Can Children of Undocumented Immigrants Legally Stay in the U.S.?

Whether a child born to an undocumented or unauthorized (often referred to as illegal) immigrant can lawfully stay in the United States depends on:

• whether the child was born in the United States and when, and
• if the child was not born in the United States, whether they qualify for any other form of immigration relief.

We'll describe both scenarios below.

The 14th Amendment and Rights of Children Born in the U.S.

The 14th Amendment to the U.S. Constitution reads: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside." This particular amendment was originally ratified in 1868, so that newly emancipated slaves (who were originally from Africa) were given U.S. citizenship.

However, it doesn't cover everyone. For example, it is understood to prohibit children born to foreign visitors, ambassadors, consuls, and so on from becoming citizens. The rationale is that there's no logical basis upon which to award them citizenship simply because their parents happened to be in the United States, on the errand of their native country, at the time the child was born.

Nevertheless, the 14th Amendment has, until recently, been understood to mean that children born in the United States to undocumented foreign nationals can legally stay in the United States as U.S. citizens. Nevertheless, in January of 2025, Donald Trump issued an Executive Order stating that U.S. citizenship would no longer be granted to U.S.-born children if either of the two following were true when the child was born:

• the child's mother was in the United States unlawfully (was "undocumented" or "illegal") and the child's father was neither a U.S. citizen nor a lawful permanent resident, or
• the mother’s presence in the United States was lawful but only temporary (perhaps because she was visiting the United States on the Visa Waiver Program or after being granted a student, work, or tourist visa, among other possibilities; this could also potentially extend to people with TPS, humanitarian parole, pending applications for asylum, and so on, though the order didn't make this clear), and the father was neither a U.S. citizen nor a lawful permanent resident.

The argument made within this order is that foreign nationals in the above situations do not match the language in the Constitutional amendment about being under the "jurisdiction" of the United States. Numerous commentators disagree, pointing to the fact that undocumented immigrants are legally bound to follow U.S. laws, pay U.S. taxes, and much more.

Numerous lawsuits were subsequently filed, and the matter is on its way to the U.S. Supreme Court, with a decision expected in June or July of 2026.

If the order is ultimately allowed to stand, it will take effect after issuance. This Executive Order is NOT retroactive; in other words, children born in the United States before it goes into effect can safely be assumed to hold U.S. citizenship regardless of parents' immigration status.

Children of Undocumented Immigrants Who Were Not Born in the U.S.

Many undocumented immigrants bring their children to the U.S. when the children are very young. The children grow up speaking English, attending U.S. schools, and in every way considering themselves equivalent to U.S. citizens. However, under current law (despite various legislative proposals), they have no direct path to legal status or citizenship.

That doesn't mean that their situation is hopeless. Such children might, for example, qualify for asylum; for a green card based on marriage or another close family relationship to a U.S. citizen or permanent resident; or if they find themselves in removal proceedings (before an immigration judge), for a form of relief called cancellation of removal.

Still, the path to a U.S. green card under any of these scenarios will not be easy, particularly as the second Trump administration attempts to roll back immigration in numerous categories. The fact of someone's long stay in the United States can also, in some instances (particularly after the child turns 18), hurt their ability to obtain the green card. Overstaying a visa also comes with various immigration consequences. Illegal U.S. entry comes with its own additional consequences, particularly in that it bars adjustment of status in many situations; thus forcing immigrants to leave the United States in order to attend their visa interview at a U.S. consulate, which can result in them being stuck outside the United States with no appeal after a denial.

For some people, there was the possibility of qualifying for Deferred Action for Childhood Arrivals or (DACA), but this was created by presidential executive order, and has been the subject of efforts to undo it and lawsuits. No new DACA applications are being accepted at this time.

Getting Legal Help

If you have questions about your U.S. immigration status or that of your child, consult an experienced immigration attorney. The attorney can help analyze who is a citizen and whether non-citizens have a possible path to a green card.