Under U.S. birthright citizenship law, almost every person born on American soil is a U.S. citizen the moment they are born, regardless of their parents’ immigration status or nationality. The rule comes from the Citizenship Clause of the Fourteenth Amendment and has been settled law since the Supreme Court’s 1898 decision in United States v. Wong Kim Ark.1Justia U.S. Supreme Court Center. United States v. Wong Kim Ark A separate set of federal statutes governs children born abroad to U.S. citizen parents. Only a few narrow categories of people born in the country are excluded, and a 2025 executive order that tried to shrink the rule further has been blocked by the courts while litigation continues.
Who Qualifies by Being Born on U.S. Soil
The Fourteenth Amendment says that everyone born in the United States and subject to its jurisdiction is a citizen of the country and of the state where they live.2Congress.gov. Constitution of the United States – Fourteenth Amendment Citizenship attaches at birth. There is no application, no waiting period, and no discretion for the government to refuse it.
The parents’ immigration status is irrelevant. Whether the parents are lawful permanent residents, tourists on a short-term visa, students, or people without any legal documentation, the child born here is a citizen. The State Department has confirmed this directly: children born in the United States to parents who were in the country illegally at the time of birth acquire U.S. citizenship.3U.S. Department of State. 8 FAM 301.1 Acquisition by Birth in the United States The state-issued birth certificate is the primary proof.
“United States” for these purposes is broader than the 50 states. It also includes the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and (since 1986) the Northern Mariana Islands.3U.S. Department of State. 8 FAM 301.1 Acquisition by Birth in the United States Someone born in any of those places is a U.S. citizen at birth with the same rights as someone born in Ohio or California.4U.S. Department of State. 8 FAM 302.1 Historical Background to Acquisition by Birth in U.S. Territories and Possessions
The Narrow Exceptions
The phrase “subject to the jurisdiction thereof” in the Fourteenth Amendment carves out a very small set of people born on U.S. soil who are not citizens. The Supreme Court identified them in Wong Kim Ark, and the State Department applies the same categories today:3U.S. Department of State. 8 FAM 301.1 Acquisition by Birth in the United States
- Children of accredited foreign diplomats. Because diplomats have formal immunity from U.S. law, their children born here are not considered subject to U.S. jurisdiction and do not acquire citizenship at birth. The State Department tracks diplomatic accreditation so citizenship is not incorrectly recorded.5U.S. Citizenship and Immigration Services. Chapter 3 – Children Born in the United States to Accredited Diplomats
- Children of foreign heads of state and sovereign representatives during their official presence in the country.
- Children born during a hostile enemy occupation of U.S. territory. This category is legally recognized but has no modern application.
Outside those three categories, every child born on U.S. soil is a citizen. There is no exception for children of undocumented immigrants, children of visitors, or children whose parents plan to leave the country after the birth.
Children of Unknown Parentage
Federal law adds a companion rule for foundlings. A child of unknown parentage discovered in the United States before age five is presumed to be a citizen at birth. That presumption stands unless someone proves before the child turns 21 that the child was actually born outside the country.6Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth
Places People Wrongly Assume Count
One common misunderstanding involves overseas military bases. U.S. military installations and diplomatic facilities in foreign countries are not U.S. soil for citizenship purposes.3U.S. Department of State. 8 FAM 301.1 Acquisition by Birth in the United States A child born on a base in Germany or Japan does not receive citizenship because of the location. Instead, that child’s citizenship depends on the parents under the statutes for children born abroad.
Aircraft and ships follow a similar logic. A child born on a plane or vessel within U.S. territory, including within 12 nautical miles of the coast, is generally treated as born in the United States. A child born on a U.S.-flagged plane or ship outside U.S. territory does not become a citizen just because the vessel is American; that child’s citizenship also runs through the parents.
American Samoa: The One Territory That Is Different
People born in American Samoa are U.S. nationals, not U.S. citizens.7U.S. Citizenship and Immigration Services. Policy Manual – Becoming a U.S. Citizen Nationals owe allegiance to the United States and can live and work anywhere in the country freely, but they cannot vote in federal elections and lack some other rights reserved to citizens. The Fourteenth Amendment does not extend there because American Samoa is an unincorporated territory, and Congress has never granted birthright citizenship there by statute.8U.S. Department of State Foreign Affairs Manual. 8 FAM 308.2 – Acquisition by Birth in American Samoa and Swains Island In 2021 a federal appeals court held in Fitisemanu v. United States that American Samoans are not entitled to birthright citizenship under the Fourteenth Amendment, and the Supreme Court declined to take the case in 2022. American Samoans who want full citizenship go through naturalization after moving to a state or the District of Columbia.
