On August 6, 2026, President Trump signed two executive orders, Ending Birth Tourism and Continuing to Protect the Meaning and Value of American Citizenship, in the administration’s second attempt to restrict access to U.S. citizenship by birth, five weeks after the Supreme Court struck down its original 2025 order on this subject. Because our practice serves many clients on H-1B, L-1, O-1, E-1/E-2, R-1, TN, and other nonimmigrant visas, we want our clients to understand exactly what these orders do, what they do not do, and what steps, if any, are worth taking right now.

Background: The Supreme Court’s Decision in Trump v. Barbara

On June 30, 2026, the Supreme Court decided Trump v. Barbara, 609 U.S. ___ (2026), striking down the administration’s January 2025 executive order that had sought to deny automatic citizenship to children born in the United States to parents who were undocumented or only temporarily present. In a 6-3 decision authored by Chief Justice Roberts, the Court held that the Fourteenth Amendment’s Citizenship Clause extends birthright citizenship to children born in the United States “for whom no extraterritorial fiction applies,” reaffirming the jus soli principle recognized in United States v. Wong Kim Ark (1898). The ruling was a significant defeat for the administration’s broader effort to condition birthright citizenship on parental immigration status.

The two new executive orders are the administration’s response to that ruling. Rather than attempt to redefine birthright citizenship broadly, the new orders are narrower and target specific, defined categories of cases, while separately directing agencies to restrict entry for the purpose of “birth tourism.”

The Two New Executive Orders

1. Ending Birth Tourism

This order directs the Secretaries of State and Homeland Security to prevent and penalize “birth tourism,” which it defines as: (a) a foreign national entering the United States on a nonimmigrant visa for the purpose of giving birth on American soil; or (b) any effort by a foreign national to facilitate such entry by another person.

Under the order, the Secretaries are authorized, within their discretion, to:

• Deny visas or other travel authorization to applicants believed to be entering for birth tourism purposes;
• Revoke visas and permanently bar entry of individuals who engage or attempted to engage in birth tourism;
• Deny entry to, or seek removal of, individuals who previously engaged in or plan to engage in birth tourism; and
• Take action against agencies, companies, or individuals — in the U.S. or abroad — that facilitate birth tourism.

The order includes an exemption allowing the Secretary of State or Secretary of Homeland Security to waive these consequences on humanitarian grounds or where entry is determined to be in the national interest.

2. Continuing to Protect the Meaning and Value of American Citizenship

This order identifies specific, narrower categories of children who, in the administration’s view, fall outside the rule of birthright citizenship announced in Trump v. Barbara. It directs agencies not to issue or accept documents recognizing U.S. citizenship for a person when neither parent is a U.S. citizen and any of the following applies:

• A parent is a designated Foreign Terrorist Organization member or Specially Designated Global Terrorist (“alien enemy”);
• A parent is a foreign government employee — including ambassadors, foreign-national employees of an embassy or consulate, officials acting for a foreign government, or employees of an international organization with diplomatic immunity;
• A parent engaged in a commercial transaction to purchase or access birthright citizenship for the child, including arranging for the mother — or a surrogate — to be present in the U.S. specifically to give birth; or
• The child was born in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

Agencies have 30 days from the date of the order (by approximately September 5, 2026) to issue public implementation guidance.

Important Context for Our Clients

These orders are agency policy directives, not changes to the Immigration and Nationality Act or the Constitution. They direct how federal agencies will interpret and apply existing law; they do not and cannot override the Fourteenth Amendment or the Supreme Court’s holding in Trump v. Barbara.

Litigation is highly likely. The same coalition of advocacy organizations that successfully challenged the administration’s original 2025 order can be expected to challenge these narrower orders as well, particularly the citizenship-recognition order. Their validity, especially as applied to any category beyond the recognized diplomatic-immunity exception, is far from settled. The definitions matter. “Birth tourism” as defined in the first order targets entry for the specific purpose of giving birth, not incidental pregnancy during a lawful stay for work, study, treaty trade/investment, or other legitimate nonimmigrant purposes.

What Nonimmigrant Visa Holders Should Do Now

Most of our H-1B, L-1, O-1, E-1/E-2, R-1, TN, and similar clients are not the intended target of either order; their presence in the U.S. is for employment, investment, or other legitimate status-based purposes, not for the purpose of giving birth. That said, we recommend the following precautions while agencies finalize implementing guidance:

• Expect heightened scrutiny at consulates and ports of entry for any visibly pregnant nonimmigrant visa applicant or traveler, even where the underlying visa purpose is unrelated to birth tourism.
• If you are pregnant and plan international travel — including a visa stamping trip — carry clear documentation of your underlying nonimmigrant purpose (employment verification letter, most recent I-797 approval notice, pay stubs, enrollment records, etc.) and consult our office before you travel.
• Avoid any company, agency, or “package” that markets travel to the U.S. for the purpose of giving birth or obtaining citizenship — the first order specifically authorizes action against facilitators.
• If either parent is a foreign government employee, works for an international organization with diplomatic immunity, or has any nexus to a designated terrorist organization, discuss your specific situation with our office. These categories carry independent, order-specific risk.
• Families pursuing international surrogacy arrangements where neither intended parent is a U.S. citizen should seek counsel before finalizing plans, given the surrogacy language in the second order.
• Do not make irreversible decisions — about travel, delivery location, or otherwise — based solely on these orders. Given the pending likelihood of legal challenges, the practical effect of both orders may change significantly in the coming weeks.
• Watch for the agency implementing guidance due by approximately September 5, 2026, which will clarify how U.S. Citizenship and Immigration Services, the State Department, and Customs and Border Protection intend to apply these orders in practice.

Questions About How These Orders May Affect You or Your Family?

Litwin & Smith Immigration Law Group is closely monitoring implementation of both executive orders and any resulting litigation. If you are a nonimmigrant visa holder who is pregnant, planning international travel, or has questions about how these orders may affect your family, our office is here to help you evaluate your specific situation.

Donald E. Smith, Esq.  |  Managing Attorney  |  FL Bar No. 0545200  |  dsmith@litwinsmith.com

Donald E. Smith, Esq.  |  Associate Attorney  |  CA Bar No. 325534  |  desmith@litwinsmith.com

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