As anticipated, the 47^th president issued a series of Executive Orders on his first day in office, one of which has caught significant attention within the EB-5 industry. The order, titled "Protecting the Meaning and Value of American Citizenship," seeks to narrow the citizenship rights granted by the 14^th Amendment. The amendment itself begins with the phrase, “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.” In the landmark decision United States v. Wong Kim Ark, decided in 1898, the Supreme Court held that a child born in the United States of Chinese parents who were ineligible to be naturalized themselves was nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.

In the more than a century since the Wong Kim Ark decision, courts have largely accepted that a child born in the United States of non-United States citizens is a U.S. citizen, with limited exceptions, such as children born of diplomatic representatives of a foreign state. Current data on the number of children born to unauthorized immigrant parents is uncertain, but in 2018, the Pew Research Center released a report indicating that births to unauthorized immigrants generally rose throughout the 1980s, 1990s, and 2000s, before declining with the onset of the Great Recession in 2007. According to the Annie E. Casey Foundation, approximately 24% of births in the United States in 2023 were to foreign-born mothers, though this data does not differentiate between unauthorized immigrant mothers and legally present foreign-born mothers. Moreover, the Center for Immigration Studies, a D.C.-based think tank, alleges that birth tourism results in about 33,000 births to women on tourist visas annually while hundreds of thousands more are born to mothers who are illegal aliens or present on other temporary visas.

The rules by the State Department on the issuance of visas in the "B" nonimmigrant classification for temporary visitors for pleasure state:

Travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa. Consequently, a consular officer shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose . . . Permitting short-term visitors with no demonstrable ties to the United States to obtain visas to travel to the United States primarily to obtain U.S. citizenship for a child creates a potential long-term vulnerability for national security.

President Trump’s Executive Order proposes to limit the scope of citizenship under the 14^th Amendment by excluding individuals born in the U.S. under the following circumstances:

• When the mother was unlawfully present in the U.S. at the time of birth, and the father was neither a U.S. citizen nor a lawful permanent resident; or
• When the mother’s presence was lawful but temporary (e.g., under a visa waiver program, student visa, work visa, or tourist visa), and the father was not a U.S. citizen or lawful permanent resident.

The ACLU along with others have already filed lawsuits challenging the order while seeking injunctive relief on the basis that this Executive Order would require a constitutional amendment to take effect, which would need to pass with a two-thirds majority in both the Senate and the House of Representatives, followed by ratification by three-fourths of the states.

The Executive Order does not change any policy related to the EB-5 Program, and any immediate effects on the program remain unclear. However, for those parents who have the means to travel to the United States to have their baby on U.S. soil and allow their child to reap the benefits of birthright citizenship, utilizing their economic means to pursue a green card through the investment and job creation requirements of the EB-5 Program may become a more attractive option. Hence, if birth tourism and other origins of citizenship are prevented through the narrowing of the 14^th Amendment, we should see significant increase in EB-5 demand.