United States: U.S. Supreme Court to Review Birthright Citizenship EO

On January 20, President Trump issued a birthright citizenship EO stating that the following classes of children born in the United States after February 19, 2025 would no longer be U.S. citizens at birth:

• Children whose mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of the child’s birth; and
• Children whose mother’s presence in the United States at the time of the child’s birth was lawful but temporary, and the father was not a United States citizen or lawful permanent resident at the time of the child’s birth.

The EO defines mother as the “immediate female biological progenitor” and father as the “immediate male biological progenitor.” (Therefore, parents with legal but not biological parentage of a child could not serve as the basis for their child’s U.S. birthright citizenship claim.)

The basis of the EO is a significant reinterpretation of the phrase “subject to the jurisdiction thereof” in the 14^th Amendment Citizenship clause, which for more than 125 years has been interpreted to grant citizenship based on birth in the United States, subject to some very narrow exceptions.

Thus far, various nationwide injunctions have prevented implementation of the birthright citizenship EO, even after a June 27 Supreme Court decision seemed to limit the authority of federal courts to issue nationwide (or “universal,” in the court’s terminology) injunctions. Despite the various injunctions in effect, in late July 2025, U.S. Citizenship and Immigration Services (USCIS) issued preliminary guidance on certain aspects of EO implementation, providing insight into how the agency would apply the new citizenship framework if all injunctions were to be lifted. If the Supreme Court were to deem the EO constitutional and the EO were to take effect, significant changes would be required in the policies and operations of both USCIS and the U.S. State Department.

Supreme Court oral arguments in the birthright citizenship litigation are likely to take place during the first half of 2026, and the Court could issue a final decision towards the end of the Supreme Court term in June or July 2026. As long as any lower court ruling against the EO with nationwide effect remains in place, the birthright citizenship EO cannot be implemented.

Fragomen is closely monitoring the birthright citizenship EO litigation and will continue to provide updates.