The Trump administration’s August 2026 executive actions nevertheless seek to restrict federal recognition of citizenship in specified circumstances and to intensify enforcement against travel to the United States undertaken primarily to obtain citizenship for a child.

This Alert addresses two interlocking legal regimes: Immigration law, which governs citizenship acquisition and recognition, visa issuance, admission and fraud or misrepresentation determinations; and health law, which governs emergency care, nondiscrimination, reimbursement, privacy, records and provider compliance. The Supreme Court has held that, apart from a few exceptions, children born in the United States to noncitizen parents who are unlawfully or temporarily present are citizens at birth. This is referred to as “birthright citizenship.” The Trump administration’s August 2026 executive actions nevertheless seek to restrict federal recognition of citizenship in specified circumstances and to intensify enforcement against travel to the United States undertaken primarily to obtain citizenship for a child. These executive actions do not suspend the constitutional rule or healthcare provider obligations, but they do create new considerations for families, travelers, providers and intermediaries concerning documentation, disclosure and agency review.

• What has not changed: The constitutional baseline for birthright citizenship recognized by the Supreme Court in United States v. Wong Kim Ark and reaffirmed in Trump v. Barbara, together with healthcare providers’ independent duties under the Emergency Medical Treatment and Labor Act (EMTALA), the Health Insurance Portability and Accountability Act (HIPAA), applicable nondiscrimination laws and state law.
• What has changed: Federal directives concerning citizenship documents, visa screening, admission, enforcement and review of certain commercial or surrogacy-related arrangements.
• What affected parties should do now: Identify which legal regime governs each issue, preserve accurate records, ensure consistent disclosures and coordinate legal guidance on immigration, health law, reproductive law, tax and private client needs when the facts overlap.

The Legal Baseline: Citizenship, Recognition, Travel and Care

The Citizenship Clause of the 14th Amendment provides that persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. The leading precedent, United States v. Wong Kim Ark, recognized citizenship at birth for a child born in the United States to noncitizen parents who were subject to U.S. law. Historically recognized exceptions have been narrow, including children of foreign diplomats and similar categories not fully subject to U.S. jurisdiction.

Four distinct questions should remain separate throughout any analysis of a birthright-citizenship matter following the August 2026 executive actions: (1) whether citizenship is acquired at birth under the 14th Amendment; (2) whether a federal agency will issue or accept documentation recognizing that citizenship; (3) whether a parent, surrogate or other traveler qualifies for a visa or admission to the United States; and (4) whether any statement or omission in a visa application, admission interview, citizenship filing or other submission constitutes fraud or willful misrepresentation. Likewise, a citizenship-related executive action does not displace a healthcare provider’s independent treatment, privacy, nondiscrimination, billing or recordkeeping obligations.

Executive Order 14160 and Trump v. Barbara

Against that constitutional backdrop, the Trump administration sought to narrow birthright citizenship through Executive Order 14160, issued on January 20, 2025. The order directed federal agencies to not recognize U.S. citizenship for certain children born in the United States to noncitizen parents who were unlawfully present or present in temporary nonimmigrant status. The order was challenged and ultimately reviewed by the Supreme Court in Trump v. Barbara.

In Barbara, the Supreme Court held that children born in the United States to parents who are unlawfully or temporarily present are “subject to the jurisdiction” of the United States and are therefore citizens at birth under the 14th Amendment. The Court did not eliminate the narrow historical exceptions to birthright citizenship, but it rejected the proposition that a parent’s temporary or unauthorized immigration status, standing alone, prevents a U.S.-born child from acquiring citizenship. The administration’s later actions must be read against that controlling holding.

The August 2026 Executive Actions

Executive Order 14418: Citizenship Recognition and Documentation

On August 6, 2026, the administration issued two orders that operate through different legal mechanisms. Executive Order 14418 addresses federal recognition and documentation of citizenship. Executive Order 14419 addresses visa issuance, admission and enforcement relating to travel to the United States for childbirth.

Executive Order 14418, “Continuing To Protect the Meaning and Value of American Citizenship,” states that federal agencies should not issue or accept documents recognizing U.S. citizenship for an individual when neither parent is a U.S. citizen and other specified circumstances apply. The order identifies categories involving certain children of “alien enemies”; certain children of foreign-government or international-organization employees; persons whose parents, according to the order, engaged in fraud or a “commercial transaction” to obtain birthright citizenship, including specified childbirth and surrogacy arrangements; and certain births in U.S. territories or territorial waters where federal law does not confer citizenship. These are positions taken by the executive order; their scope and enforceability remain subject to judicial review and agency interpretation.

