress, setting up a high-stakes fight over birthright citizenship, the Fourteenth Amendment, and the nation’s broader nationality policy.

On January 20, 2025, President Trump signed Executive Order 14160, which limits automatic citizenship for babies born on or after February 19, 2025 to parents who are either U.S. citizens or lawful permanent residents (LPRs). The order excludes children born to undocumented parents and to most nonimmigrant visa holders, such as tourists, students, and temporary workers. It does not apply retroactively. Lawsuits were filed within days, and federal agencies began preparing guidance for hospitals, states, and families.

At the same time, the Birthright Citizenship Act of 2025, introduced by Senator Lindsey Graham and Representative Brian Babin, would narrow jus soli—the principle of citizenship by birthplace—by statute, limiting it to children with at least one U.S. citizen or lawful permanent resident parent. Supporters argue this change better reflects modern migration patterns and discourages “birth tourism.” Critics warn it would create a tiered society, leave children stateless in some cases, and clash with the Fourteenth Amendment’s plain text and more than a century of Supreme Court precedent.

Constitutional background and precedent

Under the Fourteenth Amendment, ratified in 1868, “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” In 1898, the Supreme Court in United States v. Wong Kim Ark affirmed that a man born in San Francisco to Chinese subjects—who were not eligible to naturalize at the time—was a citizen at birth. That ruling has anchored U.S. jus soli for generations.

The executive order and the proposed legislation now press the courts, and the public, to decide whether that promise can be narrowed by executive or statutory action.

“An executive order cannot rewrite constitutional text,” argue civil rights groups. Supporters counter that the phrase subject to the jurisdiction limits citizenship for children of those with only temporary permission to be in the country or who are out of status.

Courts will weigh those competing arguments against more than 125 years of precedent and the Amendment’s historical understanding.

What the order changes starting Feb. 19, 2025

Executive Order 14160 bars automatic citizenship at birth for children born in the United States to parents who are neither U.S. citizens nor lawful permanent residents. The carveout for children of foreign diplomats remains, as under existing law. The order states it does not alter the citizenship of anyone born before the effective date, and it directs federal agencies to implement procedures to verify parental status for births after that date.

Key elements:

• Effective date: February 19, 2025
• Parental-status test: At least one parent must be a U.S. citizen or lawful permanent resident for the child to receive automatic U.S. citizenship at birth.
• Exclusion: Children of undocumented parents and most nonimmigrant visa holders (examples: B-2 tourists, F-1 students, J-1 exchange visitors, H-1B workers) are excluded unless a parent is a citizen or LPR.
• Diplomatic exception: Children of foreign diplomats remain covered under existing law.
• Nonretroactivity: The order does not affect births before the effective date.

What remains uncertain:

• How to treat births where a parent’s status is changing (for instance, an adjustment of status pending).
• How state vital records offices will document and verify parental status.
• What specific proofs hospitals and clerks will require at delivery.

Legal and administrative response

Civil rights groups filed suits arguing the order conflicts with the Fourteenth Amendment and Wong Kim Ark, contending an executive order cannot rewrite constitutional text. Supporters argue the “subject to the jurisdiction” clause excludes those with only temporary or no legal status.

Federal agencies, including U.S. Citizenship and Immigration Services (USCIS), have begun:

• Preparing staff training.
• Drafting guidance for state partners, hospitals, and families.
• Coordinating interagency implementation steps.

USCIS has not yet published new forms specific to this change, but the White House directive serves as the legal anchor. The administration’s materials summarize the effective date and parental-status requirement. Readers can review the official action at the White House site: White House Presidential Actions on Citizenship (2025).

Congressional push and the constitutional fight

The Birthright Citizenship Act of 2025 seeks to codify the same approach as the executive order. It would limit citizenship at birth to children with at least one parent who is a U.S. citizen or lawful permanent resident.

Supporters’ arguments:

• Close what they call a loophole encouraging unauthorized migration and temporary travel for the purpose of giving birth.
• Assert Congress has broad power over naturalization and immigration.

Opponents’ arguments:

• The bill would create a two-track system where children born in the same hospital on the same day could have different legal futures based solely on parental status.
• Wong Kim Ark focused on the fact of birth and subjection to U.S. law, not parents’ naturalizability or residence.
• Narrowing jus soli by statute would clash with the Fourteenth Amendment’s plain text.

If passed, the statute would almost certainly face constitutional challenges similar to those aimed at the executive order. The Supreme Court may be asked to revisit Wong Kim Ark, a decision with sweeping implications for families and national identity.

Human impact and practical questions

For families expecting a baby after February 19, 2025, immediate concerns include:

• Proof required at hospitals for birth registration.
• Potential delays in issuing birth certificates, Social Security numbers, and other documents.
• Future access to public benefits and passports.

Practical implications:

• Hospitals typically collect IDs but do not determine immigration status. If state vital records offices require federal status verification, delays and administrative burdens could follow.
• Parents may need to present green cards, naturalization certificates, or other evidence at time of birth.
• For non-LPR, noncitizen parents, the child’s nationality may depend on the parents’ home-country laws—creating potential risks of statelessness in some cases.

Possible legal or administrative options families might explore:

1. Acquisition of citizenship through a U.S. citizen parent living in the U.S. or abroad, if the parent meets transmission rules.
2. Future eligibility for lawful status for the child through a parent’s immigration case.
3. Documenting the child’s foreign citizenship to avoid gaps in identity documents and services.

State and local administration burdens:

• Health departments, vital records offices, and social service agencies will bear much of the administrative load.
• Training front-line staff to determine which births fall under the new limits—and what documents to request—will be time-consuming.
• Errors could produce mismatched records that are difficult to correct.

Advocates’ recommendation: Families should keep thorough records from the start, including hospital discharge papers, parents’ identity documents, and any correspondence from state or federal agencies.

International and policy context

The government’s move reopens a core debate: is nationality defined by where you are born (jus soli), by parental descent (jus sanguinis), or by a mixture of both?

• The United States has traditionally exemplified broad jus soli, alongside Canada and many Latin American nations.
• Much of Europe and Asia rely more on jus sanguinis, granting citizenship through descent even when a child is born abroad.
• U.S. law already applies jus sanguinis in several cases—e.g., a child born outside the U.S. can acquire citizenship at birth through a U.S. citizen parent if specific residence or presence requirements are met.

Consequences of change:

• Could increase the number of U.S.-born children who are citizens only of their parents’ countries.
• May affect cross-border families, dual nationality arrangements, and foreign relations.
• Nationality policy sits at the intersection of immigration, civil rights, and international diplomacy—so domestic changes have cross-border ripple effects.

Political context and next steps

The clash arrives during a heated election season. President Trump’s order fulfills a campaign promise to narrow birthright citizenship. President Biden and many Democrats argue the order runs counter to the Constitution and long-standing American tradition.

Near-term realities:

• The most concrete facts today are the effective date, the parental-status test, and the avalanche of litigation that has already begun.
• Courts will likely decide whether the executive branch or Congress can reinterpret or narrow a constitutional guarantee to this degree.

Advice for affected families:

• People planning a birth in the United States after February 19, 2025 should consult qualified counsel about how the rule applies to their family—especially in mixed-status households or where a parent’s status may change before or after delivery.
• Keep comprehensive documentation from birth onward to reduce the risk of administrative difficulties.

The rule creates a clear legal line—one that may split classmates, siblings born on different dates, and neighbors into distinct legal categories. The nation’s highest court will ultimately decide whether that line can stand or whether the promise of birthright citizenship under the Fourteenth Amendment remains as broad as it has been since 1868.