Rule2026-18345
Registration of Lawful Permanent Residence for Children Born to Foreign Government Employees in the United States
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 9, 2026
Effective
September 4, 2026
Issuing agencies
Homeland Security Department
Abstract
Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS) is amending its regulations to permit children born in the United States to "foreign government employees" who are not U.S. citizens to register for permanent residence. DHS is also making corresponding changes to Form I-485, Application to Register Permanent Residence or Adjust Status and Form G-325R, Biographic Information (Registration).
Full Text
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<title>Federal Register, Volume 91 Issue 173 (Wednesday, September 9, 2026)</title>
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[Federal Register Volume 91, Number 173 (Wednesday, September 9, 2026)]
[Rules and Regulations]
[Pages 57249-57258]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18345]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 101 and 264
[CIS No. 2882-26; DHS Docket No. USCIS-2026-0496]
RIN 1615-AD24
Registration of Lawful Permanent Residence for Children Born to
Foreign Government Employees in the United States
AGENCY: Department of Homeland Security, U.S. Citizenship and
Immigration Services.
ACTION: Interim final rule; request for comments.
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SUMMARY: Department of Homeland Security (DHS), U.S. Citizenship and
Immigration Services (USCIS) is amending its regulations to permit
children born in the United States to ``foreign government employees''
who are not U.S. citizens to register for permanent residence. DHS is
also making corresponding changes to Form I-485, Application to
Register Permanent Residence or Adjust Status and Form G-325R,
Biographic Information (Registration).
DATES: This interim final rule (IFR) is effective on September 4, 2026.
This IFR will apply to children born to foreign government employees on
or after September 4, 2026; children born to a foreign government
employees prior to that date will be treated consistently with the
regulations in place at the time of their birth. Comments must be
received on or before October 5, 2026. The electronic Federal Docket
Management System will accept comments prior to midnight eastern time
at the end of that day.
ADDRESSES: You may submit comments on the entirety of this interim
final rulemaking package, identified by DHS Docket No. USCIS-2026-0496,
through the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the website instructions for submitting comments. Comments must
be submitted in English, or an English translation must be provided.
Comments that will provide the most assistance to USCIS in implementing
these changes will reference a specific portion of the interim final
rule, explain the reason for any recommended change, and include data,
information, or authority that support such recommended change.
Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the interim final rule and may not receive a
response from DHS. Please note that DHS and USCIS cannot accept any
comments that are hand-delivered or couriered. In addition, USCIS
cannot accept comments contained on any form of digital media storage
devices, such as CDs/DVDs and USB drives. USCIS is also not accepting
mailed comments at this time. If you cannot submit your comment by
using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact the Regulatory
Coordination Division, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, by telephone
at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Office of Policy and Strategy, U.S.
Citizenship and Immigration Services (USCIS), DHS, 5900 Capital Gateway
Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (this is not a
toll-free number). Individuals with hearing or speech impairments may
access the telephone number above via TTY by calling the toll-free
Federal Information Relay Service at 711.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Purpose and Background
A. Purpose of the Regulatory Action
B. Background
III. Discussion of Interim Final Rule
A. Applicability and Timing
B. Definition of Foreign Government Employee
C. Subject to the Jurisdiction of the United States
D. Registration as a Lawful Permanent Resident
E. Form Changes
F. Conforming Regulatory Changes
IV. Statutory and Regulatory Requirements
A. Administrative Procedures Act (APA)
B. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 13563 (Improving Regulation and Regulatory Review),
and Executive Order 14192 (Unleashing Prosperity Through
Deregulation)
C. Regulatory Flexibility Act (RFA)
D. Congressional Review Act (CRA)
E. Unfunded Mandates Reform Act of 1995 (UMRA)
F. Executive Order 13132 (Federalism)
G. Executive Order 12988 (Civil Justice Reform)
H. Family Assessment
I. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
J. National Environmental Policy Act (NEPA)
K. Paperwork Reduction Act (PRA)
Table of Abbreviations
APA--Administrative Procedures Act
ASC--Application Support Center
CPI-U--Consumer Price Index for All Urban Consumers
CRA--Congressional Review Act
DHS--Department of Homeland Security
DOS--Department of State
E.O.--Executive Order
HSA--Homeland Security Act of 2002
NEPA--National Environmental Policy Act
OMB--Office of Management and Budget
PRA--Paperwork Reduction Act
RFA--Regulatory Flexibility Act
SBREFA--Small Business Regulatory Enforcement Fairness Act of 1996
Secretary--Secretary of Homeland Security
UMRA--Unfunded Mandates Reform Act of 1995
USCIS--U.S. Citizenship and Immigration Services
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this interim final rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this interim final rule. Comments must be submitted in
English, or an English translation must be provided. Comments that will
provide the most assistance to USCIS in implementing these changes will
reference a specific portion of the interim final rule, explain the
reason for any recommended
[[Page 57250]]
change, and include data, information, or authority that support such
recommended change. Comments submitted in a manner other than the one
listed above, including emails or letters sent to DHS or USCIS
officials, will not be considered comments on the interim final rule
and may not receive a response from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2026-0496 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2026-0496. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Purpose and Background
A. Purpose of the Regulatory Action
The purpose of this rulemaking is to clarify that certain aliens
who are born in the United States but are not United States citizens
may register their permanent resident status. This is consistent with
Executive Order (E.O.) 14418, Continuing to Protect the Meaning and
Value of American Citizenship, 91 FR 51991 (August 6, 2026), which
directs the Secretary of Homeland Security (Secretary) to take
appropriate action to prevent the issuance of documents recognizing
United States citizenship to certain individuals born in the United
States, where neither parent of that person is a U.S. citizen and at
least one parent meets certain conditions.
