Section 1 Short title
This Act may be cited as the “Birthright Citizenship Clarification Act of 2026”.
Birthright Citizenship Clarification Act of 2026
A BILL
To amend section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are not nationals or citizens of the United States at birth.
Sec. 2 Sense of congress
It is the sense of Congress that—
the phrase “subject to the jurisdiction thereof” in section 1 of the 14th Amendment to the Constitution of the United States reflects a principle of allegiance and obedience, not mere geography;
United States v. Wong Kim Ark, 169 U.S. 649 (1898), involved a person born in the United States to alien parents permanently domiciled and residing in the United States, and described historical exceptions for children of foreign sovereigns or their ministers, persons born on foreign public ships, children of enemies within and during a hostile occupation, and children of members of Indian Tribes;
Congress later addressed the Indian Tribe exception through the Indian Citizenship Act of 1924 and carried forward the words “born in the United States, and subject to the jurisdiction thereof” in the Nationality Act of 1940 and the Immigration and Nationality Act of 1952, now codified at section 301(a) of the Immigration and Nationality Act (8 U.S.C. 1401(a)); and
Justice Kavanaugh, concurring in the judgment and dissenting in part in Trump v. Barbara, concluded that Executive Order 14160 conflicted with section 301(a), but explained that Congress could establish exceptions for children born to foreign citizens unlawfully or temporarily in the country; this Act exercises that authority to clarify citizenship at birth and deter birth tourism and visa manipulation.
Sec. 3 Purposes
The purposes of this Act are—
to preserve in Federal statutory law the historical exceptions to citizenship at birth for children of foreign sovereigns or their ministers, persons born on foreign public ships, and children of enemies within and during a hostile occupation of part of the territory of the United States;
to amend section 301(a) of the Immigration and Nationality Act (8 U.S.C. 1401(a)) in the manner identified by Justice Kavanaugh by establishing statutory exceptions for persons born in the United States to foreign citizens unlawfully or temporarily present in the United States; and
to define lawful but temporary presence by reference to temporary presence categories reflected in Executive Order 14160, including the Visa Waiver Program and student, work, tourist, and other nonimmigrant visas.
Sec. 4 Citizenship at birth clarification
In general— Section 1401(a) of title 8, United States Code, is amended by striking the semicolon at the end and inserting the following:
Certain persons not subject to jurisdiction— Section 1401 of title 8, United States Code, is amended by adding at the end the following:
“(i) Certain persons not subject to the jurisdiction of the United States
“(1) Persons described—For purposes of subsection (a), a person born in the United States shall not be considered born subject to the jurisdiction of the United States, and shall not be a national or citizen of the United States at birth under subsection (a), if, at the time of such person’s birth—
“(A) the person is a child of a foreign sovereign or a minister of a foreign sovereign;
“(B) the person is born on a foreign public ship;
“(C) the person is a child of an enemy within and during a hostile occupation of any part of the territory of the United States;
“(D) the person’s mother is an alien who is unlawfully present in the United States, and the person’s father is not, at the time of such person’s birth, a citizen or national of the United States or an alien lawfully admitted for permanent residence; or
“(E) the person’s mother is an alien whose presence in the United States is lawful but temporary, and the person’s father is not, at the time of such person’s birth, a citizen or national of the United States or an alien lawfully admitted for permanent residence.
“(2) Definitions—In this subsection:
“(A) The term “alien” has the meaning given such term in section 101(a)(3).
“(B) The term “alien lawfully admitted for permanent residence” has the meaning given such term in section 101(a)(20).
“(C) The term “mother” means the immediate female biological progenitor.
“(D) The term “father” means the immediate male biological progenitor.
“(E) The term “foreign public ship” means a vessel or aircraft owned, operated, or commanded by a foreign sovereign and used exclusively for a sovereign, public, noncommercial governmental purpose.
“(F) The term “hostile occupation” means the actual hostile control of any part of the territory of the United States by the Armed Forces, agents, or instrumentalities of a foreign enemy during a war, invasion, or armed attack against the United States.
“(G) The term “minister of a foreign sovereign” means an ambassador, public minister, diplomatic agent, or other official representative of a foreign sovereign who is recognized by the United States and entitled to diplomatic immunity under Federal law or treaty obligation. For purposes of this subsection, the term “foreign sovereign” means a foreign monarch, head of state, head of government, or other sovereign authority of a foreign state recognized by the United States.
“(H) The term “unlawfully present” means, with respect to an alien, that the alien—
“(i) is present in the United States without having been admitted or paroled;
“(ii) remains in the United States after the expiration of the period of stay authorized by the Secretary of Homeland Security or the Attorney General;
“(iii) is present in the United States in violation of the terms or conditions of admission, parole, status, classification, or other authorization to remain; or
“(iv) otherwise lacks lawful immigration status under the immigration laws.
“(I) The term “lawful but temporary” means, with respect to the presence of an alien in the United States, presence that does not constitute lawful admission for permanent residence and that is pursuant to—
“(i) the Visa Waiver Program under section 217; or
“(ii) a nonimmigrant visa or nonimmigrant classification under section 101(a)(15), including a student, exchange, tourist, business, work, temporary worker, crewman, transit, treaty trader, treaty investor, intracompany transferee, or other temporary nonimmigrant visa or classification.”
Sec. 5 Effective date; prospective application
Effective date— The amendments made by this Act shall apply to persons born in the United States on or after the date that is 30 days after the date of enactment of this Act.
Prospective application— Nothing in this Act may be construed to deny or impair citizenship or nationality at birth to any person born before the date described in subsection (a).
Sec. 6 Severability
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional or otherwise invalid, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any other person or circumstance shall not be affected.