The most controversial aspect of birthright citizenship is probably the several hundred thousand children born to illegal immigrants each year or the estimated five million U.S.-born children of illegal aliens in the country. Although smaller, there is also the question of children born to long-term temporary visa holders (primarily guestworkers, foreign students, and exchange visitors). These individuals are referred to as "non-immigrants" by the government, in contrast to those granted legal permanent residence, who are known as "immigrants" or green card holders. Whether the U.S. Constitution actually requires giving automatic citizenship to the children of temporary visitors, as is current practice, is not the focus of this analysis.
In 2016, the Office of Immigration Statistics inside DHS estimated that there were a total of 2.3 million people living in the United States on long-term temporary visas. We use DHS estimates of the non-immigrant population to estimate births to non-immigrants. We estimate that in 2016 there were about 39,000 births in the United States to a mother on a non-immigrant visa. We further estimate that 90 percent of the fathers of these children were non-citizens themselves, making it very likely that the fathers were either on non-immigrant visas like the mothers or were possibility illegal immigrants. This means that in 2016, about 35,000 children were born to a non-immigrant mother and were awarded U.S. citizenship at birth solely because they were born on U.S. soil and not because of their parents' citizenship.1 While nowhere near as large as the number born to illegal immigrants, it still means that each decade some 350,000 people are given automatic U.S. citizenship because their parents came to the United States to study or work temporarily.
The question of whether the United States should award citizenship to all children born in the United States automatically regardless of the parents' immigration status is an important one. It relates directly to issues of national sovereignty and who is an American. Whether the Constitution actually requires the current practice of awarding automatic citizenship to children born to foreigners on temporary visas or whether awarding citizenship to these individuals constitutes good public policy are beyond the scope of this analysis. What this analysis does show is that the number of children born to non-immigrants is not trivial; and over time the numbers are substantial.
Methodology: Estimating Births to Temporary Visa Holders
The 2016 DHS report on non-immigrants shows 800,000 women ages 18 to 44 living in the country. Of these women, 310,000 were ages 18 to 24; 370,000 were ages 25 to 34; and 120,000 were ages 35 to 44. The DHS report also shows non-immigrants by visa category and the top sending countries.
Unfortunately, there is no table in the DHS report that divides non-immigrant women by age, visa category, and country together, so we are forced to make some assumptions about the number of births by country and visa category for women in their child-bearing years by country.
We estimate birth rates using the American Community Survey (ACS) collected by the U.S. Census Bureau. The ACS asks all women if they had a child in the prior year. To estimate birth rates for foreign students, we select non-citizen women by each age group reported in the DHS report and limit the analysis to those enrolled in school who entered the country as adults and have been in the country for no more than six years. To estimate birth rates for non-immigrant women who are not on student visas, we again limit the analysis to non-citizens who came to the United States as adults, are employed or the spouse of someone who is employed, have been in the country for less than six years, and are not students. India and China together account for 40 percent of non-immigrants in the country according to DHS; so we weight the birth rates for students and non-students by age to reflect the large share from these two top non-immigrant sending countries. The table below uses the birth rates from the ACS and combines them with the number of non-immigrant women in the country on student and non-student visas reported by DHS in 2016 to estimate the total number of births to mothers on non-immigrant visas.
In this analysis we ignore births to non-immigrants under age 18, as the number of them ages 15 to 17 is relatively small and their births rates quite low. Moreover, DHS has not provided the number of 15- to 17-year-olds, but instead groups all women under age 18 together. We do include children born to women on diplomatic visas, some of whose children are not automatic citizens. However, their inclusion makes no meaningful difference to the analysis as all women on diplomatic visas account for just 2.5 percent (20,000) of all non-immigrant women in their child-bearing years in the DHS estimates. Further, many of the children born to those on diplomatic visas do in fact receive automatic citizenship because of the nature of the diplomatic visa.2
The table shows a total of 39,407 births to the 800,000 women 18 to 44 on non-immigrant visas. This translates into a birth rate of 49 per thousand for non-immigrant women 18 to 44. The 2016 ACS shows a birth rate for all women ages 18 to 44 in America (native-born, legal immigrants, and illegal immigrants) of 68 per thousand — 77 per thousand for immigrant women (legal and illegal) and 66 per thousand for native-born women. This means that the birth rate for women on non-immigrant visas is a good deal lower than the birth rate for both native-born Americans and immigrants generally.