Executive Order 14419: Visa Screening, Admission and Enforcement

Executive Order 14419, “Ending Birth Tourism,” directs the secretaries of State and Homeland Security to take steps to halt “birth tourism,” which the order defines as entry through a nonimmigrant visa for the purpose of giving birth in the United States, or facilitating such entry. The order’s characterization of particular conduct does not itself establish that every childbirth-related trip is impermissible or fraudulent.

In practical terms, the two orders operate through different mechanisms and affect different stages of the process. Executive Order 14418 concerns whether federal agencies will issue or accept documents recognizing U.S. citizenship for a child born in the United States—for example, a passport, Consular Report of Birth Abroad, or Social Security number—whereas Executive Order 14419 concerns whether a traveler qualifies for a visitor visa or admission to the United States and has accurately disclosed the purpose of travel at the consular interview or port of entry. Families may therefore encounter different documentation requests and forms of scrutiny depending on whether they are seeking citizenship documents for a child or immigration benefits for a parent or other traveler.

Current Status as of September 20, 2026

At-a-Glance Status
Authority	Current posture	Practical consequence
Executive Order 14418	Enforcement is preliminarily enjoined as to the certified class described below. The order is not finally resolved in every potential application.	Agencies may continue developing guidance but may not apply the challenged provisions to class members while the injunction remains in place.
Executive Order 14419	Existing visa and admission rules continue to apply.	Travel purpose, eligibility, truthful disclosures, payment arrangements and departure plans may receive heightened scrutiny.
Health-law requirements	EMTALA, HIPAA, applicable nondiscrimination rules, billing requirements and state law remain independently operative.	Providers should not delay required care or alter disclosure practices merely because citizenship or immigration issues may be present.

Executive Order 14418: Preliminary, Class-specific Relief

On September 2, 2026, the U.S. District Court for the District of Maryland entered a preliminary injunction in CASA, Inc. v. Trump, No. 8:25-cv-00201. The certified class was originally defined with reference to Executive Order 14160, the January 2025 order that Executive Order 14418 effectively continues, and consists of U.S.-born children who would have been effectively denied citizenship because, at the time of birth, their mother was unlawfully present or lawfully present in temporary status and their father was neither a U.S. citizen nor a lawful permanent resident. The injunction now restrains enforcement of Executive Order 14418 as to those class members.

At the preliminary-injunction stage, the court concluded that Executive Order 14418 is “almost certainly unconstitutional” as applied to that class because Barbara had already held that those children are citizens at birth. The court further observed that the order’s asserted exceptions do not fit within the narrow historical categories—such as children of foreign diplomats—that have been recognized as outside the scope of birthright citizenship. This is preliminary relief rather than a final merits judgment; it is class-specific and remains subject to appeal or further proceedings.

Executive Order 14419 and Existing Screening Rules

Executive Order 14419 concerning “birth tourism”, meanwhile, has not been enjoined, and existing visa and admission policy already permit consular and border officers to examine whether the primary purpose of travel is to obtain U.S. citizenship for a child by giving birth in the United States and whether the traveler has made accurate disclosures. The new order adds an enforcement directive – it does not convert every childbirth-related trip into fraud or make pregnancy a ground of ineligibility for a visa or inadmissibility to enter the United States.

Agency Implementation

The September 2, 2026, injunction prevents the Departments of State and Homeland Security, U.S. Citizenship and Immigration Services, the Social Security Administration and other federal agencies from applying the challenged provisions of Executive Order 14418 to the certified class members while litigation proceeds. The Department of Homeland Security (“DHS”) has also issued an interim final rule, with a stated effective date of September 4, 2026, that would require certain U.S.-born children of foreign government employees—a category the administration contends falls outside birthright citizenship—to register as lawful permanent residents rather than claim citizenship. The administration has acknowledged, however, that this rule will not take effect while the CASA injunction remains in place. Because agencies may continue to develop guidance, affected parties —including families seeking citizenship documents and providers responding to agency requests —should verify the current legal requirements at the time of any immigration filing, and should ensure that any disclosure to a federal agency reflects the operative legal landscape.

