What Birthright Citizenship Means for 150,000 Children Born Every Year to Legal Visa Holders

The birthright citizenship case isn't just about undocumented immigration. Here is the specific impact on 150,000+ children born annually to legal visa holders like H-1B workers.

The political framing of the birthright citizenship debate as being about undocumented immigration has obscured a quantitatively larger group whose children would be more immediately affected by any change to current constitutional interpretation: the approximately 150,000 children born annually to parents who are in the United States on temporary legal visas.

H-1B visa holders — the category that includes the majority of skilled technology, engineering, and science workers from India and China — are authorized to work in the US for specific employers under three-year initially renewable visas. They can apply for permanent residence, but the employment-based immigration system has a per-country cap that creates backlogs of 15-30 years for Indian nationals (given the large number of Indian H-1B workers relative to the country's annual green card allocation).

A family that arrives from India on H-1B status in 2010 and has a child in 2012 currently has an American citizen child. Under Trump's executive order's interpretation, that child would not be a citizen — because the parents' status is neither legal permanent residence nor citizenship, and the order's interpretation would exclude children of visa holders.

The specific humanitarian and practical consequences are significant. A child who has grown up American — attended American schools, developed American social networks, has no formative memory or practical connection to India — whose citizenship is retroactively questioned would face a situation for which there is no clean resolution. They are not Indian citizens; India does not automatically grant citizenship to children of Indian nationals born abroad. They are stateless in practical terms if American citizenship is denied.

For the technology industry, which employs hundreds of thousands of H-1B workers, the birthright citizenship case is an existential threat to the US as a destination for skilled immigration: the calculation that skilled workers make when choosing between American opportunities and opportunities in Canada, Germany, or Australia now includes the specific question of whether their US-born children will have the citizenship security that other destinations automatically provide.