A new rule changing how Americans serving in the military and other postings abroad pass U.S. citizenship to their children could disproportionately affect LGBTQ families, advocates are warning.
United States Citizenship and Immigration Services (USCIS) announced the change Wednesday, which sowed confusion and threw immigration law analysts into overdrive.
At its core, the rule tightens of the definition of "residency" that USCIS takes into account when deciding whether Americans overseas can transmit their citizenship to their children.
The measure does not affect natural-born U.S. citizens, including children born overseas to U.S. citizen parents who fulfill the statutory residency requirements.
Officials said Thursday the measure is expected to affect between 20 and 25 individuals per year.
But groups that represent LGBTQ military families have expressed concern their community could be disproportionately represented among those affected.
"We are very concerned about how this new policy may affect our LGBTQ service members looking to adopt or use surrogates, sperm or egg donors or IVF," said Peter Perkowski, legal and policy director at LGBTQ military family advocacy group Modern Military Association of America, who added that they are also concerned about the effects on green card holders.
The measure will also affect the born-abroad children of noncitizen service members who naturalized after they became parents.
“Our nation's modern military families deserve better than this, and the last thing they should have to worry about is going through extra hoops in order to ensure their children are U.S. citizens,” Perkowski said in a statement. “We continue to urge Congress to look into this new policy and hold this administration accountable."
The USCIS rule does not change the nature of how citizenship is acquired, nor birthright citizenship as enshrined in the 14th Amendment to the Constitution.
Under the new rule, some children of U.S. citizens abroad who were previously eligible to acquire citizenship through derivation — the simpler process of becoming a citizen by virtue of a parent's nationality — would now have to seek citizenship through naturalization, the process available to foreign nationals without U.S. citizen parents.
The naturalization process would mean difficult and expensive paperwork for service members and civil servants posted abroad for long periods of time, according to experts.
“While this policy does not specifically target LGBTQ people, it does appear to disenfranchise many Americans who represent this nation overseas," Aaron C. Morris, Executive Director of Immigration Equality, said.
"The administration could have construed the law to benefit our civil servants and members of our military, people who give their lives every day in service of this nation. Instead, it chose a policy to make it harder for their kids to become citizens,” Morris added.
Because of its rollout process, the policy could face legal action if it is found to diminish rights citizens had before, rather than just reinterpreting existing rules, said Ur Jaddou, a former USCIS chief counsel during the Obama administration.
The policy was issued as a memo, the simpler and faster process to emit policies, rather than a rule subject to public notice and comments.
"If it fundamentally alters the rights that people had before, then that defines that you'd likely have to go through notice and comments," said Jaddou.
It's still unclear whether any child of a U.S. citizen will be entirely unable to acquire citizenship because of the rule, rather than just being pushed from derivation to naturalization.
The new rule requires residency in the United States to be established by virtue of living in a home on U.S. territory, rather than living at home abroad under the same roof as U.S. citizen parents.
That could put some service members with foreign-born children in an intractable position.
For instance, service members looking to fulfill residency requirements to naturalize their children could be forced to choose between their career and the residency requirement "because they're serving abroad under official order and can't take the time to return to the United States without potentially harming their ability to remain in the military," said Jaddou.
Rep. Ro KhannaRohit (Ro) KhannaWill the US emulate China's tech takedown? Supreme Court's abortion ruling amplifies progressives' call for reform Defense & National Security — The mental scars of Afghanistan MORE (D-Calif.), who said his office received numerous calls about the new policy, said the change “certainly discriminates” against LGBTQ troops overseas.
“It’s an absurd attempt for the administration to try to interpret the 14th Amendment,” Khanna told reporters Thursday. “I know the president thinks he’s very powerful, but the president of the United States has no authority to try to rewrite the 14th Amendment.”
Khanna said he expects affected groups or individuals to sue and would hope that the Supreme Court recognizes “the blatant unconstitutionality of this power grab by the administration.”
Asked if the change appears to be the first step toward an attempt at a broader change to birthright citizenship, Khanna said “the only person who knows the answer to that is Stephen MillerStephen MillerDefense & National Security: The post-airlift evacuation struggle How Trump broke the system that offers protection to Afghan allies Sunday shows preview: Bombing in Kabul delivers blow to evacuation effort; US orders strikes on ISIS-K MORE,” referencing the Trump administration's hard-line adviser.
The rule change, which compared to other Trump immigration initiatives will affect a much smaller number of people, left many immigration experts baffled.
"Why? Why did they do this?" Jaddou said.
"It's not like this has huge effect on thousands of people," she added. "But it's going to affect some people. And why? And I simply at this point conclude … this administration has looked at every corner of the immigration law, to find ways to narrow, constrict, to limit access to it. And this is one more example."