On June 30th, the Supreme Court struck down the president's birthright citizenship order 6–3 in Trump v. Barbara, with Chief Justice Roberts writing that children born to parents unlawfully or temporarily present here are citizens at birth. Six weeks later, two new executive orders arrived — one narrowing who qualifies for birthright citizenship, one titled "Ending Birth Tourism."

Host Lauren Clarke is joined by Jack Chin, the Edward L. Barrett Jr. Distinguished Professor of Law at UC Davis and one of the country's leading scholars on the 14th Amendment's Citizenship Clause, to pull the two orders apart. Why the citizenship order likely fails where it stretches the "closed set" of exceptions the Court recognized. Why the birth tourism order may survive unchallenged — and why it's still, in Chin's words, a solution in search of a problem, aimed at an estimated 20,000–26,000 births out of 3.6 million a year.

Plus: what this means at the consulate for pregnant applicants and women of childbearing age who aren't birth tourists at all, where consular non-reviewability leaves them, and how to build a visa package that heads the question off.

First, EIG partner Rob Taylor covers the week's news: a proposal to eliminate the 60-day grace period, USCIS denials without RFEs, mandatory e-filing, a proposed N-400 fee hike, 175,000+ visa revocations since January 2025, and stepped-up H-1B enforcement.

Resource Links:

https://www.whitehouse.gov/presidential-actions/2026/08/ending-birth-tourism/

https://www.whitehouse.gov/presidential-actions/2026/08/continuing-to-protect-the-meaning-and-value-of-american-citizenship/

GUEST: Professor Jack Chin, UC Davis School of Law

HOST: Lauren Clarke

NEWS NERD: Rob Taylor

PRODUCER: Adam Belmar

Disclaimer: This episode is intended for educational and informational purposes. Views and opinions expressed by guests are their own and do not necessarily reflect the views of Erickson Immigration Group or its attorneys.

Welcome to Immigration Nerds. This podcast is for everyone seeking the details, context, and facts behind the banner headlines on immigration. It's the podcast that gives you the latest on immigration policy and politics and the real world impacts on the people and businesses that make our world turn. If you believe immigration makes us all better, then this is the podcast for you. Brought to you by the nerds at Ericsson Immigration Group, guiding clients and their employees through the complex immigration system for over 30 years.

Hello, immigration nerds. I'm Lauren Clarke, managing attorney at Erickson Immigration Group. I am a fellow nerd and immigrant and host of this amazing podcast. On every episode, we're joined by the smartest nerds in the know as we cover trends in business, culture, technology, and politics at the intersection of global immigration. Today, we are talking about citizenship, specifically about two executive orders signed on August 6th, and about what happens when the executive branch loses at the Supreme Court and then tries a different route to the same destination. Here's the background. Last year, the president issued an executive order that would have ended automatic citizenship for children born in the United States to certain non-citizen parents. On June 30th of this year, the Supreme Court struck it down, six to three in Trump verse Barbara. Chief Justice Roberts wrote that children born of parents unlawfully or temporarily present in the United States are citizens at birth under the Constitution.

And that is about as direct as the court gets. However, six weeks later, we have two more orders. The first narrows who qualifies for birthright citizenship, children of certain foreign government employees, of people designated alien enemies, and of parents said to have used fraud to obtain citizenship among others. The second is called ending birth tourism, and that's where we're spending most of our time today. It directs state and DHS to deny visas to people suspected of traveling here to give birth, to revoke travel authorization, and to impose entry bans. One thing to flag here before we get into the law asked how many people this involves. The president said hundreds of thousands. The most commonly cited estimate from the Center for Immigration Studies, a group that advocates for stricter limits is 20 to 26,000 births a year out of roughly 3.6 million. An oral argument, the Solicitor General was asked the same question and said, "No one knows for sure." Writing in the Atlantic last week, David Graham called this a bulldozer for a job that calls for a small mallet.

These are fraud is already illegal and the Justice Department has prosecuted birth tourism operations under existing law. So today, two things, whether the legal foundation under these orders is any sturdier than the one the court already rejected in June. And if it isn't, why go this route? And what it actually means at the consulate for people who are not birth tourists at all, but who are pregnant or of childbearing age and applying to renew a non-immigrant visa. But first, let's get everyone up to date on the important immigration news. And for that, of course, we're returning to our news nerd in chief, Ericsson Immigration Group partner, Rob Taylor.