Estimated Births to Women on Non-Immigrant Visas
|Ages 18-24||Ages 25-34||Ages 35-44|
|Number of Students1||230,000||100,000||10,000|
|Births per Thousand, Students2||12.7||57.2||108.6|
|Births to Women on Student Visas||2,914||5,722||1,086|
|Number of Non-Students1||80,000||270,000||110,000|
|Births per Thousand, Non-Students2||46.6||74.6||52.8|
|Births to Women on Student Visas||3,725||20,153||5,807|
|Births by Age Group, Students and Non-Students||6,639||28,875||6,893|
|Total Births to Non-Immigrant Women: 39,407|
1 Number of women by age and visa category based on 2016 DHS report.
2 Figures reflect birth rates calculated from the 2016 American Community Survey for students and non-students.
Determining the share of births to non-immigrant mothers where the father is a U.S. citizen is more uncertain than is estimating births rates or the resulting number of births to this population. Based on our analysis of our surrogate population in the ACS, we find that 90 percent of the births in the previous year to a non-immigrant mother were to a father who was not a U.S. citizen. If this is correct, then there were about 35,000 births in 2016 to non-immigrant women in the United States in which the father was also not a U.S. citizen. We think the share of these births to non-citizens may be even higher, but we are not able to definitively identify non-immigrants in the ACS, so we use a conservative estimate of 90 percent for the share of children born to non-immigrant women and non-citizen fathers.3 It should be pointed out that while the vast majority of fathers do live with their children, this is not always the case. We have no way of estimating the citizenship of fathers who do not reside with their newborn sons or daughters. This introduces further uncertainty into our analysis.
The number of non-immigrants living in the country may vary from year to year; however, DHS estimates indicate that the number has not changed dramatically since 2008. Given the general increase over the last decade, the number of long-term, non-immigrant visa holders in the country is not likely to fall anytime soon, absent a substantial change in policy. This means that that roughly 350,000 people each decade are awarded U.S. citizenship because their parents were in the county on a long-term non-immigrant visa when they were born.
1 Under current law, children born to lawful permanent residents (green card holders) who are outside of the United States at the time of birth are not U.S. citizens. The parents of the child have to obtain a green card for the child upon return to the United States. Thus, the children of green card holders are U.S. citizens only when the birth occurs on U.S. soil.
2 Table 3 in the DHS report on non-immigrants shows just 20,000 women in their child-bearing years on diplomatic visas. While there is no mechanism to enforce it, some of the children born to those on diplomatic visas are not supposed to be awarded automatic citizenship at birth because their parents enjoy full diplomatic immunity, which means they are not subject to the laws of the United States. The U.S. Constitution says persons born in the United States "and subject to the jurisdiction thereof, are citizens of the United States." There is general agreement that full immunity means such individuals are not subject to U.S. laws and so children born to them in the United States should not receive automatic citizenship. However, there are many different types of diplomatic visas, including for embassy and consular support staff, and those who work at international organizations. Many holding such diplomatic visas do not have full immunity. This means that, under current practice, their children would be U.S. citizens. Since the number of women in their child-bearing years on diplomatic visas is so small, the number of births to these individuals makes almost no difference to this analysis.
3 There are several reasons why such a large share of children born to non-immigrant women also have a non-citizen father. Immigrants tend to marry and have children with other immigrants. This is especially the case for recently arrived immigrants, which describes almost all non-immigrants. The Current Population Survey Annual Social and Economic Supplement from March 2016, which, like the ACS is collected by the Census Bureau, asks about the place of birth of the parents for all those in the survey, including newborn children. The CPS shows that of all young children (≤1) born in the United States to recently arrived immigrant mothers, slightly more than 86 percent also had an immigrant father. And this figure is for all immigrants, not the subgroup that are on non-immigrant visas. Second, a citizen father can sponsor the mother of his children for a green card (permanent residence) if he is married to her or if he intends to marry her. Non-immigrants who received a green card through a citizen spouse are by definition not included in DHS estimates of non-immigrants. We know from birth certificate records that the overwhelming majority of births to more educated immigrants, which describes most non-immigrants, are to married parents. In short, if women included in DHS estimates have a child, in the vast majority of cases the father is not an American citizen.