For more than a century, under the 14th amendment to the U.S. Constitution, it has been the law of the United States that anyone born in a state is a U.S. citizen. This is birthright citizenship: babies are born with a right to citizenship. Some of the territories also have birthright citizenship. For example, everyone born in Puerto Rico since March of 1917 is a U.S. citizen at birth. This year, President Trump signed an executive order limiting birthright citizenship. How might this affect your adopted child?
What did the executive order say?
The executive order limited the citizenship of babies born in the United States in two cases:
- when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth
- when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth
Under current law, an expectant mother in the United States on a work visa or even without documents can plan adoption for her child. Since the child will be born a citizen of the United States, he or she will not be vulnerable to the kinds of problems international adoptees have faced with their citizenship.
If the executive order stands, that could change. If neither of the birth parents is a U.S. citizen or permanent resident, their child will also not be a U.S. citizen. This could include undocumented people, but it would also apply to foreign students or people here on workers’ visas. An expectant mom who is not legally allowed to be in the United States might hesitate to admit that, in which case her baby would not have birthright citizenship — and that could be a surprise to the adoptive parents.
What have the courts said?
This executive order is currently going through the courts. Several courts around the country blocked the executive order with “universal” or national injunctions. The Supreme Court decided that the national injunctions could not stand. The 9th U.S. Circuit Court of Appeals then decided that the injunctions could stand, because the executive order was itself unconstitutional. The Supreme Court had not considered that question.
Many organizations, individuals, classes of people, and states have already brought suits against the executive order, and the court cases continue. The question of its constitutionality may yet come up in the Supreme Court. We cannot at this point guess what the outcome will be.
What’s the solution?
If would-be adoptive parents are working with an expectant mom who is not herself a U.S. native, they should be prepared to go through the naturalization process for the baby. Since it is not possible to know for certain whether the executive order will have become law when the baby is born, it makes sense to be prepared for this extra step, just as parents with international adoptions must be prepared for it. That way, whatever the outcome, you will be ready.
Heimer Law specializes in adoptions, and has extensive experience with all kinds of adoptions. We are happy to help with any questions about your adoption journey. Call (479) 225.9725 or fill out our simple inquiry form.
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