This is USCIS's plan to determine who will be considered a U.S. citizen at birth and who will not

The U.S. Citizenship and Immigration Services (USCIS) already has a detailed operational plan to implement new restrictions on the right to citizenship by birth in the U.S., although a federal court order currently suspends the application of the measure.

The document, dated July 25, 2025 - and cited by the local press - outlines how citizenship will be interpreted, as well as who will and who will not be considered a U.S. citizen at birth, should the Justice system ultimately allow for the measure.

This plan represents a profound shift in the country’s immigration policy and anticipates a scenario where hundreds of thousands of children born on U.S. soil would not automatically receive citizenship, as has been the norm for over a century under the 14th Amendment of the Constitution.

The keys to the USCIS plan

The USCIS plan, made public despite the order still being blocked, is based on two fundamental concepts to exclude certain newborns from automatic access to citizenship: illegal presence and legal but temporary presence.

Both categories determine whether the parents meet the requirements necessary to transmit citizenship to their children.

What is meant by "illegal presence"?

USCIS adopts the definition from the Immigration and Nationality Act (INA), which states that a person is in illegal presence if:

-Remains in the United States after the expiration of the period authorized by the Attorney General.

-Entered without formal admission or special permission for entry (parole).

However, it clarifies that not everyone without regular immigration status is automatically in an illegal situation.

Por ejemplo, Those who entered under humanitarian permits (parole) do not have a formal legal status, but they are also not considered to be present illegally.

What does "legal but temporary presence" mean?

This concept, unlike the previous one, does not have a specific definition in U.S. immigration law, which is why USCIS formulated an ad hoc interpretation.

According to the plan: “The legal but temporary presence is that authorized by the government, but with a limited duration or subject to periodic renewal.”

This category includes:

-People with temporary non-immigrant visas (tourism, study, work).

- Beneficiaries of Temporary Protected Status (TPS).

-Participants of the Visa Exemption Program.

-People with humanitarian goals.

-Citizens of Micronesia, the Marshall Islands, and Palau under special agreements.

-Beneficiaries of the LIFE Law and the Family Unity Law.

-Individuals with deferred action (such as DACA) or Deferred Enforced Departure (DED).

-Those who have received a deferral of deportation or voluntary departure.

On the contrary, those who are considered to have a more permanent presence are those who have:

- Permanent legal residence (green card).

-Refugee or asylum status.

-Conditional residence.

-United States national not a citizen (as in the case of American Samoa).

-Indigenous citizenship under Section 289 of the INA.

What will happen to the children of parents with temporary status?

One of the most controversial elements of the plan is the treatment of children born in the U.S. to parents with legal, but not permanent, immigration status.

According to the text:

"If both parents are in a legal temporary status and neither is a citizen nor a permanent resident, the child will not be considered a U.S. citizen at birth."

This includes children of international students, workers with temporary visas, tourists, and other similar cases. Under the government's interpretation, those children will not automatically receive citizenship.

What protection will these children have?

USCIS acknowledges that enforcing the order without an alternative solution could leave these minors without valid immigration status, which is why it proposes creating a registration system similar to the one used for the children of foreign diplomats.

This mechanism would allow newborns to access the same status as one of their parents, although without citizenship.

Until this new system is implemented, the Department of Homeland Security (DHS) has proposed that: “Any immigration enforcement measures concerning these children are to be postponed,” in order to prevent their deportation or leaving them in legal limbo.

Where does this initiative come from?

The origin of this plan dates back to January 20, 2025, when President Donald Trump signed the Executive Order "Protecting the Meaning and Value of American Citizenship."

This directive seeks to restrict the scope of automatic citizenship by birth, arguing that not everyone born on U.S. soil is "subject to the jurisdiction" of the country, as required by the 14th Amendment.

The order specifies that children who meet at least one of these two conditions will not be considered citizens at birth:

-That her mother was in an irregular immigration situation at the time of birth, and her father is also neither a citizen nor a legal permanent resident.

-That her mother had a legal but temporary presence, such as a tourist or student visa, and the father is neither a citizen nor a permanent resident.

Although this interpretation is highly controversial and has been challenged by legal experts and civil rights organizations, the government began to prepare for its eventual implementation.

Constitutional debate: a reinterpretation or a break?

The Trump administration's proposal represents a direct challenge to the historical interpretation of the 14th Amendment, which has guaranteed citizenship for over 150 years to all born on U.S. soil, regardless of their parents' status.

The constitutional clause states: “All persons born or naturalized in the United States, and subject to its jurisdiction, are citizens of the United States.”

This interpretation has been confirmed by multiple judicial precedents, although the term "subject to its jurisdiction" is now the subject of a legal dispute that could end up in the Supreme Court.

Conclusion: citizenship is no longer automatic... at least in the plans

Although the measure does not yet have legal validity, the fact that USCIS has developed such a comprehensive operational plan indicates that the administration is determined to move forward with this reinterpretation of birthright citizenship if the courts allow it.

The debate is far from over. It is not just an immigration issue, but a matter of national identity: who is considered a true member of the American political community from birth?

The answer could change forever if this new doctrine is established.

Frequently Asked Questions about Citizenship by Birth in the U.S.