The United States Department of Homeland Security has introduced a new interim rule that could significantly narrow the circumstances under which children born on American soil to foreign government employees are recognised as US citizens at birth. The move expands an exception that has historically applied mainly to children of foreign diplomats and comes as the administration of President Donald Trump continues its efforts to change the country’s long-standing birthright citizenship policy.
The Department of Homeland Security issued the interim final rule on September 4, following an executive order signed by Trump on August 6. The administration’s broader attempt to restrict birthright citizenship has already faced major constitutional challenges, with courts questioning whether the executive branch can alter the protections provided under the Fourteenth Amendment. The latest rule therefore represents another attempt by the administration to pursue narrower restrictions after its earlier, more sweeping effort encountered resistance from the judiciary.
Under the new policy, the definition of a foreign government employee would extend beyond traditional diplomatic officers. It could cover individuals employed by foreign embassies or consulates who are nationals of the country they represent, people working for foreign governments in an official capacity and certain employees of international organisations that enjoy immunity in the United States. Children born in the US to qualifying employees could therefore fall outside the automatic recognition of citizenship at birth if neither parent is an American citizen.
The change marks an important departure from the previous framework. US law and legal precedent have generally recognised a limited exception to birthright citizenship for children of foreign diplomats because diplomatic representatives are regarded as having a special status under international law. The new DHS rule seeks to extend the principle behind that exception to a much wider group of foreign government and international-organisation personnel.
However, the rule does not apply to everyone who has a connection with a foreign government. DHS has specifically excluded several categories of workers, including personal employees such as chauffeurs and housekeepers of foreign officials. Employees of state-owned companies who do not have the relevant A or G nonimmigrant status, third-country nationals working for foreign governments and certain contractors working for foreign missions or governments are also outside the expanded definition.
For children affected by the rule, the administration has proposed an alternative immigration route rather than leaving them without legal status. Eligible children born in the United States to qualifying foreign government employees, where neither parent is a US citizen, could voluntarily apply for lawful permanent residence through Form I-485. If the application is approved, their permanent resident status would be considered to have begun from the date of their birth.
DHS is also updating immigration forms to accommodate the new category. Children who are not recognised as US citizens at birth could potentially be subject to federal alien-registration requirements as well, depending on their circumstances. The administration argues that the changes provide a legal mechanism for affected children while maintaining what it views as an appropriate distinction between American citizens and foreign government personnel.
The Fourteenth Amendment remains at the centre of the controversy. Its Citizenship Clause has traditionally been understood to grant US citizenship to people born in the country and subject to its jurisdiction. The administration’s attempt to broaden the existing diplomatic exception has consequently triggered questions over whether the executive branch has the authority to redefine who qualifies for citizenship without a constitutional amendment or legislation from Congress.
The timing of the DHS rule is also significant because the policy is unfolding alongside ongoing litigation. A federal judge in Maryland issued a preliminary injunction on September 2 blocking enforcement of Trump’s latest birthright citizenship restrictions against the nationwide class covered by the case. The ruling came after immigrant-rights advocates challenged the administration’s efforts, arguing that the restrictions conflict with the constitutional guarantee of citizenship.
The DHS rule is intended to operate prospectively, meaning it is designed to cover children born on or after its effective date rather than those born earlier. The Federal Register publication was scheduled for September 9. However, the continuing court injunction creates uncertainty over how broadly the new policy can actually be implemented. DHS has acknowledged that it will not enforce the rule against people covered by the existing court order unless the government succeeds in obtaining relief from the injunction.
The latest development is therefore likely to become another important test of the limits of presidential authority over US immigration and citizenship policy. While the administration has sought to present the rule as a targeted expansion of an existing exception rather than a complete end to birthright citizenship, immigration advocates and legal experts are expected to continue challenging its constitutionality. The outcome of those legal proceedings could determine whether children of a broader range of foreign government personnel can be denied automatic US citizenship or whether the traditional interpretation of the Fourteenth Amendment will prevail.