Hey, Lauren.

Hey, Rob. What is at the top of the newsfeed today?

Sure. So some weeks we have a lot to cover. Some weeks we have less. I think this week we have quite a bit, so I hope our listeners will bear with me as they kind of touch on a number of updates that include some significant proposed changes that will affect employers who sponsor foreign nationals. It will affect foreign nationals who are on work visas, international students, naturalization applicants, and visa processing at the consulate. So there's quite a bit. We'll go ahead and start with what may prove to probably be the most significant employer-related development is the Department of Homeland Security is reviewing a proposal that could eliminate the current discretionary 60-day grace period available to many temporary workers after employment ends. So according to reports, this proposal could affect several key categories like the H1B, the L1, the O1, TN, E3, really anyone who is on a work visa.

So for employers, this would really represent a substantial shift in the workforce planning. Today, many foreign nationals rely on the grace period to transition to a new employer or to change status or even make arrangements following a layoff or restructuring. So if this proposal moves forward, workers may have significantly less flexibility after their employment ends with regards to their options to stay in the US. So at this point, this is just a proposal. It's under review, but we'll be keeping a close eye on it. And kind of along those lines of what we're seeing with just the tightening of immigration regulations, USCIS recently issued guidance reinforcing officers' discretion to deny certain immigration filings without first issuing a request for evidence referred to oftentimes as RFE. Also, sometimes it can be annoyed or notice of intent to deny. So what this means practically is that employers and applicants should really expect kind of increased scrutiny of initial filings and should really provide as much evidence and information upfront in order to get a petition approved.

So historically where someone might've gotten an RFE, if there's not enough evidence there, USCIS is now saying they can just deny the case outright, which is really a significant shift in how they've processed and handled applications in the past. And again, puts the foreign national at risk of getting a denial, which depending upon the circumstances, could mean they might fall out of status in the US. And even if not that, still would leave a mark on their case with regards to a denial on their record. So very important update that could have real significant impact on individuals applying for first-time applicants or even renewals. Along the lines with USCIS, they also announced recently that they are expanding their electronic filing initiative. So this rule would essentially allow USCIS to require electronic filing for benefit requests that have already been made available online for a sufficient period of time.

The agency will generally provide advanced notice before making it mandatory that applications be filed electronically. But this is, again, another significant shift in how they're accepting and processing paperwork. Historically, all applications have been filed via paper. And so these new online filings change the process, change how things will be handled, change how things will be prepared. So I think modernization at a high level is good. The hope is just that USCIS will give sufficient notice to applicants before they make it mandatory as it will be a significant change in the process. Moving on, President Trump signed a new executive order aimed at restricting certain birthright citizenship claims and addressing what the administration describes as birth tourism. So I know you're going to talk about this in depth today just to give our listeners a preview. The order directs federal agencies to take additional steps in visa adjudication and enforcement activities related to individuals who may be coming to the US to essentially have a child here that could then benefit from birthright citizenship.

So I'll leave this to you to cover in more detail, but it is definitely an interesting situation that will probably find itself in the courts again. Not stopping there though as it relates to citizenship. The Department of Homeland Security did also propose a significant increase in the naturalization filing fees. So under this proposal, the filing fee for the N400, which is what's filed in order to apply for citizenship, would increase substantially for both either whether it's a paper or online application. And this is really a trend that we're seeing with USCIS of increased fees. Part of it is the government's positioning that the cost of doing this work is increasing, but also it becomes more burdensome for the applicant who has to pay a higher fee in order to receive a benefit. So individuals who are lawful permanent residents and eligible for citizenship may want to consider applying for it if it's something that was kind of on their roadmap sooner than later to potentially avoid these increased fees.

