Birthright citizenship at the Supreme Court

Status: Decided — Trump v. Barbara (No. 25-365)

Trump v. Barbara still stands: decided June 30, 2026, the Supreme Court struck down Executive Order 14160 by a 6–3 vote, and a child born in the United States is a U.S. citizen at birth regardless of the parents' immigration status. On August 6, 2026 the President signed Executive Order 14418, which does not disturb that rule and instead directs agencies to withhold citizenship documents in four narrow situations — all of which require that neither parent is a U.S. citizen. The State Department published its implementation plan on September 4, 2026: when neither parent is a U.S. citizen, an attestation from each parent, under penalty of perjury, about whether either parent meets any of the order's conditions must be submitted with a child's passport application (adjudication continues if the answers confirm none is met), and State reads the foreign-government-employee category to include locally hired embassy or consulate staff who are nationals of the sending country, while third-country nationals, contractors and personal employees of officials generally fall outside it, assessed case by case. DHS followed on September 9, 2026, when the Federal Register printed its interim final rule, "Registration of Lawful Permanent Residence for Children Born to Foreign Government Employees in the United States" (FR doc 2026-18345, RIN 1615-AD24, DHS Docket No. USCIS-2026-0496). The rule is effective September 4, 2026, applies only to children born on or after that date, and amends 8 CFR parts 101 and 264 to replace "foreign diplomatic officer" with the broader "foreign government employee" — which covers embassy and consulate employees who are nationals of that country — so those children may register as lawful permanent residents on Form I-485; Form G-325R is revised for those who do not. Registration is voluntary and the rule decides no one's citizenship. The comment period closed October 5, 2026; as of October 7, 2026 DHS had published no final rule (a September 16 correction, FR doc 2026-18949, restored evidence rules in 8 CFR 264.2(c)(2)). DHS says it will not implement the rule against any member of the certified class in Casa Inc. v. Trump, No. 8:25-cv-00201 (D. Md.), while the preliminary injunction entered there on September 2, 2026 stands; the government moved to dissolve or stay that injunction on September 8, 2026 (ECF 183), the plaintiffs filed their opposition on September 22, 2026 (ECF 188), and as of October 7, 2026 the public docket shows no ruling on the motion. SSA and DOJ had published nothing as of September 10, 2026.

Next step: The remaining agencies, and the fight over the injunction. State published its implementation plan on September 4, 2026 and DHS published its interim final rule on September 9; as of September 10, 2026 the Social Security Administration and the Justice Department have published nothing. Watch three things: whether the District of Maryland grants the government's September 8 motion to dissolve or stay the September 2 preliminary injunction in Casa Inc. v. Trump (DHS's carve-out for the certified class lasts exactly as long as that injunction does); what DHS does after the October 5, 2026 comment deadline on Docket USCIS-2026-0496; and whether the foreign-government-employee category, which both State and DHS read to include locally hired consular staff who are nationals of the sending country, survives review. Also open: the attestation State says each parent must submit with a child's DS-11 when neither is a citizen, and any modification of State's plan, which calls itself proposed and subject to change.

Primary source last checked automatically on 2026-10-23 — status can change with a single court ruling. Official source.

Update — August 11, 2026: a new executive order, and what it does not do

On August 6, 2026 the President signed Executive Order 14418, published August 11 at 91 FR 51991. If you are an undocumented parent of a U.S.-born child, the short version is: your child’s citizenship is not affected. Trump v. Barbara still stands, and the new order does not claim otherwise — it says it addresses categories of children who, in its reading, fall outside the rule the Supreme Court announced.

The order tells federal agencies not to issue documents recognizing U.S. citizenship — and not to accept state or local documents recognizing it — for a person when neither parent is a U.S. citizen and any one of these applies:

  1. A parent is an “alien enemy” — defined as a member of a designated Foreign Terrorist Organization under 8 U.S.C. 1189, or a Specially Designated Global Terrorist.
  2. A parent is a foreign government employee — ambassadors; people employed by a foreign embassy or consulate who are nationals of that country; people employed by a foreign government in an official capacity; and employees of international organizations who hold international-organization immunity.
  3. The parents paid for the birth — a commercial transaction to ensure the mother was present in the U.S. to give birth (birth tourism), or a commercial surrogacy arrangement with a surrogate in the U.S.; or fraud committed to obtain citizenship.
  4. The birth was in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

Every one of those requires that neither parent is a U.S. citizen. If either parent is a citizen, none of it applies.

