What was the reason behind Trump's change to citizenship status of foreign service members' children?

Question

From Business Insider:

The Trump administration has said children born to US service members or government employees overseas will no longer automatically be considered US citizens.

First question: Doesn't this violate the Naturalization Act of 1790, which states:

...and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons, whose fathers have never been resident of the United States...

Second question: What's the point? With so many things going on in the world, this seems to be a trivial change to citizenship law that would only make things harder on military families, and likely cost Trump some votes going into 2020. What reasons could there be for this change?

Answer 1

There is a lot of misleading information that is being reported out there about the upcoming change. The main misconception is that this change has to do with the automatic US citizenship at birth for most children born to US citizens abroad. It doesn't. The upcoming change deals with a different section of law that deals with citizenship for minors who have immigrated to the US as non-citizens and who have become US permanent residents.

Here is the actual official Policy Alert PDF from the USCIS that specifies the changes to the USCIS Policy Manual. It consists of two independent parts. The first part (pages 2-5) adds the definition for "residence". There is no policy change here. The definition that is being added is the same as what the term "residence" is currently already understood as; it just hadn't been explicitly written in the manual. This is not the part that is triggering the news reports.

The second part (pages 6-11) is the actual policy change that is triggering the news reports. It is an amendment to the USCIS Policy Manual, Volume 12, Part H, Chapter 4, titled "Automatic Acquisition of Citizenship after Birth (INA 320)", and Chapter 5, titled "Child Residing Outside of the United States (INA 322)", both dealing with citizenship for children after birth. There is no change to USCIS Policy Manual, Volume 12, Part H, Chapter 3, which deal with US citizenship at birth.

If you read the change is about, it is a change to the interpretation of the phrase "residing in the United States" for the purposes of INA 320. If you read the USCIS Policy Manual chapter on INA 320, it is a section of law which says that if a child is a US permanent resident (i.e. the child is a non-US citizen who immigrated to the US and is now a "green card holder"), under 18, residing in the US in the legal and physical custody of a US citizen parent, that child automatically becomes a US citizen. If the parent is a US citizen, why isn't the child already a citizen at birth, you might ask. Well, here are some examples: 1) the parent was not a US citizen when the child was born, and only naturalized to become a citizen later; 2) the parent was a citizen at the time of the child's birth, but did not meet the requirements to transmit US citizenship to a child born abroad at the time; or 3) the parent adopted the child after the child's birth.

One of the requirements in INA 320 is that the child must be residing in the US in order for the automatic grant of citizenship to take place. This is normally an easily-met condition, since the child must be a US permanent resident, and US permanent residents are expected to reside in the US anyway (or risk losing their permanent resident status). One exception is that US permanent residents who are serving the US government or military abroad, or who is the dependent of someone serving the US government or military abroad, can live outside the US without losing their permanent residency. In this case, USCIS previously had interpreted the "residing in the United States" condition to have an exception, so that it also includes a permanent resident child who was a living abroad as a dependent of a US military or government employee stationed abroad. However, as described in the change, the Department of State, which issues US passports, did not interpret it to have such an exception. USCIS will also no longer have this exception in its interpretation.

This change deals with an extremely rare edge-case situation. Basically, the child had to not have been a US citizen at birth (so the parent was not a citizen when the child was born, or did not meet the require to transmit citizenship, or adopted the child), and then the parent petitioned the non-citizen child to immigrate to the US and get a green card. Now, if at the time the child got the green card, if the child was residing in the US and the parent was a US citizen, the child would have immediately become a US citizen under INA 320 then. So in order for that not to have happened, either the child was immediately residing abroad with the US military or government employee upon getting the green card, or the parent was not already a US citizen at the time of the child getting a green card, and by the time the parent became a citizen, the parent was already stationed abroad, so there was no time when the child was residing in the US with a US citizen parent.

In order for the child to get US citizenship in this rare situation, either 1) the parent files N-600K for the child to naturalize under INA 322, or 2) the child returns to residing in the US with the US citizen parent prior to turning 18, at which point they would automatically become a US citizen under INA 320 without an application.

You quoted the section of the Naturalization Act of 1790 that deals with citizenship at birth for children born abroad. (That Act was repealed long ago and its provisions regarding citizenship at birth for children born abroad have been amended and superseded numerous times. The current rules for automatic citizenship at birth for children born abroad to US citizen parent(s) are in INA 301(c) and 301(g).) But this change does not change any of the rules regarding citizenship at birth for children born abroad.

One incorrect claim is that the change means that children born abroad to US citizen parents now have to file an application in order to have US citizenship. This is incorrect. When the conditions in the law for transmitting citizenship to a child born abroad are met, the child is automatically and involuntarily a US citizen, without needing any application or registration (the same way a child born in the US is automatically and involuntarily a US citizen, without needing any application or registration). Of course, it is a good idea for the parent to apply for a CRBA and/or US passport for the child early, since evidence might get lost over time, but technically, since the child is already a US citizen, he/she can apply for a US passport at any point in his/her life. On the other hand, if the conditions for transmitting citizenship are not met, the child is not a US citizen, and can only get US citizenship through immigrating to the US to become a green card holder (and getting citizenship as a minor through INA 320 or by applying as an adult), or through INA 322 (which usually requires taking an oath in the US); in this case, simply registering the child at a consulate is not enough to get the child citizenship.

