The U.S. Supreme Court, in its recent decision in Trump v. Barbara, concluded that the 14th Amendment guarantees citizenship to all children born in the United States, regardless of their parents’ immigration status.

Siding with over a century of federal court precedent, the Supreme Court struck down the Trump administration’s Executive Order (“EO”) denying citizenship to children born to parents with unlawful or temporary immigration status.

This decision maintains the status quo, avoiding a major shift in U.S. immigration policy that would have created deep uncertainty for not only employers, but also many employees and their families.

A Divided Court and the Potential for Congressional Action

While the decision was 6 to 3, Justice Kavanaugh, siding with the majority, found the EO violated only a federal statute, not the 14th amendment. This left only five justices finding the EO illegal on constitutional grounds.

Why does that matter? Because if one member of the five-justice majority departs the court, or changes their mind, the U.S. Congress could seek to end birthright citizenship by passing a new law. Potential legislation is already being discussed, though the success of such a law likely is low.

What Does this Mean for Employers?



With this decision, employers have needed clarity, avoiding potential career and life disruptions for many employees and their families.

However, expect the Trump administration to continue to make changes affecting workplace-based immigration programs. Employers must remain alert to changes that could impact immigration compliance obligations and foreign employee work authorization.

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Silberman Law will continue to monitor and report on these developments.

If you have questions about this Alert or want immigration law advice and guidance, please contact the Silberman law legal professional with whom you work, or simply reply to this Alert.