Immigration-Law Implications for Families and Travelers

The visitor-visa framework predates the August 2026 orders. Under 22 C.F.R. § 41.31(b)(2), a B-1/B-2 visitor-visa applicant whom a consular officer has reason to believe will give birth during the proposed U.S. stay is presumed to be traveling primarily to obtain U.S. citizenship for the child. That purpose is not a permissible primary basis for B classification. The Department of State (“DOS”) implements the regulation through the Foreign Affairs Manual 9 FAM 402.2-4(A)(8), Travel to Give Birth in the United States.

The presumption is rebuttable. An applicant may establish a different bona fide primary purpose, including qualifying medical treatment for a pregnancy. Consular guidance instructs officers not to ask whether an applicant is pregnant without a specific, articulable reason to believe that the applicant is pregnant and intends to give birth in the United States. Pregnancy alone does not make a person ineligible for a visa or inadmissible.

An applicant seeking B status for medical treatment should be prepared to document:

• Purpose: The medical reason for treatment in the United States and why treatment is sought there;
• Arrangements: Confirmation from an identified physician or facility;
• Timing and cost: The anticipated duration and cost of treatment, delivery and recovery;
• Funding: The ability to pay medical, living and travel expenses without unauthorized public assistance; and
• Departure: A credible plan to leave before the authorized stay expires.

Visa Refusal Is Not the Same as Misrepresentation

A visa applicant whose primary purpose is obtaining citizenship for a child may be ineligible for B-1/B-2 classification or refused under INA § 214(b). That said, fraud or willful misrepresentation is a separate determination under INA § 212(a)(6)(C)(i). Inconsistent statements, concealed financial arrangements or false descriptions of a trip may support a finding of fraud or willful misrepresentation, and can affect later immigration adjudications. Executive Order 14419 strengthens enforcement attention; it does not establish fraud merely because childbirth occurs during a U.S. visit. The critical distinction for practitioners and travelers is therefore between visa ineligibility—which may be overcome in a future application—and a fraud or misrepresentation finding, which can trigger a permanent or long-term bar to admission.

Cross-Border Surrogacy: Where Immigration and Health Law Converge

Cross-border surrogacy requires integrated analysis of both immigration and health law because a single surrogacy arrangement may trigger different and distinct rules for each of the various involved parties, including the child, the intended parents, the surrogate, the healthcare providers, the fertility center and any intermediary. The relevant legal issues may include citizenship acquisition and documentation for the child; the surrogate’s visa eligibility or admissibility; intended-parent immigration status; parentage orders and birth records; medical decision-making authority; payment and insurance arrangements; privacy obligations; and the stated purpose of U.S. travel. Each issue must be analyzed under its own governing standard, and a determination in one context does not necessarily control the outcome in another.

Executive Order 14418’s reference to fraud or a “commercial transaction” raises unresolved questions for lawful compensation, medical services, agency fees, escrow arrangements and customary surrogacy practices. The order provides that federal agencies should not recognize citizenship when the parents “sought to obtain birthright citizenship for such person through fraud or a commercial transaction, including, but not limited to, obtaining or facilitating commercial ‘birth tourism’ or ‘childbirth tourism’ or commercial surrogacy.” Courts and agencies have not yet resolved whether this language reaches compensated surrogacy arrangements that are lawful under state law or how it interacts with legitimate medical, family-building and parentage purposes. Parties should therefore document the arrangement’s lawful purposes without characterizing payment or travel in a manner that is incomplete or inconsistent with underlying records. Coordinated immigration, reproductive-law, health-law and private-client review can reduce conflicting submissions and later disputes.

Health Law and Compliance Implications for Providers and Intermediaries

The executive actions do not suspend the independent legal duties of hospitals, healthcare providers, fertility centers or surrogacy intermediaries. Immigration questions may affect travel, citizenship documentation, coverage or later adjudications, while health law continues to govern access to care, emergency treatment, nondiscrimination, reimbursement, privacy, records and operational compliance. Organizations that may need to address both bodies of law include hospitals and birthing centers that provide labor and delivery services; fertility clinics and IVF centers; surrogacy agencies and escrow companies; health insurers and third-party administrators; and state or local vital-records offices that issue birth certificates. Each should address immigration and health law considerations without allowing one to displace the other.

