United States: President Trump Signs New Executive Orders on Birthright Citizenship and Birth Tourism

The Executive Order (EO) entitled “Continuing to Protect the Meaning and Value of American Citizenship” identifies certain categories of children born in the United States of foreign national parents who are deemed not entitled to birthright citizenship, based on the Trump Administration’s interpretation of historical exceptions to birthright citizenship discussed in Trump v. Barbara.

Under the EO, the following categories of individuals will not be considered U.S. citizens based on birth in the United States if neither of their parents is a U.S. citizen and if:

• either parent is an “alien enemy,” which the EO defines to include members of designated foreign terrorist organizations and specially designated global terrorists;
• either parent is a foreign government employee, including foreign diplomats, other employees of foreign embassies or consulates, other foreign government employees, and employees of international organizations having international-organization immunity;
• either parent engaged in any commercial transaction to purchase or access birthright citizenship for the individual, or engaged in fraudulent activity to obtain citizenship; or
• the individual is born in a U.S. territory or U.S. territorial waters and citizenship is not conferred by federal statute.

The EO further states that this is a non-exhaustive list of individuals not entitled to birthright citizenship.

The EO prohibits federal government agencies from documenting these individuals as U.S. citizens, or from accepting documents issued by state or local governments purporting to recognize U.S. citizenship for these individuals. The Order also requires executive agencies to issue guidance implementing the order within 30 days.

The list of individuals not entitled to birthright citizenship contained in this EO extends well beyond the long-recognized narrow exceptions to birthright citizenship. In particular:

• As noted above, under longstanding interpretations and practice, only children of certain foreign diplomats having diplomatic immunity and specifically listed in the Department of State’s Diplomatic List do not acquire citizenship by birth in the United States. Children of other foreign government officials have historically been considered U.S. citizens if born in the United States.
• The exception from birthright citizenship for children of “alien enemies” referred to in early case law has generally been considered to cover instances where part of the territory of the United States is occupied by a foreign invading army and the child is born in that occupied territory, rather than referring to designated terrorists, members of terrorist organizations, or other foreign nationals designated or deemed to be enemies.
• No exception to birthright citizenship has previously been recognized for children born as a result of birth tourism or illegal activity. 

As the EO establishes a broader range of categories of individuals not eligible for birthright citizenship than has previously been recognized, litigation challenging the executive order is likely.

A second Executive Order directs the Departments of State and Homeland Security to take action to restrict so-called birth tourism, including denying or revoking visas, refusing entry, or removing foreign nationals entering or facilitating the entry of another “for the purpose of giving birth in the United States.” DHS and DOS are directed to update policies, regulations, and guidance aimed at combatting such activities. The EO also directs federal agencies to provide DHS and DOS with any information necessary to implement the EO and any regulations and guidance issued pursuant to it.

The order is the latest in the Administration’s efforts to curb birth tourism. Shortly after the Supreme Court struck down President Trump’s January 20, 2025 executive order on birthright citizenship, the Department of Justice said it would prioritize the prosecution of birth tourism schemes. 

It remains to be seen how the Administration will implement the new orders. The EO that purports to set forth exceptions to birthright citizenship is likely to be challenged in court. The EO on birth tourism could lead to DHS and State Department guidance increasing scrutiny on visa applicants and foreign nationals seeking admission at a U.S. port of entry.

Fragomen will closely monitor government actions taken in response to the EOs and will provide further updates as details emerge.