It might affect the foreign-born children of some service members when it takes effect on Oct. 29.
Children born to — or adopted by — some U.S. service members overseas are no longer automatically considered U.S. residents or entitled to U.S. citizenship, according to the policy.
“This policy update does not affect anyone who is born a U.S. citizen, period," Ken Cuccinelli, acting director of U.S. Citizenship and Immigrant Services, said in a statement.
“This only affects children who were born outside the United States and were not U.S. citizens.”
Examples of that situation include:
- A U.S. service member and partner, or a dual-military couple, stationed in South Korea, who adopt a local South Korean child; or,
- A non-citizen U.S. service member and partner, or non-citizen dual-military couple, who have a child while serving in Germany.
In either case, the children would no longer be considered residents (based on their parents’ established U.S. residency) and must apply for citizenship, rather than have it guaranteed, as it would have been guaranteed in the past.
The policy won’t affect children born to U.S. citizens serving abroad. Those children are still entitled to automatic citizenship, officials said.
“This does NOT impact birthright citizenship,” Cuccinelli said.
Birthright citizenship is guaranteed automatically to children of U.S. citizens living abroad who have established residency in the U.S.: “This policy update does not deny citizenship to the children of U.S. government employees or members of the military born abroad,” the statement indicated.
But the new policy places an unfair burden on children born to non-citizen service members, according to a spokesman for a D.C.-based federal employment and military law firm.
“If both parents are U.S. citizens, their children have derivative citizenship regardless, so this is a penalty placed upon those who would serve their country and who do not have a say where they are stationed,” Shaun May of the Federal Practice Groups told Military Times in a statement.
“They serve at the direction and pleasure of the president.”
According to the new policy, any government employee or service member working abroad can file for citizenship for their foreign-born children, rather than receive automatic citizenship, as they would have under previous policy.
“This policy aligns USCIS’ process with the Department of State’s procedure, that’s it,” Cuccinelli said.
The policy also raises a question for children born to non-U.S. citizens who serve in the military, and may be stationed abroad through no fault of their own.
“This country cannot place them in harm’s way and then punish their children and families by requiring them to undertake a years-long adjudication from an agency that is already over-tasked,” May said.
It’s unclear how many individuals this change will affect.
A Pentagon spokeswoman said in a statement to The Hill that the estimated impact of the change is “small” but that the Pentagon is working to provide further clarity for military families.
“DoD has been working closely with our colleagues as DHS/USCIS regarding recent policy changes and understands the estimated impact of this particular change is small. However, we are committed to ensuring affected families are provided the appropriate information, resources, and support during this transition,” Pentagon spokeswoman Air Force Lt. Col. Carla Gleason said.
A MAVNI recruit overstayed his visa awaiting his background check. Then the Defense Department rejected his enlistment.
The policy move could be another blow to non-citizen U.S. service members, who have been targeted in recent months by other Trump administration immigration policies. Notably, the move to suspend deferred action and parole-in-place.
Previously, non-citizen U.S. service members and veterans could apply for these exemptions to give them more time to sort out their immigration statuses, but in June they were rolled back.
Many of these service members joined the military as part of the Military Accessions Vital to the National Interest program, which was suspended in late 2016. Now, they are subject to deportation in some cases.
Further, a Government Accountability Office report released in June found that Immigration and Customs Enforcement agents had not always followed a policy requiring them to consider military service when initiating a deportation case.
That’s because many of them weren’t asking about service in interviews.