An Interim Rule, Immediately Effective

The Department of Homeland Security put a rule into effect on Friday 4 September and published it in the Federal Register five days later. The interim final rule, printed on Wednesday 9 September at 91 FR 57249, lets children born in the United States to “foreign government employees” register as lawful permanent residents. Its first operative paragraph also states that such a child, unless a parent is a U.S. citizen, “is not a United States citizen under the Fourteenth Amendment.” It was issued without prior notice and comment, and it has been corrected once.

It is not a Justice Department rule, although it appears on a Justice Department page. The Executive Office for Immigration Review keeps a list of Federal Register notices that carries immigration items from other agencies, and this one belongs to Homeland Security. The issuing component is U.S. Citizenship and Immigration Services, under docket USCIS-2026-0496, and USCIS announced it on 4 September.

What the rule does

Since 1982 the regulations at 8 CFR 101.3, 101.4 and 264.2 have let a child born in the United States to a foreign diplomatic officer, who does not acquire citizenship at birth, register as a lawful permanent resident by filing Form I-485. The old text defined the officer as “a person listed in the State Department Diplomatic List, also known as the Blue List.” The rule deletes that reference, saying the list is no longer published, and replaces the diplomat with a four-part definition of “foreign government employee”: accredited diplomatic officers; nationals employed by their country’s embassy or consulate; people employed by a foreign government in an official capacity; and employees of international organisations that hold immunity.

It then excludes, unless they are diplomats, personal employees such as chauffeurs and housecleaners, employees of state-owned enterprises outside the A and G visa classes, third-country nationals working for a foreign government, contractors, and officials visiting in a personal capacity. DHS acknowledges in the preamble that the new category is “broader than the term ‘foreign diplomatic officer’” it replaces.

The new 8 CFR 101.3(a)(1) says a child born to such an employee “may be considered a lawful permanent resident at birth.” Registering is voluntary. Registering as an alien under section 262 of the Immigration and Nationality Act is not, and the rule points children who do not take up permanent residence to Form G-325R. It applies only to births on or after 4 September; earlier births are handled under the rules in place when they occurred.

The source is Executive Order 14418, which the rule says the President issued on 6 August, and which lists the same four categories. It followed Trump v. Barbara, which, in the words of a federal judge in Maryland, “effectively invalidated the 2025 Executive Order as unconstitutional.” DHS says it is “unable to quantify” how many children are affected. It notes that the State Department’s Office of Foreign Missions reports “more than 124,000 foreign mission members and dependents,” and then says that figure cannot be used, because the data do not show how many have a citizen spouse or leave the country before or after a birth.

Two exemptions, not one

The notice rests on two separate grounds. The first is the foreign affairs exception in 5 U.S.C. 553(a), which DHS says removes both the comment requirement and the 30-day delay. The test it cites is whether a rule “clearly and directly” involves a foreign affairs function, taken from a 2020 decision, Capital Area Immigrants’ Rights Coalition v. Trump. DHS argues that the status of these children bears on how other countries treat American diplomats and their children abroad.

The second is good cause under section 553(b)(B), which lets an agency skip notice where it finds the procedure “impracticable, unnecessary, or contrary to the public interest.” DHS concedes the exception is “narrowly construed and only reluctantly countenanced,” quoting New Jersey v. EPA. It argues the impracticable and public-interest prongs: children born from the effective date need a way to register “as soon as possible in order to ensure that they have a lawful status in the United States.”

The urgency follows from a legal conclusion. Notice and comment would be impracticable, DHS writes, “because as discussed elsewhere in this rule, children born to foreign government employees who do not have a U.S. citizen parent are not U.S. citizens.” That sentence is both the justification for skipping comment and the substance of the rule. Comment is ordinarily where a conclusion of that kind is tested before it applies to a new and wider category.

What the correction changed

The correction, at 91 FR 58575 on 16 September, concerns 8 CFR 264.2(c)(2), the list of what an applicant must file. DHS says it meant to revise only the introductory text, but its amendatory instructions “did not make that clear and the CFR was codified by removing the sub paragraphs that contained evidentiary criteria.” The correction restores them.

It also edits two items. A child of a government employee who is not a diplomatic officer “may not be required” to file Form I-508, the waiver of rights, privileges and immunities, and the applicant must supply official confirmation of the parent’s foreign government employment, with diplomatic classification only “if applicable.” DHS says those changes were already in the Form I-485 collection approved with the rule. The correction is effective 16 September but applies from 4 September, and it invokes good cause again, this time on the ground that notice is “unnecessary” for a technical error. The rule argued two prongs of the exception; the correction argues the third.

What happens next

Comments closed on Monday 5 October. That was 26 days after publication and 31 after the effective date; those are this publication’s calculations from the dates in the notice. The notice sets no date for a final rule. The forms run on a different clock: USCIS asked the Office of Management and Budget for emergency approval of the revised collections for six months.

The larger constraint is in a court docket. The notice says that, given the injunction in Casa Inc. v. Trump in Maryland, DHS will not apply the rule to any member of the certified class “unless and until the government obtains relief from the injunction.” Judge Deborah L. Boardman signed that 35-page opinion on 2 September. The class she certified in August 2025 is of children subject to the 2025 executive order. Neither the rule nor the opinion says how many children of foreign government employees fall inside it.

The comment period was open for 26 days. By the time it closed, the rule had been in force for 31.

Sources

The rule’s text, dates, definitions, exemptions and quotations are from the interim final rule at 91 FR 57249, and the correction’s from 91 FR 58575. The announcement date is from USCIS. The description of Trump v. Barbara, the injunction date, the judge and the class are from the memorandum opinion in Casa Inc. v. Trump, No. 8:25-cv-00201 (D. Md.). The day counts are this publication’s.