Category 2 is the contested one. The long-standing exception, which predates this order by more than a century, covers children of accredited diplomats who hold immunity. Executive Order 14418 defines the category to include any embassy or consulate employee who is a national of that country — which would reach locally hired consular staff who have no diplomatic immunity. Agencies must publish implementation guidance within 30 days of August 6, i.e. by September 5, 2026, and that guidance will show how broadly they intend to read it.

If you think you fall into one of these four categories, this is a situation to take to a licensed immigration attorney rather than to resolve from a website.

Update — September 5, 2026: the State Department publishes its implementation plan

The first agency guidance is out. On September 4, 2026 the State Department posted, under U.S. Passports News on travel.state.gov, a three-page proposed Implementation Plan for Executive Order 14418, and marked its Executive Order 14160 page “Superseded by Executive Order 14418.” The plan says it is prospective only, takes effect on publication “subject to any legal obligations,” and “may be subject to further modification.” As of September 5, USCIS, the Social Security Administration and the Justice Department had published nothing (Federal Register search, USCIS newsroom, ssa.gov news and the DOJ press-release feed checked). DHS has since published its own rule — see the September 9 update below. As of September 10, 2026 the Social Security Administration and the Justice Department still have not.

What changes at the passport window. Nothing for a child with at least one U.S.-citizen parent. When neither parent is a U.S. citizen, passport agency staff will use the parental fields on Form DS-11, the submitted documents and government records to check the four categories, and an attestation from each parent, under penalty of perjury, must be submitted as part of the determination of whether either parent meets any of the order’s conditions. If the attestation is not filed with the application it is requested once the application is reviewed; if the answers confirm no condition is met, adjudication of the passport continues. The plan warns that a false attestation can lead to federal criminal prosecution. Acceptance agents (post offices, clerks) make no decision — they only check that the application is complete.

How State reads the contested category. “Foreign government employee” includes: accredited diplomats; a person employed by a foreign embassy or consulate who is a national of that country — the locally hired consular staff this page flagged in August; people employed by a foreign government in an official capacity; and employees of international organizations that hold international-organization immunity. It generally does not include (subject to an individual assessment of employment status, purpose of travel and visa class): personal employees of foreign officials such as assistants, chauffeurs or house cleaners; employees of state-owned enterprises; third-country nationals working for a foreign government, including at an embassy or consulate; employees of other international organizations; contractors; and foreign officials visiting in a personal capacity. “Alien enemy” is defined to include members of a designated Foreign Terrorist Organization and Specially Designated Global Terrorists. The birth-tourism and U.S.-surrogacy category and the territories category track the order’s own text.

If you work at your country’s consulate in the United States and your child was born here, the citizenship question is unchanged by this plan — but the document question is now concrete, and it belongs with a licensed immigration attorney, not a website.

Update — September 9, 2026: DHS publishes its interim final rule

Read this first: the rule does not decide anyone’s citizenship, and it changes nothing for children of undocumented parents. Trump v. Barbara still stands — a child born in the United States to undocumented parents is a U.S. citizen at birth, and neither Executive Order 14418 nor this rule claims otherwise. Every category in the order requires that neither parent is a U.S. citizen and that one of four narrow situations applies. What DHS published is a registration mechanism: the 1982 procedure that let a child born here to an accredited foreign diplomat register as a lawful permanent resident has been rewritten to cover a wider group of parents.