And then lastly to items related more so to immigration compliance and enforcement. The Department of State recently announced that it's revoked more than 175,000 visas since January of 2025. So according to the agency, the revocations have been connected to criminal activity, to fraud, national security, other factors, which I'm not really sure what that means. But at a high level, I think we've continued to see very increased scrutiny of individuals who might have criminal convictions, which I think the government is rightful to do so. But in that we've also seen a lot of delays in processing times. We've also seen delays for individuals who don't have criminal convictions, but additional background checks are needed. And then we've also just seen less visa appointments become available. So at the end of the day, the Department of State is really focused on ensuring that only people who should be in the US are here, and that's kind of creating a lot of churn across the board for even individuals who should be, but are facing delays and backlogs.

So what this really emphasizes is for companies that have mobile international workforces, there's just a lot of planning that needs to go into travel. And individuals who are on visas in the US, international travel abroad really needs to be considered and reviewed closely because there could be significant delays in their ability to get back into the US. And then finally, with regards to federal agencies, we have continued to see an increased focus in H1B compliance. So there have been quite a lot of reports recently of employers who have been debarred from the H1B program, as well as organizations who are seen as woeful violators who have been fined. This is pretty consistent with what we expected and what we'll probably continue to see from the administration of increased enforcement activity, really focusing on ensuring that individuals are working where they're supposed to be, doing what they're supposed to be doing, and getting paid what they're supposed to be paid, particularly those on H-1Bs.

And so it's really more important than ever that employers have a strong grasp on their H-1B population and compliance and that ensuring that they're taking all the steps that are necessary to ensure folks are, again, doing what they're supposed to be doing where they're supposed to be doing it.

As always, thank you, Rob.

Thanks, Lyon.

And now for a conversation about birthright citizenship and birth tourism. My guest today is one of the leading scholars in the country on the citizenship clause of the 14th Amendment. Jack Chin is the Edward L. Barrett, Junior Distinguished Professor of Law and Director of the Clinical Legal Education at UC Davis School of Law, where he teaches and writes on immigration law, criminal procedure, and race and the law. Last year, he filed an amicus brief in the Supreme Court with Harvard historian Erica Lee and elderly law professor, Paul Finkelman, arguing that birthright citizenship is a constitutional right and not something the executive branch can adjust. Jack, welcome to the Immigration Nerds Podcast.

Thank you. Pleasure to be here.

Jack, I think it's probably best to kind of set the stage and really start at the beginning. We have had two executive orders signed on the same day, and really what most coverage has done is treated them as a single action. Can you essentially separate them for us and explain what each one is actually trying to do?

Yes. So one executive order identifies additional categories of people who, even if born in the United States, are not going to be regarded as US citizens. And this is obviously designed to set up another test case of the scope of the citizenship clause for the Supreme Court to review. And one of the categories in that executive order of people who were not going to be treated as US citizens by birth are children of parents who came to the United States for purposes of having a US citizen child, commonly known as birth tourism. The second executive order basically said that additional steps are going to be taken by the administration and the departments of the government to prevent immigrants from coming to the United States to give birth, to end so-called birth tourism, or to cut it back anyway, to take further steps to cut it back.

So two things going on. One, reduction of citizenship. Two, restriction of birth tourism. And the overlap is that the first executive order purports to deny citizenship to children of parents who come here for the purpose of having a US citizen child.

And so I guess having the understanding and this analysis of what the goals are, when we have a look at them side by side, what's the real legal justification? And I guess is the legal grounds on which they have been built upon strong enough to withstand the scrutiny?

Well, the restriction of birth tourism is something that was originally started in the first Trump administration. And basically the first Trump administration added a regulation that said that people coming to the United States to give birth would be denied tourist visas and business visas, B1 and B2 visas. So in general, somebody can come to the United States for pleasure, for tourism, for medical treatment, to watch shows on Broadway or visit the national parks, whatever they want to do, but at least whatever legal conduct you want to engage in. But basically the 2020 changes said that if you're coming to the United States to give birth in the United States so that your child can be a US citizen, that's grounds for denial of a B1 or B2 visa. And the second executive order basically beefs up enforcement and investigation and punishment and denial and revocation of visas based on that existing principle.

