Mistrust created a storm of confusion around citizenship changes

Last week, a new controversy over the Trump administration’s immigration policies erupted after U.S. Citizenship and Immigration Services (USCIS) unveiled a policy memorandum that impacted how children who are not born as U.S. citizens abroad, but whose parents are citizens — including U.S. government employees and armed forces members overseas — could automatically gain U.S. citizenship. 

Although the memorandum actually applies to a very narrow group of individuals, it sparked major backlash and confusion over whether the government would no longer automatically grant citizenship to the children born to any U.S. government employees or members of the Armed Forces serving overseas.

The controversy followed a familiar, if tired, pattern for the introduction of new immigration policies in the Trump era. 

The Trump administration created confusion about the memo’s impact on families of overseas U.S. citizen government employees and armed forces members by botching the vague memo’s unveiling. This included releasing a badly worded press release and failing to coordinate the rollout between USCIS and the White House. 

However, the immigration advocacy community’s relentless distrust of the Trump administration and anger among members of the military and foreign service led many of them to prematurely state that the memo would eliminate automatic citizenship to children born to these U.S. citizens before fully assessing its contents, compounding this confusion even further.

Despite the confusion created by the administration and immigration advocates, the reality is that while the new policy will create some additional bureaucracy for some U.S. citizens residing abroad, including government employees and members of the military, it will not deny citizenship to anyone who would otherwise have gotten it and it will affect a narrower group of people than initially assumed.

In order to understand who this new policy affects, one must first know the different ways someone born outside the United States can be a U.S. citizen. In general, some people born outside the United States can be citizens at birth if at least one of their natural parents is a citizen when they are born and that parent has spent enough time in the United States before the child is born. 

This is the case for the vast majority of cases of children born abroad who become U.S. citizens at birth, including to military and diplomatic parents overseas. Their citizenship can be documented via a Consular Report of Birth Abroad and they can immediately get a U.S. passport.

For children adopted by U.S. citizens living abroad, or whose parents hadn’t resided long enough in the United States before their birth, they may not be citizens at birth. However, immigration law allowed them to automatically become citizens if they had a green card and themselves “resided” in the United States in the custody of their parent before the age of 18. This is a much smaller group of people who will be affected. USCIS has estimated it might apply to between 20 and 30 people per year and a Defense Department official told CNN 100 families might be affected annually.

The key change made by this policy is the definition of residing in the United States. Previous policy said that U.S. government employees working abroad and military serving abroad under government orders could still be considered “residing” in the United States for the purposes of this section of law, allowing their children to acquire automatic citizenship when they got their green card. 

However, USCIS now says that this is not an appropriate interpretation of the statute, meaning that one cannot be simultaneously residing in the United States and overseas. In this case, they would have to file an application to naturalize the child after they return to physically reside in the United States.

In short, the memorandum’s narrow scope makes it difficult to present it as a major overhaul of how children become U.S. citizens. For sure, it is reasonable to ask whether this needed to be done and why. 

However, while some claim that this memorandum kicks off the Trump administration’s efforts to chip away at birthright citizenship, we would need to see both additional and stronger measures come out before making a definitive statement about whether the administration seriously intends to eliminate this long-standing legal precedent. 

To be sure, the Trump administration has adopted measures that severely restrict legal immigration to the United States, depriving the country of individuals who strengthen our communities and economy. 

But it is important to assess every immigration policy based on its contents before jumping to conclusions about intent, especially when it has bearing on the ways children gain citizenship in the United States. It’s the least we can do to advance a productive debate around immigration in this country, which is already fraught with emotion, anger and misinformation.

Cristobal Ramón is a senior immigration policy analyst at the Bipartisan Policy Center.