AS June bids goodbye to 2026, the United States Supreme Court has sent a tentative hello to US visa applicants. The slim majority win could turn into a huge loss should the Republican Party increase its hold in Congress.
Writing for the majority, Chief Justice John Roberts joined Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson on constitutional grounds.
The quantitative vote was 6-3, but the qualitative count is actually 5-4 — a squeaker as Justice Brett Kavanaugh concurred with the judgment but dissented in part. Justice Kavanaugh disagreed that President Trump’s Executive Order 14160 violates the Fourteenth Amendment but concede on federal grounds that 8 USC. §1401(a) must — as in the case of “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory” and “children of members of the Indian tribes — establish exceptions to birthright citizenship for children born to foreign citizens unlawfully or temporarily in the country.”
Passionate and lengthy dissents were penned by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.
The issue that was the vote of contention?
“Subject to US jurisdiction.”
Section 1 of the Fourteenth Amendment to the US Constitution states that, “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.”
The June 30 Supreme Court ruling held that “Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause. Pp. 2–26.”
Foreign nationals holding temporary visas are subject to US jurisdiction. So are those who crossed the border and are in the US unlawfully.
Temporary visas such as visitor, student, working are issued after an applicant is considered eligible to enter the US under existing laws. They are expected to abide by the conditions of the visa issuance.
Before or after arrest, detention, physical removal, the visa overstayers, border crossers, undocumented, unlawfully present aliens are subject to US jurisdiction.
The same rule applies to children born to parents without legal status in the US. Children cannot choose their parents, nor the rules governing their parents’ stay.
Temporary visa applicants should expect further intense scrutiny of their intentions. Section 214(b) of the Immigration and Nationality Act (INA) presumes “all nonimmigrants are considered to be intending immigrants” unless proven otherwise.
Refusal rates for tourism/business visas. In 2024, the State Department reported 10,969,936 nonimmigrant visas issued; 3,010,544 visa applications were refused for “failure to establish entitlement to nonimmigrant status” which to the consul means an applicant has not shown compelling factors to return to the country of nationality/residence at the end of the temporary stay.
In the same report, the Philippines showed a 30.76 rejection rate, lower than Nepal’s 59.47 percent but higher than India’s 22.04 percent.
The Supreme Court’s squeaky majority rule bodes stricter and intense scrutiny of temporary visa applicants, mainly the B1/B2 visitor visa categories.
Consuls are the frontline soldiers of the US constitution, but they apply federal laws when evaluating visa applications.
Under Section 403.10 214(B)(1) of the State Department’s Foreign Affairs Manual “every visa applicant is presumed to be an immigrant until the applicant establishes to [consular officer’s] satisfaction eligibility for a nonimmigrant status under INA 101(a)(15). An INA 214(b) determination cannot be waived.”
In 2025, consuls at posts worldwide issued 823,557 nonimmigrant visas (NIVs), down from the previous year’s 925,157 NIV total.
The refusal rate should be higher this year and until the results of US midterm elections are officially announced.
Of the 435 members of the current 119th House of Representatives, 218 are Republicans, 212 from the Democratic Party. The lone independent member Kevin Patrick Kiley serves constituents of California’s 3rd congressional district.
While Kiley voted with the Democrats on the Secure America Act 2026 — a $70 billion piece of legislation by Republicans signed into law by President Trump on June 10 — he has been an outspoken critic of California’s sanctuary laws and introduced the “No Medicaid for Illegal Immigrants Act” to block the use of state and federal Medicaid funds for undocumented individuals.
Kiley is therefore expected to vote against birth tourism long held to be a mockery of US citizenship where mothers enter the US or cross the border to have a US citizen child.
House Speaker Mike Johnson decries the “gross abuse of birthright citizenship” and Sen. Lindsey Graham, R-SC, called birthright citizenship a “major magnet for illegal immigration and birth tourism.”
How many birth mothers?
There are no official data on how many foreign visa holders or border crossers give birth in the US, only estimates.
The conservative Center for Immigration Studies believe that of the 3,628,934 born in the US in 2024, an estimated 20,000 to 26,000 are possible jus soli babies.
Assuming they all reach voting age, they are not likely to make a huge difference in electing House Representatives or state senators.
But threat overpowers logic.
The “gross abuse” and “major magnet for illegal migration and birth tourism” bias defang data.
Stephen Miller, White House deputy chief of staff — apparently referring to visa, port of entry and border officers — said on Fox News, “You have to now think very carefully about who you let into your country, even on a temporary basis” because of birth tourism.
Of the 26,726 NIV Philippine applicants in 2025 only 8,018 B-1/B-2 visas were issued.
Given Miller’s exhortation and the Republican Party’s contempt of immigrants, the rejection rate for visa applications, consular report of birth abroad and claim to US citizenship through the parent — crucially from fathers — could easily double despite Chief Justice Roberts’ caution that, “If Congress intended to limit American citizenship to the children of those domiciled in the United States, nothing in the succinct language of the Citizenship Clause conveyed that design; words appearing frequently in the executive order — “mother,” “father,” “lawful,” “temporary” — are absent from the clause.”
However, the question under the Security and Background Information section of the DS 160 Nonimmigrant Visa Applicant not likely to be added anytime soon is “Are you pregnant and/or intend to give birth in the United States?”
Foreign citizenship choices
If not a US citizen, which other country could a birth mother choose?
Unrestricted birthright citizenship is allowed in Canada, Mexico, Brazil and Argentina, North and South American countries as well as Lesotho and Tanzania, Gambia and Tuvalu in Africa and Oceania.
A US citizen passport — issued after providing a birth certificate issued by a US agency, a naturalization certificate or Certificate of Birth Abroad from the State Department — will allow you to visit most of these countries without a visa.
Other than Canada (which shares a border with the US) and given these choices, a birth mother is likely to say, “thanks but no thanks” — unless a new Congress includes children of aliens unlawfully or temporarily present in the US as not eligible for citizenship.