What was published. The Federal Register printed DHS’s interim final rule on September 9, 2026 — “Registration of Lawful Permanent Residence for Children Born to Foreign Government Employees in the United States,” FR document 2026-18345, RIN 1615-AD24, DHS Docket No. USCIS-2026-0496. It amends 8 CFR parts 101 and 264 and revises Form I-485, Application to Register Permanent Residence or Adjust Status, and Form G-325R, Biographic Information (Registration). USCIS announced it in a newsroom alert dated September 4, 2026. DHS issued it without prior notice and comment, invoking the Administrative Procedure Act’s foreign-affairs exception (5 U.S.C. 553(a)(1)) and its good-cause exception (5 U.S.C. 553(b)(B)).

The dates, in the rule’s own words. “This interim final rule (IFR) is effective on September 4, 2026. This IFR will apply to children born to foreign government employees on or after September 4, 2026; children born to a foreign government employees prior to that date will be treated consistently with the regulations in place at the time of their birth. Comments must be received on or before October 5, 2026.” So if your child was born before September 4, 2026, this rule does not reach them.

Who counts as a “foreign government employee.” This is the contested category, and the definition is why it matters to consular staff. USCIS’s alert says the rule “replaces the term ‘foreign diplomatic officer’ with the broader term ‘foreign government employee.’” It “includes foreign diplomatic officers accredited to the United States, certain foreign embassy or consulate employees who are nationals of that foreign country, persons employed by a foreign government in an official capacity, and persons employed by an international organization that possesses international-organization immunity.” The rule “also clarifies categories that are not included, such as personal employees or attendants of foreign officials, certain employees of state-owned enterprises, third-country nationals working for foreign governments, certain contractors, and foreign government employees visiting the United States in a personal capacity.” Locally hired embassy and consulate employees who are nationals of the sending country are inside the definition — the same reading the State Department published on September 4. The rule also drops the old reference to the State Department’s Diplomatic List, the “Blue List,” because that list is no longer published.

What DHS wrote into the regulation itself. New 8 CFR 101.3(a)(1) sets out DHS’s position that a child of a foreign government employee is not “subject to the jurisdiction of the United States” for birthright-citizenship purposes unless at least one parent is a U.S. citizen. That is DHS’s reading, published as an interim rule and open to comment and to challenge. The September 2, 2026 preliminary injunction in Casa Inc. v. Trump (below) was entered before this rule was published and, in DHS’s own words, limits how DHS will apply the rule to the certified class; no court has yet ruled on the text of the rule itself. Registration itself stays voluntary — but a child in this group whose parents do not register permanent residence is still subject to the alien-registration requirement at INA section 262 (8 U.S.C. 1302), unless the child can claim the immunities of a foreign diplomatic officer, and would comply by filing Form G-325R instead. For a child under 14 a parent or legal guardian creates the USCIS online account and files; the child must re-register and give fingerprints within 30 days after turning 14. Form G-325R has no filing fee, and DHS estimates the total per-person cost of that route at $340.15 including biometrics; Form I-485 carries a filing fee of $1,440 on paper or $1,390 by e-file, which DHS puts at $1,993.65 and $1,905.95 per person all in. Under the regulation this rule amends, a person whose registration is granted “is considered a lawful permanent resident as of his or her date of birth.”

The court order DHS carved out of. The rule and the alert both say: “Given the injunction currently in place in [Casa Inc. v. Trump], No. 8:25-cv-00201 (D. Md Sep. 2, 2026), DHS will not take actions to implement the rule specifically to any member of the certified class, or otherwise conflict with the preliminary injunction, unless and until the government obtains relief from the injunction.” The docket confirms the order: on September 2, 2026 Judge Deborah L. Boardman signed a memorandum opinion (ECF 181) and an order “granting 178 Motion for Preliminary Injunction; denying as moot 178 Motion for Temporary Restraining Order” (ECF 182). On September 8, 2026 the government moved to dissolve that injunction and, in the alternative, to stay it (ECF 183), filing a memorandum in support and the State Department guidance as an exhibit. The plaintiffs filed their opposition on September 22, 2026 (ECF 188); as of October 7, 2026 the public docket shows no ruling on the motion. We publish no prediction of how the court will rule. DHS’s own condition on the carve-out is the quoted one: it holds “unless and until the government obtains relief from the injunction.”

