Birthright Citizenship Remains Intact Due to New Injunction: Key Points for Employers

The recent Supreme Court decision, that no single judge may block President Trump's effort to end birthright citizenship on a nationwide basis, was set to go into effect on July 27, 2025. But a court ruling in a class action lawsuit on July 10, 2025, again preserves the right to U.S. citizenship for individuals born in the United States, regardless of parents' citizenship or the state where the birth occurred. Employers now may breathe a sigh of relief that a patchwork of state-by-state rules and document requirements for citizenship of a child born in the United States is on hold. But with further appeals imminent, employers still should keep an eye on the legal developments and potential implications, pending the Supreme Court's decision on whether the challenge to birthright citizenship is unconstitutional.

Attempt to End Birthright Citizenship

President Trump attempted to end birthright citizenship, a right guaranteed by the U.S. Constitution, by an Executive Order titled "Protecting the Meaning and Value of American Citizenship."

The underlying question—the legality of birthright citizenship—is a core constitutional one. The practice of automatically granting citizenship to children born on American soil, even if their parents are not citizens, has been considered a tenet of immigration law for over a century. The 14th Amendment, ratified after the Civil War, declared 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."

The Executive Order directs that either the mother or father must prove that they are U.S. citizens or lawful permanent residents at the child's time of birth.

This would require certain proof from mothers and/or fathers of immigration status at the time of the child's birth:

• If the mother is a lawful permanent resident or U.S. citizen at the time of the birth, then no evidence of the father's status should be required.
• If the mother is unlawfully present, then the father must provide evidence that he is a U.S. citizen or lawful permanent resident at the time of the birth.
• If the mother's presence in the United States at the time of birth is lawful but temporary (such as, but not limited to, on a tourist visa, visiting the United States under a Visa Waiver Program, as a foreign student, or even with valid employment authorization), then the father must provide evidence that he is a U.S. citizen or lawful permanent resident at the time of the birth.

"Mother" and "father" mean only the immediate "biological progenitor."

There is no mention of how the Executive Order would apply to children by adoption or by in vitro or surrogacy processes.

Litigation Leading to Supreme Court Decision

Legal challenges arose from 22 states and numerous organizations. All of the federal court judges hearing the cases have issued orders pausing the Executive Order and extended their court orders to the entire country, even to states that had not brought legal challenges.

The Trump Administration filed an emergency appeal to the Supreme Court—not seeking a ruling on the merits of the constitutional issue, but asking the justices to decide whether federal courts could use the procedure of "injunction" to halt implementation of the Executive Order on a nationwide basis.

The core issue was whether a federal judge should be able to freeze executive actions for the entire country, rather than just for parties directly involved in the lawsuit. The underlying constitutionality of birthright citizenship was not directly at issue. But the justices questioned the practical consequences of how the Constitution might apply differently in different locations, depending on who had sued and where.

The Supreme Court held that "Universal injunctions likely exceed the equitable authority that Congress has given to federal courts."

Rejecting the injunction procedure, the Supreme Court left the door open to using class action cases as an option to halt the Executive Order on a nationwide basis. Immediately following the decision, on June 27, parties filed a class action in New Hampshire, Barbara v. Donald J. Trump. On July 10, the federal judge agreed to certify a class action including all children who will be affected by the Executive Order and to issue a preliminary injunction blocking it, nationwide. The ruling is retroactive to February 20, 2025, the date the Executive Order was set to go into effect.

What Employers Need To Know

The Supreme Court decision sowed a high level of uncertainty, as it would impact how birth certificates are issued by states and local jurisdictions across the country, and benefits that employers could provide to their employees' children born after the Executive Order effective date. As a result of the decision, birthright citizenship could remain valid in some states and end in other states. Consequently, until the Court decides the underlying constitutional question, whether a baby born in the United States is a U.S. citizen would depend on the state of birth.

The New Hampshire case restores the status quo. Assuming there is no successful challenge to the class action lawsuit, employers will see no change to current rules.

But the government is expected to appeal immediately to the First Circuit Court of Appeals, with a fast-track return to the Supreme Court likely thereafter, and it is possible that, once again, there could be a reversal of the injunction, reverting back to the patchwork, partial enforcement of the Executive Order.

Takeaways for Employers

For now, employers should continue their current immigration-related processes, including review of documentation for compliance with Form I-9, for Employment Eligibility Verification, and continue with policies in place to support employees. However, employers should carefully monitor developments with respect to birthright citizenship, as interpretations continue to emerge.

With the myriad of Trump Administration revisions to immigration law, regulation, and policy, we will continue to monitor the changes, to help our clients navigate the process.