The preceding sections addressed how immigration law determines citizenship acquisition, federal documentation, visa eligibility, and fraud or misrepresentation. Those determinations may affect a patient’s long-term immigration status, travel options and documentary proof of citizenship, but they do not displace the separate obligations that health law imposes on providers. The analysis that follows examines how hospitals, fertility centers, surrogacy agencies and other healthcare intermediaries must continue to meet their independent duties under EMTALA, HIPAA, nondiscrimination rules and state law, even when a patient or arrangement raises citizenship-related questions. Understanding both bodies of law is essential because affected families may encounter parallel inquiries—one concerning immigration status, and another concerning medical care, billing, privacy and records—that require distinct responses and coordinated legal guidance.

Provider Obligations Under Federal and State Law

Provide required emergency care without delay. EMTALA, 42 U.S.C. § 1395dd, requires Medicare-participating hospitals with dedicated emergency departments to screen any individual who requests examination or treatment and, when an emergency medical condition exists, to stabilize the patient or arrange an appropriate transfer. Active labor is treated as an emergency medical condition. These duties apply without regard to citizenship, immigration status or ability to pay.

EMTALA’s duties extend to the hospital. A hospital should not condition emergency screening or stabilizing treatment on proof of citizenship, lawful immigration status, insurance or ability to pay, and should not delay care to investigate those matters. Section 1395dd(h) specifically addresses delaying examination or treatment to inquire about payment or insurance. Triage and registration procedures should therefore separate required emergency care from later coverage, billing, eligibility and immigration-related questions.

State hospital licensing and nondiscrimination laws may impose parallel or broader obligations. Those requirements remain in effect notwithstanding the executive orders. Providers should not revise screening, treatment, admission or discharge practices solely because citizenship-related policies are changing.

Insurance Coverage, Billing and Financial Assistance

Separate treatment obligations from reimbursement questions. A patient’s citizenship or immigration status may affect eligibility for some insurance programs, but it does not eliminate duties under EMTALA or applicable state law. Federal Medicaid reimbursement may be available for qualifying emergency services, including labor and delivery, under 42 U.S.C. § 1396b(v). Billing, coverage and financial-assistance review should follow—not delay—required care.

For a child who acquires U.S. citizenship at birth, Medicaid and Children’s Health Insurance Program eligibility is assessed independently of the parents’ immigration status, subject to ordinary income, residency and program requirements. Documentation or enrollment questions may nevertheless arise as agencies implement new citizenship policies. Providers should route those issues to financial-assistance personnel, benefits administrators and counsel rather than delaying medically required care.

Section 1557 of the Affordable Care Act, 42 U.S.C. § 18116, prohibits discrimination in covered health programs or activities on specified grounds, including national origin. Although citizenship or immigration status is not independently listed in the statute, providers should review any new policy for potentially discriminatory implementation and ensure that similarly situated patients receive consistent treatment.

Medical Records and Documentation in Immigration and Citizenship Proceedings

Escalate records requests for legal review. Medical and birth records may become relevant to citizenship or immigration proceedings. Before disclosing information, providers should assess the form of the request, the requesting entity’s authority, the records sought and the applicable HIPAA and state-law requirements.

HIPAA permits disclosure of protected health information in response to a court or administrative-tribunal order, subject to the order’s terms, 45 C.F.R. § 164.512(e)(1)(i). A subpoena or discovery request not accompanied by an order requires a separate analysis, which may include satisfactory assurances of notice to the individual or a qualified protective order, 45 C.F.R. § 164.512(e)(1)(ii). Providers should not assume that an agency letter, informal request, subpoena and court order carry the same authority. A written escalation process should identify who verifies authority, scope, minimum-necessary requirements, applicable state law and approval before disclosure.

Maintain accurate and consistent records. Records relating to labor, delivery and newborn care may have evidentiary significance when a family later establishes the timing and circumstances of birth. Although state or local agencies typically issue birth certificates, hospital records may serve as supporting evidence. Clear and internally consistent documentation can reduce later disputes.

Compliance Considerations for Fertility Centers, Surrogacy Agencies and Other Intermediaries

For fertility centers, surrogacy agencies and other intermediaries, the unresolved “commercial transaction” language heightens the importance of ordinary compliance controls. The legal question is not whether every compensated arrangement is impermissible; the question is how the administration, agencies and courts will interpret the order in particular factual settings.