And I have seen no lawsuits challenging the basic idea that birth tourism is impermissible. And so I think that executive order, at least for the moment, has a decent chance of being either not challenged at all or upheld because basically it's a policy decision to vigorously enforce existing law, which the president is allowed to do. The first executive order, which denies birthright citizenship to a broad category of additional people has already been challenged. And I think it's unconstitutional, broadly unconstitutional. The structure of it is to deny citizenship to as many people as possible by expansively reading the categories that the Supreme Court has already recognized of people who were born in the United States who are not citizens. So to give you an example, the Supreme Court for centuries has recognized that children of accredited diplomats born in this country are not citizens. And the Supreme Court in the June birthright citizenship decision, Trump versus Barbara, didn't question that, recognized that, upheld it.

If foreign diplomats come to the United States, they have diplomatic immunity, any children of theirs have diplomatic immunity. And so a child of theirs born in the United States will not be a US citizen. That's uncontroversial. What the new executive order does is says, well, in addition to that, employees of a foreign government, foreign government employees who don't have diplomatic immunity, employees of international organizations, if they have children here, those children will not be US citizens. So it's a dramatic expansion of a category that already exists. Another category that already exists is children of enemy troops and hostile occupation. So when the British came to the United States and occupied certain parts of the United States in 1812, if they had children here, those children would not be US citizens. Okay, that's a widely accepted, uncontroversial exception, hasn't had a lot of practical impact in many years, but it's a widely recognized exception to the general principle of birthright citizenship.

What the executive order does is it says all children of enemy aliens, including some foreign terrorist organizations and other groups, their children are not going to be regarded as US citizens. And the problem is, there's a number of problems with this. One is who's an enemy alien given that we're not at war with anybody? Is there anybody who's an enemy alien? And the second thing is that this executive order, the August 2026 executive order, unlike the January 2025 executive order, which was tested in the Trump versus Barbara case, doesn't say that it's inapplicable to children of US citizens or lawful permanent residents. And it doesn't say that it's prospective only. And so what this would mean is, for example, possibly that there were enemy aliens from 1941 to 1945, but the children of German, Japanese and Italian immigrants in the United States born in the United States were always treated as US citizens.

This executive order, if valid, would seem to say, well, maybe they were citizens then, but now we're going to say they're not citizens. And so some people born in the United States in the 1940s and other people born in the United States since then who were always thought to be US citizens would be retroactively stripped of their US citizenship if this executive order is valid and if it means what it seems to say. I don't think that the president can do that. I think that Trump versus Barbara said that the exceptions to birthright citizenship that it recognized and that previous court decisions such as United States versus Wong K. Mark in 1898 recognized were a closed set. Only those people who were traditionally denied US citizenship, children of accredited diplomats, children of enemy troops and hostile occupation, an obsolete category, children of members of native nations born on a reservation were historically not regarded as US citizens, but they were granted US citizenship as a group in 1924.

So that's ancient history, even assuming that that exception still applies. So the Supreme Court in Trump versus Barbara said that these exceptions were a closed set. No new exceptions would be recognized or could be recognized without a constitutional amendment. So I don't think that the new executive order is going to stand up. I think it's an effort to deny citizenship to groups of people that the administration would like to deny citizenship to, but it's inconsistent with the Constitution as interpreted by the Supreme Court.

Right. And I guess that's the exact question that many people, whether you are an immigration practitioner or in the immigration space, or even just a layperson reading the headlines where we have had this decision in Trump verse Barbara, where a line was clearly drawn, these categories were clearly identified as a closed set. I guess it begs two questions, which is A, how is the administration able to essentially submit what seems like a duplicative executive order? And how really is the government trying to distinguish it from what it was trying to obtain with the original executive order?

It's a great question. There's nothing in the Constitution or laws that prevents a president from issuing a patently unconstitutional executive order, which I think is what has happened here. The president can do what he wants and then it will be challenged in court as it has been, and the courts will make a ruling. And I think the ruling in this case is going to be that the executive order is entirely unconstitutional. We don't know how the administration is trying to distinguish it because we haven't seen a response from them, from the Department of Justice that specifically explains how this would be defended. But I think we can anticipate that what they would say is, look, there's a difference between the first executive order and the second executive order. The second executive order is much narrower and more specific. And what the second executive order is trying to do is define the scope of the exceptions that the Supreme Court recognized in Trump versus Barbara and in the United States versus Wong Kim Harf.

