This is not new ground. Since the 1940s, the former Immigration and Naturalization Service and later USCIS have treated children born in the United States to foreign diplomatic officers who do not acquire citizenship at birth as eligible to register for permanent residence. In 1982, the INS published formal regulations at 8 CFR 101.3, 101.4, and 264.2 to create a procedure for creating records of lawful permanent residence for individuals born in the United States to foreign diplomatic officers accredited to the United States. Those regulations remain in force today.
What has changed is the scope. The new rule expands the definition of "foreign government employee" beyond diplomatic officers. Under the interim final rule, a foreign government employee now includes: ambassadors; persons employed by a foreign embassy or consulate who are nationals of that foreign country; persons employed by a foreign government in an official capacity; and persons employed by an international organization that possess international-organization immunity. This definition comes directly from Executive Order 14418, "Continuing to Protect the Meaning and Value of American Citizenship," issued by President Trump on August 6, 2026, and published in the Federal Register at 91 FR 51991.
The rule applies only to children born on or after September 4, 2026. Children born before that date will be treated under the regulations that were in place at the time of their birth. This means the old rules for diplomatic officers' children remain unchanged for those born before the effective date, and no retroactive application occurs.
To register, an applicant must file Form I-485 and establish that they have not abandoned their residence in the United States. If the application is granted, the applicant is considered a lawful permanent resident as of their date of birth. The existing procedures that have governed diplomatic officers' children since 1982 apply to this expanded group.
The interim final rule is tied to the Supreme Court's 2026 decision in Trump v. Barbara, which clarified that the Fourteenth Amendment's grant of citizenship to "all persons born... in the United States, and subject to the jurisdiction thereof" contains exceptions. The Court noted that these exceptions include children of foreign government employees, alongside the familiar exceptions for children of members of Indian tribes, children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state. The Court stated that "a person is 'subject to the jurisdiction' of the government of the country in which he is physically present... unless he falls under one of the familiar exceptions, such as for ambassadors."
The executive order directs the Secretary of Homeland Security to prevent the issuance of documents recognizing United States citizenship to certain individuals born in the United States where neither parent is a U.S. citizen and at least one parent meets the conditions outlined in the order. The rule clarifies that these individuals may instead register as lawful permanent residents.
The document notes that a preliminary injunction is currently in place in Casa Inc. v. Trump, No. 8:25-cv-00201 (D. Md Sep. 2, 2026). DHS states it will not take actions to implement the rule to any member of the certified class unless and until the government obtains relief from the injunction.
The public comment period closes on October 5, 2026, at midnight eastern time. Comments must be submitted through the Federal eRulemaking Portal at regulations.gov and must reference DHS Docket No. USCIS-2026-0496. Comments submitted by email, mail, hand delivery, courier, or on digital media storage devices will not be considered. The Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, can be reached at (240) 721-3000 for alternate submission instructions. Comments that reference a specific portion of the interim final rule, explain the reason for any recommended change, and include data, information, or authority supporting that change will be most helpful to USCIS in implementing these changes.
General information, not legal, immigration or tax advice. Confirm the details with Homeland Security Department before you act.