The comment period closed October 5, 2026. Because this is an interim final rule, it took effect without waiting for comments and stays in force now that the period has closed; DHS can still revise it in a final rule, and as of October 7, 2026 it had published none. On September 16, 2026 DHS published a correction (FR document 2026-18949, 91 FR 58575) that restores evidence requirements in 8 CFR 264.2(c)(2) the September 9 text had “unintentionally removed,” applicable as of September 4, 2026. Comments went through regulations.gov under DHS Docket No. USCIS-2026-0496; the rule said comments sent any other way, “including emails or letters sent to DHS or USCIS officials, will not be considered comments on the interim final rule,” and that everything submitted is posted publicly “without change,” including any personal information in it. DHS says it cannot quantify how many children the rule reaches: the State Department’s Office of Foreign Missions “reports that the United States hosts more than 124,000 foreign mission members and dependents,” a figure DHS says it cannot use as an estimate.

If a parent works for a foreign government, embassy, consulate or international organization and your child was born on or after September 4, 2026, this belongs with a licensed immigration attorney or a DOJ-accredited representative, not with a website. There is a live injunction, a pending motion to dissolve it and a comment period that closed on October 5, 2026, and the answer turns on facts specific to your family.

What’s happening

On June 30, 2026, the Supreme Court decided Trump v. Barbara (No. 25-365), striking down Executive Order 14160 by a 6–3 vote. Chief Justice Roberts wrote the majority opinion, holding that the Fourteenth Amendment’s Citizenship Clause guarantees citizenship to children born in the United States regardless of their parents’ immigration status. Justice Kavanaugh concurred in the judgment on statutory grounds; Justices Alito, Thomas, and Gorsuch dissented.

The order is void and unenforceable. Birthright citizenship continues exactly as it did before the order — consistent with more than a century of precedent under United States v. Wong Kim Ark (1898).

Who it affects

U.S.-born children whose mother is an unauthorized immigrant, or lawfully present only temporarily, and whose father is not a U.S. citizen or lawful permanent resident — the class whose automatic birthright citizenship Executive Order 14160 would have denied. The Supreme Court struck the order down, so these children are U.S. citizens at birth, as they were before.

Estimated scale: 260,000 — U.S. births per year that would not have qualified for citizenship under EO 14160 (Pew Research).

