The Fourteenth Amendment’s guarantee of birthright citizenship makes anyone born in the United States and subject to its jurisdiction a citizen at birth, no matter their parents’ nationality or immigration status. That rule has held since 1868, and it applies automatically to the overwhelming majority of births on American soil.
The operative language sits in Section 1: “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.”1Congress.gov. U.S. Constitution – Fourteenth Amendment Two things must be true: birth on U.S. soil, and being subject to U.S. jurisdiction at the moment of birth. For a child born in an American hospital to almost any parent, both are satisfied without any paperwork.
The Supreme Court confirmed how broadly this sweeps in United States v. Wong Kim Ark (1898). Wong was born in San Francisco to Chinese parents who could not naturalize under the Chinese Exclusion Act, and the government tried to deny his citizenship on that basis. The Court held that the Fourteenth Amendment “includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States,” subject only to narrow exceptions.2Justia U.S. Supreme Court Center. United States v. Wong Kim Ark Ordinary legislation cannot override that rule.
Where Birthright Citizenship Applies
Every one of the fifty states and the District of Columbia counts as U.S. soil for the Citizenship Clause. Federal statutes extend citizenship at birth to several territories as well. Anyone born in Puerto Rico on or after January 13, 1941, and subject to U.S. jurisdiction, is a citizen at birth.3Office of the Law Revision Counsel. 8 USC 1402 – Persons Born in Puerto Rico on or After April 11, 1899 Separate provisions cover Guam and the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands falls in the same category.4Office of the Law Revision Counsel. 8 U.S. Code Chapter 12 Subchapter III Part I – Nationality at Birth and Collective Naturalization
American Samoa Is the Exception
People born in American Samoa are classified as non-citizen U.S. nationals rather than citizens.5U.S. Citizenship and Immigration Services. Chapter 2 – Becoming a U.S. Citizen Federal law defines nationals born in “outlying possessions” as owing permanent allegiance to the United States without holding full citizenship.6Office of the Law Revision Counsel. 8 USC 1408 – Nationals but Not Citizens of the United States at Birth Non-citizen nationals can live and work anywhere in the country without a visa, but they cannot vote in federal elections or hold certain federal positions without naturalizing. In Fitisemanu v. United States (2021), the Tenth Circuit held that the Fourteenth Amendment does not require extending birthright citizenship to American Samoa, noting that the territory’s elected representatives had urged the court not to “impose citizenship on an unwilling people.”7Justia Law. Fitisemanu v. United States, No. 20-4017 (10th Cir. 2021)
The Narrow Exceptions
“Subject to the jurisdiction thereof” carves out a small set of cases. Wong Kim Ark identified them, and they have stayed narrow ever since.
A child born in the United States to an accredited foreign diplomat is not subject to U.S. jurisdiction under international law and does not receive citizenship at birth. Federal regulations allow the child to be treated as a lawful permanent resident from birth, but citizenship would require naturalization later.8eCFR. 8 CFR 1101.3 – Creation of Record of Lawful Permanent Resident Status for Person Born Under Diplomatic Status in the United States The exception is limited to diplomats with formal accreditation, not every foreign government worker in the country.
A child born to enemy forces during a hostile military occupation of U.S. territory would also fall outside the clause.9Constitution Annotated. Amdt14.S1.1.2 Citizenship Clause Doctrine This has no practical modern application; it exists as a theoretical boundary.
Wong Kim Ark also listed children of tribal members “owing direct allegiance to their several tribes” as an exception, on the reasoning that tribes stood outside ordinary U.S. jurisdiction. Congress closed that gap with the Indian Citizenship Act of 1924, and current federal law grants citizenship at birth to any person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, without affecting tribal property rights.10Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth
Children Born Outside the United States
The Fourteenth Amendment itself only covers births on U.S. soil, but a separate statute, 8 U.S.C. ยง 1401, extends citizenship at birth to many children born abroad to U.S. citizen parents.10Office of the Law Revision Counsel. 8 USC 1401 – Nationals and Citizens of United States at Birth The rules depend on the parents’ status:
- If both parents are U.S. citizens, the child is a citizen at birth as long as at least one parent lived in the United States or its outlying possessions at some point before the birth. There is no minimum length of residence.
- If one parent is a citizen and the other is a noncitizen, the citizen parent must have been physically present in the country for at least five years total, with at least two of those years after age fourteen. Time in the U.S. Armed Forces, in U.S. government service, or with a qualifying international organization counts.
- If one parent is a citizen and the other is a non-citizen national, the citizen parent must have been physically present in the United States for a continuous period of one year before the birth.
Parents in this situation should apply for a Consular Report of Birth Abroad at the nearest U.S. embassy or consulate while the child is under 18. The CRBA documents that the child acquired citizenship at birth, but it is not a birth certificate and does not establish legal parentage or custody.11Travel.State.gov. Birth of U.S. Citizens and Non-Citizen Nationals Abroad
The 2025 Executive Order and the Pending Case
In January 2025, President Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship” that sought to deny automatic citizenship to children born in the United States when the mother was unlawfully present and the father was not a citizen or lawful permanent resident, or when the mother’s presence was lawful but temporary (such as a tourist or student visa) and the father was not a citizen or lawful permanent resident.12The White House. Protecting The Meaning And Value Of American Citizenship
Federal courts blocked the order almost immediately. Multiple district courts issued injunctions, and appellate courts upheld them. The Supreme Court partially stayed some of the nationwide injunctions in June 2025 and then agreed to take up the constitutional question directly. Oral argument in Barbara v. Trump took place on April 1, 2026, and a decision is pending as of mid-2026.13Congress.gov. Birthright Citizenship: Litigation Status Update Until the Court rules, the executive order remains enjoined and birthright citizenship continues to operate under the rule set by Wong Kim Ark.
Proving Birthright Citizenship
A certified birth certificate from a state or local registrar is the standard proof. For a U.S. passport or other federal purpose, the certificate should show your full name, date and place of birth, your parents’ names, and the official seal of the issuing office.
If your birth was never recorded or the original certificate is unavailable, secondary evidence can fill the gap. Accepted alternatives include a hospital birth certificate, a baptismal certificate, census records, and early school records showing your place of birth.14USAGov. Prove Your Citizenship: Born in the U.S. With No Birth Certificate Documents created close to the time of birth carry the most weight. Fees for a certified copy of a birth certificate vary by state but generally run between $15 and $30.
One point that catches people off guard: federal law requires a U.S. citizen to enter and leave the country using a valid U.S. passport, even someone who also holds another country’s passport.15Office of the Law Revision Counsel. 8 USC 1185 – Travel Control of Citizens and Aliens Dual citizenship itself is not restricted by U.S. law, but at U.S. borders the American passport is the one that has to come out.