Another incorrect claim deals with a deceptively similar provision regarding citizenship at birth for children born abroad. In the case of a child born abroad to one US citizen parent and one alien parent, INA 301(g) provides that the child is a US citizen if the US citizen parent was physically present in the US for a cumulative total of 5 years before the child's birth, including 2 years after the parent turned 14. There is an exception where time spent outside the US as an employee of the US government or military, or as the dependent of such an employee, is counted in the 5 years of physical presence.

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;

This exception sounds deceptively similar to the exception that USCIS is actually getting rid of in this policy change (both having to do with time abroad as a dependent of a military or government employee counting somehow as being in the US), so some people have incorrectly claimed that USCIS is getting rid of this exception too. But that is not the case, for several obvious reasons. 1) This exception is explicitly provided for in a Congressional statute, and executive branch manuals cannot override it. 2) The policy change concerns INA 320, and not INA 301, which is the section dealing with citizenship at birth. And in fact, the USCIS Policy Manual section on citizenship at birth for children born abroad to one US citizen parent and one alien parent (Volume H, Part H, Chapter 3, section B-3) mentions this exception, and, remember, this chapter is not being changed by this policy change.

Time abroad counts as physical presence in the United States if the time abroad was:

• As a member of the U.S. armed forces in honorable status;​
• Under the employment of the U.S. government or other qualifying organizations; or​
• As a dependent unmarried son or daughter of such persons.

Update: In 2020, Congress passed the Citizenship for Children of Military Members and Civil Servants Act to add an exception to residence requirements of INA 320 for children of service members (effectively going back to the way that USCIS had previously unofficially handled it), and the USCIS Policy Manual, Volume 12, Part H, Chapter 4, section C has been added to describe this change.

Answer 2

1. This does not violate the Naturalization Act of 1790, because that act is no longer in force. It was repealed nearly 225 years ago in 1795. Current US nationality law is found in Title 8 of the United States Code. Chapter 12 codifies the Immigration and Nationality Act of 1952, as amended. Its Subchapter III concerns nationality and naturalization.

2. As far as I know, no reason has been given, so you'd have to ask the president, or more probably Stephen Miller. One report I read quoted a USCIS or other DHS official saying that the policy had no statutory basis, which seems to be true. But many other policies in the area of immigration law have no statutory basis, so it's not clear why this one is the one being changed. Speculation and opinion are discouraged here, so I will say no more.

Answer 3

The reporting on this topic is misleading

The purpose of the change is to rectify an ambiguity in procedure for US servicemen and women to get their children recognized as US citizens. It is not to deny citizenship to anybody.

There are two sections of the law which are relevant, where someone born abroad can get citizenship; Section 320, where someone born abroad to US Citizens but residing in the US can automatically get citizenship, and Section 322, where someone born abroad to US Citizens but residing outside the US can be naturalized.

The problem was that the rules were confusing, because US servicemen were able to use both procedures at the same time, because it is generally considered that a person serving in the military is residing in the US, even if it is on a military base in a foreign country. It turns out that there actually is no provision under Section 320 for this, but it is explicitly laid out in Section 322, so USCIS thinks that Section 322 should apply and Section 320 should not.

In no case, is anyone being denied citizenship who is entitled to it by existing law. The worst thing you can say about this is that it makes things needlessly complicated for servicemen and women who have children born abroad get their citizenship recognized under Section 320, but that's rectified by either naturalizing under 322 or just waiting to do it until after they come back from their deployment.

Here is a fact sheet about this from USCIS:

https://www.uscis.gov/news/fact-sheets/uscis-policy-manual-update

Here are the relevant sections of the law:

https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1431&num=0&edition=prelim

https://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title8-section1433&num=0&edition=prelim

Answer 4

This is a policy change that would deny citizenship to the children of some non-citizen U.S. residents (who serve the military and are currently living abroad at U.S. military bases). This policy change serves the interest of xenophobes who celebrate any form of denial of citizenship to children of non-citizens. Many Republicans believe immigration should be as low as possible. Many xenophobic members of the far-right within Trump's base believe in the Great Replacement Theory, some versions of which claim that Democrats are trying to grant citizenship to as many non-white immigrants as possible to replace the white race and turn voter demographics toward the DNC's favor. Right-wing pundits like Tucker Carlson and Jeanine Pirro have been pushing the Great Replacement Theory. It has been remarked that there is a tight feedback loop between the views that Fox News pushes and the policies that Trump promotes. Republicans have become more xenophobic under Trump, and stoking xenophobia is a cornerstone of how Trump galvanizes his base.