How it got here

  1. Jan 20, 2025 President Trump signs Executive Order 14160, directing federal agencies to stop recognizing birthright citizenship for certain U.S.-born children.
  2. Dec 5, 2025 Supreme Court grants certiorari before judgment, taking the case directly.
  3. Apr 1, 2026 Oral argument held on whether EO 14160 complies with the Fourteenth Amendment Citizenship Clause and 8 U.S.C. § 1401(a).
  4. Jun 30, 2026 The Supreme Court strikes down Executive Order 14160 by a 6–3 vote. Chief Justice Roberts writes the majority opinion, holding the Fourteenth Amendment's Citizenship Clause guarantees citizenship to children born in the United States regardless of their parents' immigration status. Justice Kavanaugh concurs in the judgment on statutory grounds; Justices Alito, Thomas, and Gorsuch dissent. Birthright citizenship is upheld.
  5. Aug 6, 2026 President Trump signs Executive Order 14418, “Continuing To Protect the Meaning and Value of American Citizenship” (published August 11, 2026 at 91 FR 51991). It does not reopen Trump v. Barbara. It directs agencies not to issue or accept citizenship documents for a person when neither parent is a U.S. citizen and one of four categories applies: a parent is a designated foreign terrorist or Specially Designated Global Terrorist; a parent is a foreign government employee; the parents paid for birth tourism or a U.S. surrogacy arrangement, or committed citizenship fraud; or the birth was in a U.S. territory where citizenship is not conferred by statute. Agencies have 30 days to publish implementation guidance.
  6. Sep 2, 2026 The U.S. District Court for the District of Maryland enters a preliminary injunction in Casa Inc. v. Trump, No. 8:25-cv-00201. Judge Deborah L. Boardman signs a memorandum opinion (ECF 181) and an order "granting 178 Motion for Preliminary Injunction; denying as moot 178 Motion for Temporary Restraining Order" (ECF 182). DHS later states, in its own interim final rule, that it will not implement that rule against any member of the certified class while this injunction stands. The docket text does not describe the injunction's scope; the description of what it covers is DHS's.
  7. Sep 4, 2026 The State Department publishes its proposed EO 14418 Implementation Plan (travel.state.gov, U.S. Passports News) and marks its EO 14160 page superseded: when neither parent is a U.S. citizen, an attestation from each parent, under penalty of perjury, about whether either parent meets any of the order's conditions must be submitted with a child's DS-11; locally hired embassy or consulate staff who are nationals of the sending country are read as foreign government employees, while third-country nationals and contractors generally are not (case by case). First agency guidance under Section 3(b). The same day, USCIS announced DHS's own interim final rule on the same category, effective that date and printed in the Federal Register on September 9; SSA and DOJ remained silent.
  8. Sep 8, 2026 The government moves to dissolve the September 2 preliminary injunction and, in the alternative, to stay it (ECF 183), filing a memorandum in support and the State Department guidance as an exhibit. The motion is pending (plaintiffs opposed it on September 22, 2026); DHS's carve-out for the certified class lasts only as long as the injunction does.
  9. Sep 9, 2026 The Federal Register publishes DHS's interim final rule, "Registration of Lawful Permanent Residence for Children Born to Foreign Government Employees in the United States" (FR doc 2026-18345, RIN 1615-AD24, DHS Docket No. USCIS-2026-0496), amending 8 CFR parts 101 and 264. In the rule's words: "This interim final rule (IFR) is effective on September 4, 2026. This IFR will apply to children born to foreign government employees on or after September 4, 2026; children born to a foreign government employees prior to that date will be treated consistently with the regulations in place at the time of their birth. Comments must be received on or before October 5, 2026." It replaces "foreign diplomatic officer" with the broader "foreign government employee" (including embassy or consulate employees who are nationals of that country, and excluding third-country nationals, contractors and personal employees of officials), lets those children voluntarily register as lawful permanent residents on Form I-485, and revises Form G-325R for those who do not. It decides no one's citizenship; Trump v. Barbara is untouched.
  10. Sep 16, 2026 DHS publishes a correction to the interim final rule (FR doc 2026-18949, 91 FR 58575), restoring evidence requirements in 8 CFR 264.2(c)(2) that the September 9 text had unintentionally removed; effective September 16, applicable as of September 4, 2026.
  11. Sep 22, 2026 The plaintiffs file their opposition to the government's motion to dissolve or stay the September 2 preliminary injunction (ECF 188). As of October 7, 2026 the public docket shows no ruling.
  12. Oct 5, 2026 The comment period on Docket USCIS-2026-0496 closes; the interim final rule stays in force.

What to watch next

The remaining agencies, and the fight over the injunction. The State Department published its implementation plan on September 4, 2026 and DHS published its interim final rule on September 9 (both above). As of September 10, 2026 the Social Security Administration and the Justice Department have published nothing. Three things decide what happens next: whether the District of Maryland grants the government’s September 8 motion to dissolve or stay the September 2 preliminary injunction in Casa Inc. v. Trump — DHS’s carve-out for the certified class lasts exactly as long as that injunction does; what DHS does after the October 5, 2026 comment deadline on Docket USCIS-2026-0496; and whether the foreign-government-employee category, which both State and DHS read to include locally hired consular staff who are nationals of the sending country, survives review. Also still open: the attestation State says each parent must submit with a child’s DS-11 when neither is a citizen, and any modification of State’s plan, which calls itself proposed and subject to change.

The ruling in Trump v. Barbara itself is final and applies nationwide, and Executive Order 14418 does not reopen it.

Official sources

This page is general information about litigation, not legal advice. A case’s status can change with a single ruling, and outcomes can turn on facts specific to each person. For advice on a specific situation, consult a licensed immigration attorney or a DOJ-accredited representative.