United States: District Court Issues Nationwide Injunction Against Birthright Citizenship Executive Order

The Executive Order (EO) at issue seeks to limit birthright citizenship for certain groups of children born in the United States after February 19, 2025. It applies to the following children born after February 19, who do not have a U.S. citizen or U.S. lawful permanent resident father at the time of their birth:

• Children with a mother who is unlawfully present in the United States at the time of the birth; and
• Children with a mother who is lawfully, but temporarily, present in the United States at the time of the birth.

The second group of children includes those born to a mother in any nonimmigrant status, such as B-1/B-2 (including Visa Waiver), F-1, J-1, H-1B, L-1, E, O-1, P, TN, and any nonimmigrant dependent status. There are no exceptions in the EO for any type of temporary immigration status and there are no exceptions for foreign national parents who are in the green card process.

In defining who is deemed a mother or father for the purposes of the EO, President Trump states that “Mother” means the immediate female biological progenitor and “Father” means the immediate male biological progenitor. Therefore, parents of adopted children and parents with legal but not biological parentage of a child are not considered to be a “mother” or “father” under the order.

The EO is explicit that it applies only to children born after February 19, 2025. If the EO is permitted to go into effect, children born in the United States on or before February 19 will still be considered U.S. citizens after that date. Those who are U.S. citizens on February 19 will not lose or be stripped of their citizenship as a result of the EO.

Also, if it is permitted to take effect, the EO orders federal agencies to stop issuing documents that recognize U.S. citizenship for affected children after February 19, and to refuse to accept documents issued by State, local, or other authorities that recognize their U.S. citizenship. Families may find that they are refused U.S. passports by U.S. authorities for these children, and refused issuance of U.S. citizen social security numbers.

Further, since under the EO, children born after February 19 to unlawfully present parents will have no U.S. immigration status, these children would be subject to deportation. For children born to parents with H-1B, L-1, TN, O-1, P, or any other lawful, temporary status, though the EO does not specify, these families would presumably be required to obtain evidence of their child’s dependent nonimmigrant status (e.g., H-4, L-2, TD, etc.) through an immigration application.

The birthright Executive Order is paused until further notice by the Maryland court preliminary injunction. Several other lawsuits have been filed in federal district courts and may yield separate injunctions or limiting court orders. However, the outcome of litigation cannot be predicted. If foreign nationals believe that their children may be affected by the birthright citizenship EO were it to take effect after February 19, they should consult with qualified immigration counsel.