Birthright Citizenship

Trump is on a rampage to get rid of birthright citizenship. There are two primary ways for children of non-citizens to acquire U.S. citizenship automatically.  

• Unrestricted birthplace-based citizenship (jus soli) grants citizenship to anyone born on U.S. soil, regardless of their parents’ status.
• Restricted ancestry-based citizenship (jus sanguinis) extends citizenship to children born abroad to U.S. citizens.

The Fourteenth Amendment of the Constitution guarantees birthright citizenship. It states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” 

In 1898, the U.S. Supreme Court clarified that children born in the U.S. to immigrant parents are citizens regardless of their parents’ immigration status. See U.S. v. Women Kim Ark, 169 US 649 (1898). 

It is extremely unlikely that Trump could eliminate birthright citizenship. It is a long-settled constitutional right. In order to do so, Trump would need to amend the Constitution, which is a long and onerous process. 

What Can You Do? 

Now is the time to get passports for your children born in the U.S. or, if born abroad, to register their births with the U.S. consulate. 

To obtain a U.S. passport, you can visit this site. It is a straightforward process. You can go to the post office or a AAA office to apply for the passport or complete the application online. Processing time is currently about 4-6 weeks. 

To report the birth of a child abroad, you can register on the U.S. consulate’s website. The child must be under 18 at the time of application. 

It’s Time to Naturalize 

If you are eligible to apply for naturalization to obtain U.S. citizenship, now is the time to do it.  

Requirements 

• You have been physically present in the United States more than outside the country during the requisite waiting period. 
• If you are a male and received your green card between 18-26 years old, you must register with the Selective Service System (the draft) and provide proof to USCIS. You can register here. 
• You must demonstrate good moral character for the waiting period. 
• You must have paid your taxes and not have outstanding debts with the IRS. 
• Be willing to take the oath of allegiance to the United States. 

Tips and cautions

• If you obtained your green card through a marriage petition, you must still be married to that person to apply after 3 years; otherwise, you must wait five years. 
• You can apply 3 months before your waiting period ends. For example, if you received your green card from a grant of asylum, you can apply for naturalization after 3 years and 9 months. 
• For marriage-based applicants, be cautious that if your marriage seems sketchy, USCIS can and will reinvestigate your marriage petition. If they are not satisfied with your marriage petition, they can determine that you should not have been granted a green card in the first place and place you into removal proceedings. Remember that USCIS cannot remove your permanent resident status; only a judge has the authority to do so in court proceedings. 
• If you have any arrests during the waiting period, you may not qualify for naturalization and, depending on the nature of the charge, risk being placed into removal proceedings. If you have any sealed or expunged cases, you must unseal them and obtain certified docket sheets. 

Conclusion 

While many of my clients and those in the immigrant community are rightly concerned about a second Trump presidency and the forthcoming policy changes, there are things you can do to prepare. In this series, I’ll be addressing different concerns and policy issues.