At a Glance
- The decision: In a 6-3 ruling issued June 30, 2026, the U.S. Supreme Court struck down the Executive Order that sought to limit birthright citizenship, holding that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment.
- Why it matters for employers: Children born in the United States to foreign national employees in nonimmigrant status, including F, H, L, O, and P classifications, remain U.S. citizens at birth. The longstanding framework that mobility programs have relied on for more than a century is undisturbed.
- What to watch: The decision rests on constitutional grounds, but concurring and dissenting opinions leave open the possibility of future legislative efforts. Any such legislation would likely face its own constitutional challenge.
The Decision
In Trump v. Barbara, No. 25-365, the Supreme Court invalidated Executive Order 14160, “Protecting the Meaning and Value of American Citizenship,” which President Trump issued on January 20, 2025. The Court held that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States within the meaning of the Fourteenth Amendment Citizenship Clause and are therefore citizens at birth.
Chief Justice Roberts wrote for the majority, joined by Justices Sotomayor, Kagan, Barrett, and Jackson. Justice Jackson filed a concurring opinion. Justice Kavanaugh concurred in the judgment but reasoned that the Order should be struck down on statutory rather than constitutional grounds, noting that Congress has not enacted exceptions to birthright citizenship and leaving open whether it could do so. Justice Thomas, joined by Justice Gorsuch, filed the principal dissent, with separate dissents from Justices Alito and Gorsuch.
Background
Executive Order 14160 provided that, for children born in the United States after February 19, 2025, citizenship at birth would not extend to two groups: children whose mother was unlawfully present and whose father was neither a U.S. citizen nor lawful permanent resident at the time of birth; and children whose mother was lawfully but temporarily present and whose father was neither a U.S. citizen nor lawful permanent resident at the time of birth. The second group reached children born to parents in essentially every nonimmigrant category, with no exception for nonimmigrant parents pursuing permanent residence.
The Citizenship Clause provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The Order rested on a reinterpretation of “subject to the jurisdiction thereof,” a phrase that for more than a century has been read to confer citizenship based on birth in the United States, subject to narrow exceptions.
Multiple courts enjoined the Order beginning in early 2025. After the Court’s June 27, 2025 ruling in Trump v. CASA, Inc. limited the authority of district courts to issue nationwide injunctions, without reaching the underlying citizenship question, plaintiffs proceeded by class action, and the constitutional question came before the Court in Barbara.
The Court’s Reasoning
The Court grounded its holding in common law principles, the text and history of the Citizenship Clause, and its 1898 decision in United States v. Wong Kim Ark, 169 U.S. 649. Examining the text and history, the majority found no evidence that the ratifiers of the Fourteenth Amendment intended to impose a domicile or immigration status limitation on the parents of children born in the United States. The Court reaffirmed that “subject to the jurisdiction” refers to the power of the United States to govern those within its territory. The sole current exception, the Court explained, is for children born to certain foreign diplomats who hold privileges and immunities from U.S. jurisdiction.
“This decision restores certainty to a question that should never have been in doubt. For the global employers we represent, the answer is unchanged: a child born here to an employee on an H-1B, an L-1, or any other nonimmigrant visa is, and remains, a U.S. citizen at birth.”
— Vic Goel, Managing Partner
What It Means for Employers
For employers with foreign national workforces, the practical effect is continuity. Children born in the United States to employees in nonimmigrant status remain U.S. citizens at birth, and the family planning, benefits administration, and mobility considerations that flow from that status are unaffected. Employees who deferred decisions during the period of uncertainty, including assignments, relocations, and timing of family events, can now plan with confidence in the settled framework.
The decision was made on constitutional grounds. Several Justices observed that Congress could attempt to legislate exceptions to birthright citizenship for children born to parents present temporarily or unlawfully. Any such legislation would likely face constitutional challenge, and a constitutional amendment, which requires supermajorities in Congress and ratification by three-fourths of the states, presents an even higher bar. We will continue to monitor any legislative developments and advise on their implications for employer-sponsored populations.
This alert is for informational purposes only and does not constitute legal advice. For guidance on how this decision affects your organization and its employees, please contact the immigration professional with whom you work at Goel & Anderson.
