Visa question of the month - Birthright Citizenship to be abolished?

The 14th Amendment of the US Constitution states that individuals born in the United States automatically have American citizenship. This principle is known as "Birthright Citizenship".

US President Trump attempted to restrict this right by decree right at the beginning of his term of office, arguing that it should not apply to children of mothers who are in the USA illegally or only temporarily.

This would therefore also have a direct impact on pregnant people who are in the USA under a nonimmigrant status (i.e. only temporarily) and give birth to a child in the country. This child would then no longer automatically have American citizenship, but "only" that of the mother or parents.

In the case of your employee's wife, the legal residence status of the child would then initially be unclear. This is because Trump's decree does not provide any information on how these children would be dealt with under immigration law. Applications to the USCIS to obtain L-2 "child status" or application procedures outside the USA to obtain an L-2 visa at US consulates worldwide are conceivable. The decree therefore left a legal loophole here.

However, a federal court blocked Trump's attempt to restrict birthright citizenship within just a few days, calling the decree "blatantly unconstitutional". In the meantime, several other US states and civil rights institutions in the USA have joined the lawsuit against this decree.

As the lawsuits will go through numerous proceedings, the US Supreme Court will probably have to make a decision on this. However, this is not expected in the near future.

This means that the existing rule that children born in the USA automatically have US citizenship by virtue of "birthright citizenship" currently applies and will continue to apply until further notice.

If the child of the L-2 spouse is born in the USA, it will (as things stand at present) receive US citizenship and thus automatically have legal residence status in the USA.

L-2 application process at the US Consulate

Firstly, the applicant does not have to proactively state that she is expecting a child. However, if the question is asked, it must be answered truthfully. This is usually an issue if the pregnancy is already visible. However, a (nonimmigrant) visa would only be refused if consular officers became aware that entry into the USA is exclusively in connection with obtaining US citizenship for the child. Since this is not the case with the woman (accompanying spouse of L-1 visa applicant), it is almost impossible that there could be problems with the L-2 visa with regard to the pregnancy.

We have already handled numerous application procedures in this regard and, in particular in the case of "accompanying" pregnant women of employee transfers, there has never been a rejection. This is also due to the fact that obtaining US citizenship for the child does not result in any direct immigration law advantage for the parents.