Children born in the US to certain foreign government employees could be denied automatic citizenship under a new rule issued by the Department of Homeland Security, widening an exception that has traditionally covered children of foreign diplomats.The interim final rule, issued on September 4, applies when neither parent is a US citizen and at least one parent is a qualifying foreign government employee at the time of the child’s birth.
What has changed under the new rule?
Federal regulations previously referred specifically to children born to foreign diplomatic officers. DHS has replaced that wording with the broader term “foreign government employee”, extending the category to additional workers connected to foreign governments and international organisations.The change does not automatically affect every child of a foreign national working in the US. It applies only when the parent meets the rule’s definition and neither parent is a US citizen.
Who could be covered?
The definition includes accredited foreign diplomatic officers, certain embassy and consulate employees who are nationals of the country they represent, people employed by a foreign government in an official capacity and employees of international organisations that have immunity in the US.The parent must hold the relevant position when the child is born for the exception to apply.
Who is excluded?
The rule does not cover personal employees of foreign officials, including workers such as chauffeurs and housekeepers. It also excludes certain employees of state-owned enterprises, third-country nationals working for foreign governments and contractors who do not fall within the specified categories.Foreign government employees visiting the US for personal reasons are also outside the definition.
What status can affected children seek?
Children covered by the rule can voluntarily apply for lawful permanent residence through Form I-485. If the application is approved, their permanent resident status will be treated as beginning on the date of birth.DHS is also revising Form G-325R for children who do not acquire US citizenship at birth and do not choose to register as permanent residents. Those children may still be required to comply with federal alien-registration requirements.
How does the rule relate to birthright citizenship ?
The Fourteenth Amendment generally grants citizenship to people born in the US who are subject to its jurisdiction. US law has long recognised limited exceptions, including children of foreign diplomatic representatives.DHS says the new rule expands the regulatory framework for that exception by replacing the narrower diplomatic-officer category with the broader foreign-government-employee classification.
Is the rule being enforced?
The rule applies prospectively to children born on or after its effective date. Children born before that date are not subject to the new requirements.Its implementation is also limited by ongoing litigation. In Casa Inc. v. Trump, a federal judge in Maryland issued a preliminary injunction on September 2 blocking enforcement of the administration’s birthright citizenship restrictions against members of the certified class covered by the case.DHS said it will not apply the rule to those individuals, or take action that conflicts with the injunction, unless the government obtains relief from the court.
