DHS Expands Exception to Birthright Citizenship: Which US-Born Children May Be Left Out?

• Birthright citizenship in the US
• DHS expands category of employees
• Court order limits application

The Department of Homeland Security (DHS) has expanded its challenge to birthright citizenship in the US, adding more foreign employees whose children may not automatically qualify as citizens.

Effective September 4, 2026, an interim rule replaces the traditional «foreign diplomatic officer» category with the broader term «foreign government employee.»

This change covers certain embassy and consulate workers, foreign government employees, and some workers at international organizations with recognized immunity.

Children born in the US since September 4 are subject to the rule when neither parent is a US citizen, and at least one parent meets DHS requirements.

Who may be left out of birthright citizenship?

For years, the exception covered children of accredited foreign diplomats, who are considered outside US jurisdiction under the 14th Amendment’s citizenship clause.

Now, DHS is expanding it to include certain embassy and consulate workers, foreign government employees, and international organization workers with immunity.

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However, not everyone working for a foreign government automatically falls under the definition: the rule excludes, among others, certain contractors, personal employees, and workers of state-owned enterprises.

It also does not affect children born before September 4, 2026, who must be treated according to the regulations in effect at the time of their birth.

DHS offers permanent residence as an alternative

For minors who, under this new interpretation, do not acquire US citizenship at birth, DHS has expanded a pathway that allows them to register as legal permanent residents.

USCIS modified Form I-485 to include the category «person born in the United States to a foreign government employee,» replacing the previous limited reference to diplomatic status.

Updates to the Form G-325R will include certain children born in the US who are not considered citizens and do not register for permanent residence through this process.

The difference is significant: citizenship and permanent residence are not equivalent. The first is acquired at birth when constitutional requirements are met, while the second constitutes a migratory status and does not automatically grant all the rights of a citizen.

DHS just issued an interim final rule, stating that any child born here to a foreign government employee is not a US citizen because they are not subject to US jurisdiction «for purposes of birthright citizenship.» HA! Sorry. That’s not a thing… Either you’re subject to US… pic.twitter.com/8lzCcEV5ah

— David J. Bier (@David_J_Bier) September 4, 2026

A court order limits the new rule.

The biggest obstacle for the Trump Administration is in the courts: a preliminary order issued on September 2 in the case CASA Inc. v. Trump currently restricts the implementation of the policy.

USCIS says it will not apply the new rule to people protected by the lawsuit or in ways that conflict with the court order, as long as those protections remain in place.

The rule is now in effect, but it does not immediately eliminate birthright citizenship for all children of foreign government employees.

The next step will be in court. Judges will determine whether the government can expand an exception historically tied to diplomats and how the Constitution’s subject matter,» the jurisdiction» of the United States, applies to these cases, according to La Opinión and USCIS.