Native-born U.S. citizens are, regardless of who their parents are, granted all of the rights that every other citizen is entitled to, such as the rights to vote, assume public office, and be immune from deportation (removal).
Children of undocumented (illegal) immigrants who were, like their parents, born outside the United States have no more rights to U.S. citizenship than their parents do. However, children of undocumented immigrants who were born inside the United States have historically become U.S. citizens automatically. The parent(s)' immigration status has not been taken into account. This is due to the 14th Amendment of the U.S. Constitution, which reads that:
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.
The second Trump Administration tried to undermine grants of U.S. citizenship under this section of the law, and whether it will succeed remains to be seen. Let's take a closer look at the current state of the law on this matter.
What Does It Mean to Be a U.S. Citizen?
Citizenship is the highest status available under U.S. immigration law. As a native-born U.S. citizen, the child in question will be granted all of the rights that every other citizen is entitled to, such as the rights to vote, assume public office, and be immune from deportation (removal).
Is It Legal to Undo Constitutional Birthright Citizenship?
There are people within the United States who believe that children of illegal immigrants should not be given U.S. citizenship status at all. They argue that allowing such children U.S. citizenship was not the original intent of the drafters of the 14th Amendment. (Then again, the drafters did not address the topic of immigration at all, because no limits then existed on who could enter the United States.)
To that end, Donald Trump issued an Executive Order (EO) immediately upon taking office in January of 2025, stating that U.S. citizenship would no longer be allowed to children in either of these two situations:
- at the time of the birth, the child's mother was unlawfully present in the United States (was what's also called "undocumented" or "illegal") and the father was neither a U.S. citizen nor a lawful permanent resident, or
- at the time of the birth, the mother was in the United States lawfully but only on a temporary basis (for instance, she was here after admission on the Visa Waiver Program or on a student, employment, or tourist visa) and the father was neither a U.S. citizen nor a lawful permanent resident.
The EO was not made retroactive; that is, it wouldn't have affected the validity of U.S. births that took place prior to its effective date. As for the legal justification for the EO, the Trump administration posited that parents without permanent legal immigration status were not subject to the jurisdiction of the United States, and thus weren't covered by the 14th Amendment. Various legal commentators have disagreed, observing that such immigrants must follow U.S. laws, pay U.S. taxes, and so on.
Lawsuits soon followed the Trump EO, and the issue went to the U.S. Supreme Court. It published its decision in June 2026, stating that the 14th Amendment didn't contemplate any such exceptions. The Court struck down the Trump order. (See Trump v. Barbara, pdf.)
But that didn't end the matter. In August 2026, Trump issued two orders on the same topic. The first, CONTINUING TO PROTECT THE MEANING AND VALUE OF AMERICAN CITIZENSHIP, states that the U.S. government won't grant citizenship to children born in the United States to non-citizen parents if:
- either parent is an "alien enemy" (a member of a designated Foreign Terrorist Organization)
- either parent is a foreign government employee, which includes an ambassador or employee of a foreign embassy or consulate; or if the parent works for an international organization that has immunity in the United States
- either parent took part in a commercial transaction or fraud in order to purchase or access birthright citizenship for the baby, or
- the baby is born in a U.S. territory or territorial waters where U.S. citizenship isn't conferred by federal law.
The second order, ENDING BIRTH TOURISM, directed the Secretaries of State and of Homeland Security to carry out the primary order and take action to prevent birth tourism, such as by denying or revoking visas and barring U.S. entry to foreign nationals found to be "entering or attempting to enter the United States for the purpose of engaging in birth tourism." Exemptions can be made on humanitarian grounds or when it's in the U.S. national interest.
This one might also proceed all the way to the Supreme Court, as lawsuits are sure to follow.
Can a U.S.-Born Child's Citizenship Help the Parents Immigrate?
Although the parents of U.S. citizens are considered their "immediate relatives," the young citizen cannot use this as a basis to help the parents immigrate until turning 21. This is obviously a long time to wait.
If you are planning for the long term in this way, you should check in with an immigration lawyer, now and regularly, before the child turns 21. The reason is that, under current law, if you are living in the United States unlawfully after an illegal entry, you face major hurdles to actually receiving a green card (getting lawful permanent residence) through the child.
The first thing you should know is that, due to your illegal entry, you won't be able to stay in the U.S. and apply for the green card through the process known as "adjustment of status."
Why is that a big deal? Because once you leave the United States to use the alternate application procedure, called "consular processing" (where you attend your green card interview at a U.S. consulate in your home country), your past unlawful presence could subject you to a ground of inadmissibility popularly known as the "three- and ten-year time bars," whose effect is as follows:
- If you lived unlawfully in the United States for more than 180 days and then left (for example, to attend your green card interview at a U.S. consulate), you would be punished for the illegal stay by a 3-year bar on returning to the United States.
- If you lived unlawfully in the U.S. for more than one year and then left, you would be punished with a 10-year bar on returning.
- There is also a so-called permanent bar for people who were either ordered removed or stayed in the United States unlawfully for 1 year or more in total (even if it wasn't all at once), left the United States, and then attempted to enter the country illegally or were successful in reentering illegally. (Actually, this bar isn't insurmountable—after 10 years, you can request special permission to apply for a U.S. visa.) So, if you have been living illegally in the United States for more than one year, you should not leave and attempt to return illegally if you ever hope to get a green card.
Unless you are subject to the permanent bar, you can actually work off your time-bar period by leaving the United States either 3 or 10 years before your green card interview (or, roughly speaking, before your child turns 21). But you would obviously want to carefully discuss such a strategy with a lawyer first, particularly in case the laws change again.
How to Get Help
If you have a child in the United States and either you or your spouse are within the country illegally, consult with an experienced immigration attorney for a personal analysis and to help you to explore your options.