Organizations should compare contracts, marketing materials, intake forms, referral practices, billing records, escrow documents, medical letters, visa submissions, parentage filings and client communications for inconsistent descriptions of the arrangement. Materials should not promise citizenship, encourage travel primarily to obtain it, or obscure legitimate medical, family-building and parentage purposes.

Ordinary course records may later be reviewed in adjustment of status, naturalization, citizenship-documentation, public-charge, fraud, misrepresentation, billing, privacy or coverage matters. Providers and intermediaries should designate an escalation team, identify the trigger for immigration and health-law review, preserve relevant records and monitor litigation and agency guidance before making material changes to programs or client-facing practices.

Related Long-Term Immigration, Citizenship and Tax Planning

The current controversy presents an important planning contrast. Many international families value the future education, employment, travel and immigration benefits that U.S. citizenship may provide to a child. Yet a substantial number of U.S. citizens and long-term lawful permanent residents living abroad later choose to relinquish citizenship or terminate permanent resident status after weighing the legal, tax, reporting and practical consequences of maintaining those ties.

The IRS’s quarterly expatriation lists provide context for that reality. The published annual total number of individuals who relinquished U.S. citizenship and long-term residents who ended U.S. resident status were approximately 2,426 names in 2021, 3,816 in 2022, 3,260 in 2023, 4,819 in 2024 and 4,892 in 2025; the first two quarterly lists for 2026 contained 3,243 names. This may not constitute a complete or contemporaneous measure of all relinquishments, and goes to evidence that at least several thousand individuals each year formally alter or end significant legal citizenship or residency ties with the United States.

The figures do not establish why any particular person expatriated, and relinquishment is distinct from the present controversy over citizenship acquired at birth. They are relevant, however, because they provide a practical counterpoint: citizenship acquired at birth does not necessarily correspond to lifelong residence in the United States or a permanent intention to maintain U.S. legal and tax ties. Some individuals who acquired U.S. citizenship at birth—including some who have spent most of their lives abroad—may later decide that the burdens associated with citizenship outweigh its benefits.

Relinquishing U.S. citizenship and surrendering lawful permanent resident status are legally distinct steps with different immigration and tax consequences. Lawful permanent residents considering abandonment of residence may review our prior Alert, “Surrendering Your Green Card – Tax and Immigration Issues to Consider.” Any individual considering a formal change in citizenship or immigration status should obtain individualized immigration and tax advice before acting.

Coordinated Action Checklist

The legal framework remains fact-specific and continues to develop. The following measures help identify issues early while preserving the distinction between immigration determinations and health-law duties. 

Recommendations for Families and Travelers

• Identify the primary purpose of travel: Prepare contemporaneous evidence of medical need, provider arrangements, funding, timing and the plan to depart.
• Run a consistency review before filing: Compare visa applications, prior immigration records, medical letters, surrogacy agreements, payment records, insurance information, parentage documents and citizenship submissions.
• Preserve supporting records: Retain birth, medical, immigration, payment, insurance and parentage materials that may support later applications or respond to agency questions.
• Escalate material inconsistencies: Obtain immigration and health-law review before submitting a statement that differs from prior records or from the documented purpose of travel or treatment.
• Coordinate disciplines: Involve reproductive law, health law, immigration, tax and private client counsel when more than one regime governs the same arrangement.

Recommendations for Providers and Intermediaries

• Keep care and immigration screening separate: Confirm that triage, emergency treatment, admission, discharge, billing and financial-assistance workflows do not delay required care.
• Audit client-facing and operational materials: Compare contracts, marketing, intake forms, referral practices, medical letters, billing records and communications for promises of citizenship or inconsistent descriptions.
• Create a record-request protocol: Route immigration- or citizenship-related requests to designated privacy and legal reviewers who verify authority, scope, state law and minimum-necessary requirements.
• Define escalation triggers: Require coordinated immigration and health-law review when travel purpose, compensation, insurance, parentage, records disclosure or citizenship documentation raises a material issue.
• Monitor changes before altering programs: Identify responsibility for tracking litigation, agency guidance and implementation dates and require approval before changing patient or client practices.

For More Information

If you have any questions about this Alert, please contact M. Alejandra Vargas, Guilherme Massetti, Benjamin McDermott, Olivia Scofield or any attorney in our Employment, Labor, Benefits and Immigration Practice Group. For health law questions, please contact Erin M. Duffy, Arti Fotedar or any attorney in our Health Law Practice Group. You may also contact the attorney in the firm with whom you regularly work.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.