Birthright Citizenship in US

What is Birthright Citizenship in U.S? What is Trump’s New Executive Order on Birthright Citizenship? What is the purpose and Scope of the order? What is the purpose and Scope of the order?

Birthright Citizenship

Birthright citizenship is a legal principle under which citizenship is automatically granted to individuals upon birth. There are two forms of birthright citizenship: ancestry-based citizenship and birthplace-based citizenship. Birthplace-based citizenship, which grants citizenship based on place of birth, is formally referred to as jus soli, a Latin term meaning "right of the soil."

What is Birthright Citizenship in US?

Birthright Citizenship in US is guaranteed by the Fourteenth Amendment to the Constitution. The 14th Amendment was passed after the Civil War to guarantee citizenship to all persons born in the U.S., The amendment was a response to the Dred Scott decision of 1857, which denied citizenship to enslaved Black people and their descendants.

Specifically, 14th amendment states 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." This principle was confirmed by the 1898 Supreme Court case United States v. Wong Kim Ark, which clarified that children born in the U.S. to immigrant parents are citizens, regardless of their parents' immigration status.

Case United States v. Wong Kim Ark (1898):

• Wong Kim Ark was born in San Francisco to Chinese parents who were not U.S. citizens.

• After visiting China, he was initially denied re-entry into the U.S. because the government argued that he wasn’t a U.S. citizen.

• The Supreme Court ruled in favor of Wong Kim Ark, declaring that he was indeed a U.S. citizen because he was born in the U.S., regardless of his parents’ citizenship status.

This case has been a major precedent in affirming that any child born on U.S. soil is automatically a U.S. citizen.

The U.S. employs a combination of:

• Unrestricted birthplace-based citizenship (jus soli): Granting citizenship to anyone born on U.S. soil, regardless of their parents' status, with exceptions like children of foreign diplomats.]

• Restricted ancestry-based citizenship (jus sanguinis): Extending citizenship to children born abroad to U.S. citizens, provided statutory requirements are met.

Globally, birthright citizenship is common in the Americas but less so in other regions. The historical foundation of this principle in the U.S. reflects its aim to eliminate legal inequalities and promote inclusivity.

In January 2025, after starting his second term as President of the United States, Donald Trump signed several executive orders, one of which aimed to end the practice of birthright citizenship. This executive order has aroused several debates among experts and is posed with many legal challenges.

As per the latest developments, a federal judge in Seattle has temporarily blocked the executive order by President Donald Trump calling it ‘blatantly unconstitutional’.

What is Trump’s New Executive Order on Birthright Citizenship?

Trump’s executive order, “Ending Birthright Citizenship for Children of Illegal Immigrants and Temporary Visa Holders,” interprets the 14th amendment differently. It states that the "privilege of United States citizenship does not automatically extend to persons born in the United States." It proposes significant changes:

• Children born in the U.S. will only become U.S. citizens if at least one parent is:

1. A U.S. citizen.

2. A Green Card holder (a lawful permanent resident).

3. Serving in the U.S. military.

• Children born to parents who are in the U.S. temporarily (such as those on tourist, student, or work visas) or who are undocumented immigrants will not automatically become U.S. citizens.

For Example: If a child’s mother is in the U.S. on an H-1B work visa and the father is not a U.S. citizen or permanent resident, the child will not become a U.S. citizen under this order.

Exclusions in the Executive Order:

• The executive order specifically excludes:

1. Children born to parents who are unlawfully present in the U.S. (i.e., undocumented immigrants).

2. Children born to parents who are lawfully present but on temporary visas, such as: H-1B visas (work visas for skilled workers), F-1 visas (student visas), B-2 visas (tourist visas)

• Trump’s administration argues that the 14th Amendment should not apply to people who are not “subject to the jurisdiction” of the U.S., which would include undocumented immigrants or those with temporary visas.

What is the purpose and Scope of the order?

The administration argues that birthright citizenship incentivizes illegal immigration and places a strain on public resources. The executive order was a necessary measure to fix what the administration views as a broken immigration system.

The executive order will take effect 30 days after being signed by President Trump, which means it would go into effect by February 19, 2025. However, this does not apply retroactively. Children who have already been born and granted citizenship under the current law will not lose their citizenship.

The Trump administration has made it clear that birthright citizenship will no longer apply to children born to illegal immigrants or those with temporary visas. The administration has also stated that they plan to increase screening for immigrants coming to the U.S.

How will this affect Indian Americans?

First, Indian Americans make up about 1.47% of the total U.S. population, with over 5.4 million people of Indian origin in the U.S. As of 2024: Two-thirds of Indian Americans are first-generation immigrants, meaning they were born outside the U.S. Many Indian Americans live in the U.S. on temporary work visas such as the H-1B visa (for skilled workers) or H-4 visa (for dependent family members).

Second, If Trump’s executive order is enforced: Children born in the U.S. to Indian parents on temporary visas (e.g., H-1B, H-4) will not automatically become U.S. citizens. This change could affect hundreds of thousands of children born each year in the U.S. to Indian parents, creating uncertainty around their future citizenship. They will also no longer be able to sponsor their parents for permanent residency when they turn 21.

Anchor Babies

• Anchor babies are children born to non-citizen residents in a country with birthright citizenship.

• Such children are citizens of that country by virtue of their birth and hence can sponsor the citizenship of their parents after they have become adult.