And all the executive order is doing is saying, we want to read these exceptions expansively and deny birthright citizenship as broadly as possible. And that's perfectly legitimate to say that the exceptions have a broader scope in our view than other people might think they do. That's going to be their argument. And it's true that the second executive order is much more focused. It's not denying birthright citizenship to all children of undocumented people or all children of temporary migrants. It's denying birthright citizenship to admittedly much narrower classes of people. And those classes are in some instances similar to the classes that the Supreme Court has recognized may be denied birthright citizenship. Employees of foreign governments are kind of similar in some ways to diplomats of foreign governments. And alien enemies are in some ways similar to enemy troops and hostile occupation. The problem is that the Supreme Court has given a reason that foreign diplomats, for example, are not capable of transmitting birthright citizenship to their children.

And the reason is that foreign diplomats, accredited diplomats have diplomatic immunity. And the magic words in the Constitution that give somebody birthright citizenship under the Citizenship Clause of the 14th Amendment, Citizenship Clause of the 14th Amendment applies to all persons born or naturalized in the United States and subject to the jurisdiction thereof. And the Supreme Court has said that subject to the jurisdiction thereof means subject to the power thereof, the legislative power, the juridicial power. And foreign diplomats are not subject to the jurisdiction of the United States in that sense because the United States has agreed not to impose criminal or civil sanctions on them just as American diplomats in foreign countries are not subject to the civil and criminal jurisdiction of those foreign countries. That's part of the deal of international diplomacy, that diplomats go to foreign lands and they represent their country and they're given certain protections in order to facilitate the process of international diplomacy.

And that is simply not true of, let's say, a person who works at a foreign embassy, but doesn't have diplomatic immunity, even if they're not a US citizen. And so somebody who's a janitor or a clerical staff member or even a professional staff member of a foreign embassy, if they're not on the list of accredited diplomats, I believe it's called the blue list, if they're not on the blue list and they drive drunk or they pick somebody's pocket, then any state, federal, or a local police department can slap the handcuffs on them and put them into the criminal process and off they go to jail. The same is true of an enemy alien. During World War II, a German, Japanese or Italian citizen who was in the United States, they had no protection, no diplomatic protection from American law, and they had no ability, as would enemy troops in hostile occupation, to throw off the power of American law.

And any state, federal, or local officer could arrest them for a crime. Any person in the United States could sue them for a contract breach or tort breach, and they would be fully subject to American law just as would a citizen or any other non-citizen whose country was not at war with the United States. And so the reason that enemy troops and hostile occupation and foreign diplomats are treated as not subject to the jurisdiction of the United States doesn't apply to these new categories that the administration would like to deny citizenship to. They are in some ways similar to the categories that the court has recognized, but not in the operative way, not in the key way, which is that they're not subject to US law. They are subject to US law. The birth tourism category is understandable. And so there is an idea in American law that people should not be able to benefit from their own wrong.

And so for example, if a person kills another person, then the killer cannot inherit from that person because even if there's no statute prohibiting it, historically courts have said as a matter of common law, we are not going to allow a person to generate an inheritance or an insurance payout by a killing. That is bad public policy. We're not going to accept it. And of course, there's a general principle of restitution that if somebody commits a crime and makes a lot of money, they're going to have to give the money back because under the same idea that you shouldn't benefit from your own wrong. And the administration will argue, and I think they have argued in other contexts, that this is an appropriate circumstance for application of that rule, that somebody shouldn't be able to come to the United States unlawfully and benefit by transmitting US citizenship to their child.

The problem with that is that the analogy doesn't quite work because the child born in the United States hasn't done anything wrong. They have committed no misconduct that warrants some sort of correction, A, and B, to some extent, the argument proves too much because the decision in Trump versus Barbara and other Supreme Court decisions have said that people in the United States unlawfully nevertheless can give birth to children who will be birthright citizens. The children are subject to the jurisdiction of the United States if they're born here, regardless of the status of their parents. And the thing about that is that many, most, or almost all undocumented people in the United States come to the United States to generate a better life for their children. And to some extent it's for work. There might be other reasons in some cases, but for the most part, it is to benefit themselves and their children.

