DHS is expanding the categories of children born in the United States whom the agency considers ineligible for automatic U.S. citizenship, implementing part of President Donald Trump’s latest executive order on birthright citizenship through an interim final rule scheduled for publication September 9. The regulation proceeds despite a federal court order that bars agencies including DHS from taking any action to interfere with, deny or fail to recognize citizenship of people covered by a class action.
What changed
DHS broadened existing regulations that historically excluded children born to certain accredited foreign diplomatic officers from birthright citizenship, expanding the new definition to cover U.S.-born children when neither parent is a U.S. citizen and at least one parent is a national of a foreign country employed by that country’s embassy or consulate, serves a foreign government in an official capacity, or works for an international organization with qualifying immunity.
The rule defines “foreign government employee” as foreign diplomatic officers accredited to the U.S., persons employed by a foreign embassy or consulate 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 interim final rule is effective September 4 and applies to children born in the United States on or after that date. DHS issued the rule without the usual advance notice-and-comment process, citing the foreign-affairs exception to the Administrative Procedure Act and saying immediate action was necessary to establish an immigration-status process for children it considers ineligible for citizenship at birth.
Children covered by the rule may voluntarily register as lawful permanent residents, a procedure that can result in permanent resident status being recorded from the date of birth, and the rule applies prospectively rather than changing the status of children born before its effective date.
Why it matters
This regulation materially narrows the universe of children presumptively eligible for birthright citizenship and creates new adjudication requirements for DHS. Where practitioners previously only needed to consider whether a parent held formal diplomatic status, they now must evaluate whether a parent qualifies as a “foreign government employee” under the broader four-part definition. This shifts your citizenship advice for U.S.-born children of:
- Foreign-embassy or foreign-consulate staff (now covered, previously often not)
- Foreign nationals in official government capacity
- International organization employees with qualifying immunity
The rule’s simultaneous acknowledgment of the court block creates practical uncertainty. DHS notes that implementation is currently affected by an injunction in Casa Inc. v. Trump, and states that it will not implement the rule in a manner that conflicts with the court order unless the government obtains relief from the injunction. However, the regulation takes effect immediately as an interim final rule while DHS accepts public comments, meaning DHS adjudicators have the rule in force even as litigation proceeds.
Way forward
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Verify parent employment status: Before filing Form N-400 (naturalization) or requesting a passport for a U.S.-born child, confirm whether either parent was employed by a foreign government, embassy, consulate, or qualifying international organization at the time of birth. If so, expect DHS to claim the child is not a birthright citizen under the new rule.
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Monitor litigation: The rule could become part of ongoing court battles over the scope of the Fourteenth Amendment. Track Casa Inc. v. Trump and any challenges to the interim final rule in the Federal Register comment period (ending date to be specified by DHS).
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Consider alternative pathways: For clients whose children fall under the new definition, explore lawful permanent residence registration as an interim step while the rule’s constitutionality is tested in court.
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File comments during notice period: Immigration practitioners and advocates should submit comments to DHS Docket No. USCIS-2026-0496 through Regulations.gov to create a record for any future administrative or judicial review.
Disclaimer
This article is not legal advice. Fola Form is a software company, not a law firm. Consult a licensed immigration attorney to evaluate your specific circumstances and verify this information against the primary sources, the Federal Register, and the applicable court orders. Immigration policy can change without notice; review the current status of any pending litigation and DHS guidance before making filing decisions.