Third, Green Card Backlogs: Indian immigrants often face long waiting times to obtain a Green Card (permanent residency). There are backlogs in employment-based Green Cards, especially for Indian workers, with over a million Indians waiting for more than 10 years to get a Green Card. The order can lead to additional uncertainty.

Fourth, Reduction in Birth Tourism: Birth tourism refers to when foreign nationals travel to the U.S. to give birth, so their child automatically becomes a U.S. citizen. Reduction in birth tourism is expected particularly from countries like India and Mexico, because children born to foreign nationals on temporary visas will no longer be granted U.S. citizenship.

Fifth, Indian Students in the US: Indian students, who form a significant group of international students in the US, will face difficulties securing citizenship for children born during their study tenure. As per the US Open Doors Report 2024, around 331,602 Indian students studied in the United States for the 2023-24 academic year.

Sixth, Discouragement from Moving to the US: Indian professionals, students, and families may opt for immigration-friendly countries like Canada and Australia instead.

Lastly, Economic Impact: The Indian community contributes significantly to the US tech industry, healthcare, and education sectors. Revoking birthright citizenship could reduce these contributions. (Economic Survey 2023 Report shows that India and USA share a bilateral trade worth $130 billion.)

What are the legal challenges for the Trump Administration?

• Requirement for a Constitutional Amendment

  • Eliminating birthright citizenship would require a constitutional amendment. This process demands:

    • A two-thirds majority vote in both the House of Representatives and the Senate.

    • Approval by three-quarters of US states.

  • Republican Majority: Trump’s Republican Party holds a majority in both the House of Representatives and the Senate, which could prove to be an advantage in the legislative process.

• Issue of Unconstitutionality as per experts

  • Recently, a federal judge in Seattle has temporarily blocked the executive order by President Donald Trump calling it ‘blatantly unconstitutional’.

  • Attorneys general from 22 states sued President Trump to stop the executive order. They say it is unconstitutional.

  • The Brennan Center states that the language of the 14th Amendment is clear: birthright citizenship is a fundamental right.

  • The American Civil Liberties Union (ACLU) argues that the President cannot change citizenship laws; only Congress or a constitutional amendment can do so.

  • Some believe this case could eventually go to the U.S. Supreme Court, where conservative judges might support Trump’s interpretation, potentially altering the meaning of the 14th Amendment.

• Immigrant rights advocates have said that this order will leave children born in the U.S. to non-citizen parents facing a lifetime of exclusion, fear of deportation and torn families.

What is the status of Birthright citizenship in rest of the world?

At present, 33 countries in the world (and two territories) have unrestricted birthright citizenship, also known as jus soli, and another 32 nations have some form of restricted birthright citizenship.

Interestingly, nearly every nation that offers birthright citizenship is in North or South America. This is considered by many scholars to have begun in colonial times, in which European countries eager to populate their settlements in the "New World" established more lenient and immigration-friendly citizenship policies.

It should also be noted that birthright citizenship often has at least one exception: The children of foreign ambassadors or other diplomats serving in a country for work are frequently excluded.

Some of the countries with unrestricted birthright citizenship are Antigua and Barbuda, Argentina, Bolivia, Brazil, Canada, Chad, Chile, Costa Rica, Cuba, Ecuador, El Salvador, Fiji, Mexico, Paraguay, Peru, Tanzania, Trinidad and Tobago, the United States, Uruguay, Venezuela etc. 

Comparison of Citizenship Provisions of U.S.A and India

Aspect	USA	India
Birth right Citizenship	The USA follows jus soli (right of the soil): Any child born on U.S. soil automatically becomes a citizen, regardless of parents' nationality (with some exceptions).	India follows jus sanguinis (right of blood): Citizenship by birth is limited and depends on the parents’ nationality and legal status.
By Descent	Citizenship is granted if at least one parent is a U.S. citizen, regardless of the child’s place of birth (with some conditions).	Citizenship is granted if the child is born outside India and at least one parent is an Indian citizen at the time of birth. Additional registration requirements apply.
By Naturalization	Requires residency in the USA for at least 5 years (or 3 years if married to a U.S. citizen), proficiency in English, knowledge of U.S. history and government, and good moral character.	Requires residency in India for 7 years (6 years of ordinary residence + 1 year immediately preceding the application). No language or history test is required.
Renunciation	Citizenship is not automatically lost if an American acquires another nationality, unless explicitly renounced.	Indian citizenship is automatically terminated if an Indian acquires citizenship of another country.
Dual Citizenship	The USA allows dual citizenship, enabling individuals to retain their original nationality while being a U.S. citizen.	India does not allow dual citizenship. However, Overseas Citizenship of India (OCI) offers some privileges to foreign citizens of Indian origin.
Legal Basis	Governed by the Immigration and Nationality Act (INA).	Governed by the Citizenship Act, 1955 and its subsequent amendments.

Legal Provisions for Citizenship in India

Citizenship is exclusively handled by Parliament and is mentioned in the Union List. The Constitution does not define 'citizen' but lays out who is entitled to Indian citizenship in Part 2 (Articles 5 to 11). The citizenship provisions were enacted on November 26, 1949, when the Constitution was adopted, not on January 26, 1950, the date the rest of the Constitution came into force.

Citizenship Act, 1955: Five methods of obtaining citizenship

1. Citizenship by birth

2. Citizenship by descent

3. Citizenship by registration

4. Citizenship by naturalisation

5. Citizenship by incorporation of territory