And so if we were to say the fact that you do something to benefit your children means we're going to punish the children for it, then Trump versus Barbara couldn't have come out the same way because Trump versus Barbara very clearly held that once again, the exceptions that I've talked Talked about are a closed set. No new ones can be added and children of undocumented people or people who came here in violation of law or people who overstayed their visas and remained here in violation of law aren't among the people who can be denied US citizenship. So we can predict what the arguments of the administration are going to be, but they're arguments that have already been considered and rejected in Trump versus Barbara.

I think that leads to an interesting question, particularly when we do look at the birth tourism aspect of it, as you so beautifully outlined for our listeners, and I think as was clearly answered by the Chief Justice in the June decision that children born to parents unlawfully or temporarily present in the United States are citizens at birth. And logically, someone who arrives on a visitor visa and potentially any other visa and has a baby here is by definition temporarily present. Does that mean that the strategy has potentially changed from creating a new class or trying to drive them into these classes that have been accepted as not being citizens and really switching the strategy to become essentially stopping the person from getting here in the first place?

I think that's right, but I think that's always been the strategy. I think a lot of the things that the administration are doing are for deterrence purposes. Everything from restrictions on student visas to ICE enforcement techniques. A lot of the administration's actions in the immigration context are designed to achieve their immediate goal. But even if they don't achieve their immediate goal, they send a message. And the message is that this administration is not in favor of immigration, so don't come. And I think that's an unfortunate message. But the fact that things that they do are struck down doesn't mean they haven't worked because the goal is to a significant degree to express the view and policy of the administration in addition to accomplishing the immediate things that are set forth in a particular executive order or regulation or policy statement. And so yes, with regard to birth tourism, they have not given up on citizenship restriction.

We know that from what I've been calling the first executive order that was issued in August, the second executive order restricting birthright citizenship. And they will defend that and try to make the argument that notwithstanding Trump versus Barbara, it's valid. I think they'll lose that, but then they have the birth tourism executive order, which is going to enhance enforcement of the prohibition on coming here under a B1 or B2 visa primarily for the purpose of giving birth. What is the point of that? Well, to a significant degree, that executive order is a solution in search of a problem because birth tourism is, I don't think, a major phenomenon. Again, other than people who want to come to the United States to live to have a better life for themselves and their children. And some people do that as lawful permanent residents. Some people come on non-immigrant visas hoping to stay.

Some people come without any sort of documentation, but that certainly is a common motivation. The problem that the birth tourism executive order is trying to deal with is something slightly different, and that is people who pop in to give birth and then go back to their home country, whatever that is. And they never intend to live in the United States and they never intend to have their child live in the United States, at least not necessarily, and at least even if so, not for a long time. And that phenomenon I think is one of very small numbers. And it's going to be hard to eliminate entirely because the people who can afford to do that are affluent. And some of them anyway, will be able to figure out ways to circumvent the enforcement restrictions that now exist and those that will be put into place.

And so some people will still do it, which is not to say that the enforcement is going to be completely ineffective. We have small numbers of people doing that now, and the numbers in the future will be smaller still. But the small numbers doing it now, I don't think anybody regards it as a significant practical problem. It's a symbolic problem. It's a political problem, and the solution is symbolic and political. And so I think President Trump has made his point simply with issuing the executive order. We'll see some new regulations. There's a new state department task force that's being put together. We'll see probably some high profile enforcement actions, and then the point will be made. But I doubt that it's going to seriously affect the flow of immigration because that part of the flow of immigration is tiny at the moment.

I guess this is where, as a practitioner, my concerns start to heighten. I hope for the large part that the implication of this type of scrutiny and kind of assessing individuals won't trickle into, I guess, other visa categories. But as a practitioner where you do have individuals that are traveling for a other purpose, whether it is a spouse accompanying someone on an L-1 or an H-1B, or they have that visa themselves, is how does the actual application of this essential bar for birthright tourism play out where you do have individuals who are either of childbearing age or particularly of applicants who are visibly pregnant trying to enter the United States?

Well, it's a concern. It's a concern. And we certainly have seen enforcement actions that raise eyebrows. We've seen enforcement actions that are patently unjust, beginning with US citizens put into deportation proceedings or actually deported. And the protections, of course, are even less for people outside the United States who are trying to come in. One of the things that I worry about is women trying to come to the United States for medical treatment for their unborn child or themselves while they are pregnant and not being able to access it. And that is a concern because bureaucracies sometimes count successes by the numbers. And if immigration officers and consular officers are told that they're going to be evaluated based on the number of denials of visas, based on the new birth tourism enforcement effort, I fear that some women who really need medical treatment or their unborn children really need medical treatment will be denied it unjustly.

