A new Homeland Security rule broadens the longstanding exception for children of foreign diplomats to include certain other foreign government and international-organization employees, while a federal court injunction limits enforcement against a separate class of U.S.-born children.
By yourNEWS Media Newsroom
The Department of Homeland Security is expanding the categories of children born in the United States whom the agency considers ineligible for automatic U.S. citizenship, implementing part of President Donald Trump’s latest executive order on birthright citizenship.
Under an interim final rule scheduled for publication Sept. 9, DHS will broaden existing regulations that historically excluded children born to certain accredited foreign diplomatic officers from birthright citizenship. The new definition also covers U.S.-born children when neither parent is a U.S. citizen and at least one parent is a national of a foreign country employed by that country’s embassy or consulate, serves a foreign government in an official capacity, or works for an international organization with qualifying immunity.
DHS states in the regulation that “a child of a foreign government employee is not subject to the jurisdiction of the United States for purposes of birthright citizenship unless at least one parent of the child is a United States citizen.” Children covered by the rule may instead voluntarily register as lawful permanent residents, a procedure that can result in permanent resident status being recorded from the date of birth. The rule applies prospectively rather than changing the status of children born before its effective date.
Previously, federal regulations generally applied this exception to children of foreign diplomatic officers with recognized diplomatic status and immunities. DHS itself says the new definition of “foreign government employee” is broader, extending beyond traditional ambassadors, ministers, attachés and similarly accredited diplomats. It does not generally include personal employees of foreign officials, third-country nationals working for a foreign government, certain contractors or foreign government employees visiting the United States in a personal capacity.
The change implements Executive Order 14418, which Trump signed Aug. 6. The order directs federal agencies not to recognize citizenship for several categories of people born in the United States when neither parent is a citizen, including certain children of foreign government employees. The order also addresses other categories, including children of designated “alien enemies” and certain situations the administration characterizes as commercial birth tourism or fraudulent efforts to obtain citizenship.
The administration argues that those categories fall outside the Fourteenth Amendment’s requirement that citizenship extend to people born in the United States who are “subject to the jurisdiction thereof.” The Supreme Court has long recognized an exception for children born to foreign diplomats, but the administration’s effort to extend birthright-citizenship exceptions more broadly remains the subject of litigation.
One of those challenges is CASA v. Trump, brought by immigrant families and advocacy organizations. On Sept. 2, U.S. District Judge Deborah Boardman issued a preliminary injunction protecting a certified class of U.S.-born children whose mothers were unlawfully or temporarily present in the country and whose fathers were neither U.S. citizens nor lawful permanent residents.
“Since his second term in office began on January 20, 2025, the President has tried, through Executive Order, to upend our country’s longstanding tradition of birthright citizenship and eliminate, for large swaths of Americans, the right to citizenship by birth, a right enshrined in the Citizenship Clause of the Fourteenth Amendment,” Boardman wrote.
She concluded that the newer executive order “is almost certainly unconstitutional” as applied to the certified class, citing the Supreme Court’s earlier ruling on the citizenship rights of those children. Boardman emphasized that her ruling did not decide the constitutionality of every category contained in Trump’s August order.
DHS acknowledged that limitation directly in the new regulation.
“DHS will not take actions to implement the rule specifically to any member of the certified class, or otherwise conflict with the preliminary injunction, unless and until the government obtains relief from the injunction,” the department said.
The litigation therefore leaves the administration able to proceed with portions of the new regulatory framework outside the protected class while the broader constitutional questions continue through the courts.
For children covered by the foreign-government-employee provision, DHS is also revising immigration forms to provide a pathway to permanent residency rather than citizenship. The agency said children who qualify may file Form I-485 to establish a record of lawful permanent residence, continuing a process that has existed for decades for U.S.-born children of foreign diplomats but extending it to the broader group now defined by the administration.
The rule represents another step in the administration’s effort to narrow the circumstances in which birth on U.S. soil automatically results in citizenship. Whether all of those expanded exceptions ultimately survive constitutional review remains unresolved.
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