H-1B Workers’ Kids Would Lose Citizenship Under Birthright Order

President Donald Trump’s birthright citizenship executive order would encompass the children of immigrants who lawfully live in the US on temporary work visas, including those participating in the H-1B program popular with the tech sector.

The order, issued Jan. 20, attempts to strip citizenship from children born in the US to immigrant parents who are unauthorized or without permanent residency. It’s generating anxiety for workers on H-1Bs and other temporary forms of legal status because it would leave their children stateless, business immigration attorneys say. It’s also creating uncertainty for employers.

The move has already been met with legal challenges from the ACLU and Democratic attorneys general. And legal experts say it flies in the face of the US Constitution and Supreme Court precedent.

“The Constitution is quite clear,” said David Leopold, chair of the immigration practice at UB Greensfelder. “Anybody who’s born in the United States and under the jurisdiction of the United States is a US citizen. Period, end of story.”

There were roughly 11.3 million unauthorized immigrants in the US and another 2.5 million temporary visa holders in the US as of 2022, according to estimates from the Migration Policy Institute.

Century-old Case Law

The directive calls for federal agencies to block documents recognizing US citizenship for any children born in the US on or after Feb. 19 whose mother is an unauthorized immigrant or on a lawful temporary status and whose father was not a citizen or lawful permanent resident.

Any judge who reviews the order would likely be quick to issue an injunction blocking it, Leopold said.

Although an attack on birthright citizenship was expected from the new administration, the order’s sweeping language was surprising to immigration attorneys.

It’s already fueling a barrage of questions though about how workers’ families will be affected. The executive order doesn’t spell out, for instance, if a child would be granted a dependent visa status based on their parent’s visa or if they would be considered subject to deportation.

“People are panicked,” Leopold said. “Employees are going to be desperate for information.”

The citizenship issue has been a settled question since 1898, when the Supreme Court ruled in United States v. Wong Kim Ark that the Citizenship Clause of the Fourteenth Amendment should be interpreted to mean any child born in the US is automatically a citizen. Exceptions were carved out only for children of foreign diplomats or invading forces. The court hasn’t revisited the issue in the modern era of immigration law.

Trump’s attempt to strip birthright citizenship violates the Fourteenth Amendment and Immigration and Nationality Act, the American Civil Liberties Union argued in a complaint filed Jan. 20. A separate lawsuit, filed Tuesday by the attorney general of New Jersey and 17 other Democratic states along and the District of Columbia, adds that it disregards the separation of powers. Four other Democratic states filed a third challenge Tuesday.

A fourth challenge was filed Jan. 21 by Asylum Seeker Advocacy Project, and Casa Inc. on behalf of several pregnant immigrant women.

Harold Solis, co-legal director of Make the Road New York, said the executive order would create a permanent underclass of American-born individuals who would be considered stateless. The group is a plaintiff in the ACLU-led lawsuit.

“There are moments when the Constitution is vague. This is not one of those moments,” he told reporters Tuesday. “Fundamental rights cannot be revised away by executive order.”

Employer Uncertainty

For companies already anticipating significant regulatory changes governing foreign workers, the order adds another major issue to navigate, said Lynden Melmed, a partner at corporate immigration firm BAL. That kind of unpredictability is one of the biggest challenges facing firms aiming to attract sought-after talent to the US.

“It’s beneficial for everyone involved to know what the rules are,” he said. “Now this injects uncertainty into a family’s decision to stay in or move to the United States and pursue their careers here because of concerns about what would happen to their children.”

Self-sponsorship options for employment-based green cards have seen a spike in recent years as high-skill workers aim to escape green card backlogs. The order will likely fuel further interest in those categories from workers who have traditionally waited for their employers to sponsor them for permanent residency, said Xiao Wang, CEO of Boundless Immigration.

“People are saying: I can’t wait. There’s an extra level of urgency here,” he said.

Faisal Khan, a software engineer employed in the Seattle area on an H-1B visa, said he and his wife are expecting their first child in March. Although his employer has filed to sponsor him for a green card, Khan said the executive order is enough to make him question whether moving to the US a decade ago to pursue a degree and career was the right decision.

“We’re actually kind of concerned,” he said. “Is this the time we should think about moving back to our home country or another country that’s more accepting?”