Other considerations are important too. In the United States, of course, our law has this general prohibition against discrimination against pregnant women. And I would not like to see a enforcement pattern where female workers from other countries who have absolutely legitimate reasons to be in the United States are denied that opportunity simply because they're pregnant. And if frontline immigration officials are told to be on the lookout for that, they will be on the lookout for that. And so I think there is a reason to be concerned.

One of the compounding factors that I see in addition to this level of screening that potentially can imply is that when a consulate officer oversees at a US consulate refuses a visa, that decision for practical purposes is final. My understanding is there's pretty much a longstanding doctrine that a court generally will not review that decision. And even if they were, the timeframe that it would take for such review pretty much invalidates getting the visa within any meaningful timeframe. How do we reconcile understanding the procedural aspect of potentially getting a visa, screening happening, and a denial happening with the constitutionality of the executive

Order? Well, the executive order only comes into play. And here I'm talking about the executive order regarding citizenship, birthright citizenship. It only comes into play if the person has made it in and if the mother has made it in and gives birth in the United States. And there I'm saying that under Trump versus Barbara, that child would in fact be a US citizen regardless of the executive order. But if the child doesn't make it in, then under the doctrine of consular non-reviewability, if the child would've and should have been a US citizen, but isn't a US citizen because the mother was excluded wrongly based on pregnancy, then that is, I think, not something that can be remedied under current law. So what's a lawyer to do? I think lawyers have to anticipate this problem. And I'm sure that you and the lawyers listening to this will have thought about this before me telling them.

But given that frontline enforcement officers are going to be looking for this stuff, I think lawyers have to put together packages that anticipate and head off concern that somebody is coming to the United States for purposes of giving birth. And so for example, one of the things that the government has complained about in its prosecutions on this issue is somebody coming to the United States and they say they're going to be here a week, but they remain three months for purposes of giving birth. And if somebody is coming to the United States on a B-1 or B-2 visa for two weeks, I think really making the case that they're going to leave in two weeks before they give birth, if that's the case, might be helpful to heading off a concern that this is a risky case.

So then I think if we were to try and summarize where we're at and potentially where this can go, we had the Supreme Court decision in Trump versus Barbara. The two new executive orders have come out. And as you've so wonderfully walked us through, the strength of these orders or I guess the ability to challenge these orders are somewhat similar, but somewhat different. And then there's also the potential of the application of birth tourism. What does a listener really take away from what we've been able to go through today, particularly if they saw the headline and there's been a moment of panic?

Well, the headline is that the birthright citizenship controversy isn't over. J.D. Vance said a day or two after the Trump versus Barbara decision that birthright citizenship is hanging by a threat. Only five justices agreed with the constitutional holding, and if one of those were replaced, then it could be reversed. And we saw this executive order. We've seen bills introduced in Congress. And so I think this is at least going to be a political issue for some time to come. That's certainly one takeaway. And another is that given the limited rights that a person overseas has to come to the United States, to get a visa to come to the United States, it's more important than ever to be able to persuade the frontline decision makers that your client is legit. I don't know what kinds of things the conteller officials are going to be looking for.

I don't know if they're going to have boxes of pregnancy tests sitting in the embassies, but I suspect we'll find out pretty quickly to what extent any new protocols are put into operation to ferret out this, I believe, largely non-existent group of people who are fraudulently trying to come to the United States primarily to give birth and not for other legitimate reasons. But it is going to be an advocacy challenge that's all the more important because of the inability to appeal.

Well, Professor Jack Chin, I thank you so much for nerding out with us and getting us into the weed of this birthright citizenship action and for joining us on the Immigration Nerds Podcast.

My pleasure. Thank you.

And nerds, you can track everything going on at Ericsson Immigration Group at our website, EIG law.com. And remember, if you believe immigration makes us all better, then this is the podcast for you. Subscribe and share and meet us right back here for another new episode of Immigration Nerds.