Supreme Court Sustains Birthright Citizenship in Highly Anticipated Decision on last day of 2025-2026 Session

In his first day in office on January 20, 2025, President Trump issued an Executive Order seeking to eliminate birthright citizenship. Birthright citizenship bestows U.S. citizenship on anyone born in the United States, regardless of the status of the parents and with very little exception.  The exceptions might include children of diplomats, or children of ‘alien enemies.’

In Trump v. Barbara (No. 25-2365), the Court held that the laws surrounding birthright citizenship which have been in place for over 125 years remain unchanged.

The Citizenship Clause in the 14^th Amendment to the constitution states that, “All Persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside”.  The Trump administration argued that the phrase ‘subject to the jurisdiction of’ did not apply to those born of a parent who might not be a U.S. permanent resident or a U.S. citizen.

Going forward, consideration to several Justices’ opinions that Congress could amend federal law to create exceptions to birthright citizenship for children born to parents illegally present in the United States or in the United States on a temporary basis might occur.  For instance, children of foreign students or foreign nonimmigrant workers would be ineligible for U.S. citizenship despite being born on U.S. soil.  Such changes in law would have to be introduced by congressional legislation which would no doubt be subject to federal court challenge.

Supreme Court determines that U.S. Customs and Border Protection officers do not have to be presented with clear and convincing evidence that a returning U.S. permanent resident has committed a crime of moral turpitude before considering them as an application for admission to the United States and not as a returning permanent resident.

In Blanche v. Lau, 609 U.S. __ (2026), the Supreme Court determined that returning permanent residents (‘green card holders’) may be viewed as applicants for admission to the United States, and not as returning permanent residents. As returning residents, more rights attach to such status.  The Court agreed with the administration that the government only needs to furnish clear and convincing evidence that the lawful permanent resident committed a crime at removal proceedings, and not before.  The upshot is that U.S. permanent residents have less rights in seeking readmission to the United States and are subject to detention until removal proceedings occur and a final determination regarding their admissibility would be made. Caution is advised for permanent residents charged with petty crimes without conviction, or those with a history of criminal conviction attempting to be readmitted to the United States. Best to consult with counsel before planning international travel if a permanent resident finds themselves in this situation. Our Immigration Alert on this topic prior to final decision by the Supreme Court may be found here: Green Card Holders and the Future of Their Rights for Admission to the United States

Other Recent U.S. Immigration Developments

USCIS amends regulations relating to foreign students and introduces specific expiration dates for F1 and J1 visa holders and limits courses of study.

Foreign students enrolling in U.S. universities and pursuing a course of study in the United States are facing an unprecedented change in their status.  For decades, F-1 and J-1 foreign students have been admitted with a duration of status (D/S) notation on their admission documents, permitting them to remain in the United States for as long as the academic program in which they were enrolled required, plus a grace period afterward.  That has now changed and the changes include:

• A fixed 4—year period of admission
• Grace periods reduced from 60 days to 30 days after completion of a course of study
• Mandatory filings for extension of stay for multiyear programs
• Regulations affecting J1 visa holders as well as F1 foreign students.

When will the regulations take effect?

The rule was filed with the OMB on May 5, 2026. Generally, processing will take 30-90 days and the Department of Homeland Security (DHS) will publish the final rule in the Federal Register. It is expected to affect new students entering the United States for the Fall 2026 semester in September 2026.  The effect on the new regulations and how they might affect students currently in D/S status have not been published.

Optional Practical Training (OPT) and STEM OPT Regulations –

• Students are advised to apply for OPT at least 90 days prior to graduation
• Students are advised to confirm their program end dates, check I20 expirations and assure they have sufficient time remaining in their academic program to assure compliance with any new regulations taking effect.
• Check end dates on I20 and I94 arrival documents to assure that any change of status is filed while foreign students maintaining their status.
• Monitor the Feder al Register to assure when the regulations are issued and how they might affect the foreign student or J1 trainee or intern.

A good point of reference for all foreign students may be found here:

• F-1 Student Visa 2025: OPT, STEM OPT & Green Card Path
• F-1 to H-1B: Complete Transition Guide for International Students
• J-1 Exchange Visitor Visa: Complete Guide — Waivers & Physician Rules
• New US Visa Interview Rules 2026: Fear-of-Return Question

See also: STEM OPT Extension 2026 Guide.

No doubt the new regulations will affect incoming students and possibly, given the new stringencies, will depress future interest in attendance at U.S. universities in the short term until the regulations are clarified and confirmation that university attendance is not fraught with immigration-related challenges

For more information
If you have any questions or would like to discuss, please reach out to a member of the Tarter Krinsky & Drogin Business & Corporate Immigration Practice.