Children Born Abroad to U.S. Citizen Parents
Citizenship for a child born outside the United States is not a matter of geography. It passes from parent to child under federal statutes, primarily 8 U.S.C. § 1401 and § 1409, and the requirements depend on how many parents are citizens and whether the parents are married.
Both Parents Are U.S. Citizens
If both parents are citizens at the time of birth and at least one of them has lived in the United States at any point before the birth, the child is a citizen at birth.6Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth
One Citizen Parent, Married Couple
When only one parent is a citizen and the parents are married, that parent must have been physically present in the United States for at least five years before the child’s birth, with at least two of those years occurring after the parent turned 14.6Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth The years do not have to be consecutive; they are counted as a total.
Unmarried Parents
When the parents are not married, 8 U.S.C. § 1409 adds requirements that differ by which parent is the citizen. If the U.S. citizen is the mother, she must have been physically present in the United States for at least one continuous year before the child’s birth.
If the U.S. citizen is the father, the rules are stricter. He must meet the same five-year physical presence threshold that applies to married couples, establish a blood relationship with the child by clear and convincing evidence, agree in writing to financially support the child until age 18, and take a formal step to establish legal parentage before the child turns 18. Acceptable steps are legitimation under the law of the child’s home jurisdiction, a written acknowledgment of paternity under oath, or a court order establishing paternity.9Office of the Law Revision Counsel. 8 USC 1409 – Children Born Out of Wedlock
Proving the Child’s Citizenship
Parents document a foreign birth with a Consular Report of Birth Abroad (CRBA) issued by a U.S. embassy or consulate. The CRBA confirms that the child was a citizen at birth and serves the same legal function as a domestic birth certificate.10U.S. Department of State. Birth of U.S. Citizens and Non-Citizen Nationals Abroad The State Department issues CRBAs only before the child turns 18.11USAGov. Prove Your Citizenship: Born Outside the U.S. to a U.S. Citizen Parent Missing that window does not erase the child’s citizenship, but proving it later becomes much harder. The application requires an in-person appointment with the child present.12U.S. Embassy & Consulates. Consular Report of Birth Abroad
The 2025 Executive Order and Where It Stands Now
On January 20, 2025, the White House issued an executive order titled “Protecting the Meaning and Value of American Citizenship.” It directed federal agencies to stop recognizing U.S. citizenship for two categories of children born in the country: those whose mother was unlawfully present and whose father was not a citizen or lawful permanent resident, and those whose mother was in the country on a temporary legal basis and whose father was not a citizen or lawful permanent resident.13The White House. Protecting The Meaning And Value Of American Citizenship It was written to apply only to children born at least 30 days after issuance.
The U.S. District Court for the District of New Hampshire issued a nationwide preliminary injunction blocking the order and certified a class of all children who would be affected. The court found that the plaintiffs were likely to succeed on both constitutional and statutory grounds.14Oyez. Trump v. Barbara The Supreme Court agreed to take the case, Trump v. Barbara, directly before the First Circuit could rule. As of 2026 the case is still pending and the nationwide injunction remains in effect. No child has been denied citizenship under the order.
Until the Supreme Court rules, birthright citizenship operates exactly as it has since 1868. Every child born on U.S. soil to parents outside the narrow diplomatic and sovereign categories is a citizen at birth.
What Birthright Citizenship Does Not Do for the Parents
A common misconception is that a U.S. citizen child gives the parents legal status or protection from removal. It does not. The child’s citizenship belongs to the child.
A U.S. citizen can petition to sponsor a parent for a green card, but only after the citizen turns 21.15U.S. Citizenship and Immigration Services. Bringing Parents to Live in the United States as Permanent Residents That is at least a 21-year gap. And if the parent has been unlawfully present in the United States for more than 180 days, leaving the country to process the green card at a consulate abroad triggers a three- or ten-year bar on reentry. Waivers exist for cases of extreme hardship, but they are discretionary and not guaranteed.