B. Background
The Fourteenth Amendment grants United States citizenship at birth
to ``all persons born . . . in the United States, and subject to the
jurisdiction thereof.'' The Supreme Court has interpreted the words
``subject to the jurisdiction thereof'' to create certain exceptions to
birthright citizenship, notably ``children of members of the Indian
tribes . . . children born of alien enemies in hostile occupation, and
children of diplomatic representatives of a foreign state.'' See U.S.
v. Wong Kim Ark, 169 U.S. 649, 682 (1898); see also Trump v. Barbara,
609 U.S. ---, 146 S.Ct. 2438, 2456 (2026) (``[A] person is `subject to
the jurisdiction' of the government of the country in which he is
physically present . . . unless he falls under one of the familiar
exceptions, such as for ambassadors.'').
Since at least the 1940s, the former Immigration and Naturalization
Service (INS), and more recently USCIS, have treated children born in
the United States to foreign diplomatic officers who do not acquire
citizenship at birth as eligible to register lawful permanent residence
in the United States. See Matter of Huang, 11 I&N Dec. 190 (BIA 1965)
(tracing this practice back to ``an opinion dated December 10, 1946, by
the General Counsel of the Service''); Matter of Chu, 14 I&N Dec. 241
(BIA 1972). In 1982, the former INS published regulations, at 8 CFR
101.3, 101.4, and 264.2, to create a formal procedure for creation of
records of lawful permanent residence for individuals born in the
United States to foreign diplomatic officers accredited to the United
States.\1\
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\1\ See Presumption of Lawful Admission; Registration and
Fingerprinting of Aliens in the United States; Creation of Records
of Lawful Permanent Resident Status for Aliens Eligible for
Presumption of Lawful Admission for Permanent Residence and for
Individuals Born Under Diplomatic Status in the United States, 47 FR
940-01 (Jan. 8, 1982); see also Nikoi v. Atty. Gen. of U.S., 939
F.2d 1065, 1067 (D.C. Cir. 1991) (describing the regulatory
history).
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These regulations, which are still in force today, state that a
child of a foreign diplomatic officer accredited to the United States
is not a U.S. citizen under the Fourteenth Amendment but may
voluntarily register as a lawful permanent resident of the United
States. To register, the applicant must file Form I-485, Application to
Register Permanent Residence or Adjust Status, and establish that he or
she has not abandoned his or her residence in the United States. If the
application is granted, the applicant is considered a lawful permanent
resident as of his or her date of birth.
On August 6, 2026, President Trump issued E.O. 14418, Continuing to
Protect the Meaning and Value of American Citizenship. See 91 FR 51991.
The E.O. identifies certain categories of children born in the United
States who do not fall within the rule of birthright citizenship as
announced by the Supreme Court in Barbara. Among these categories
identified in Section 2 of the E.O. are persons who do not have a U.S.
citizen parent, and either of their parents is a ``foreign government
employee, defined to include: (i) ambassadors; (ii) persons employed by
a foreign embassy or consulate who are nationals of that foreign
country; (iii) persons employed by a foreign government in an official
capacity; and (iv) persons employed by an international organization
that possess international-organization immunity.'' See id. at Sec.
2(b). The E.O. stipulates that DHS shall not ``issue documents
recognizing United States citizenship'' to, or accept documents issued
by the State, local, or other governments or authorities purporting to
recognize United States citizenship'' for these persons. See id.
Given the injunction currently in place in Casa Inc. v. Trump, No.
8:25-cv-00201 (D. Md Sep. 2, 2026), DHS will not take actions to
implement the rule specifically to any member of the certified class,
or otherwise conflict with the preliminary injunction, unless and until
the government obtains relief from the injunction. If the government
obtains timely relief from the injunction, DHS will implement the rule
accordingly.
C. Legal Authority
The authority for the Secretary to issue this rule is found in
various provisions of the Immigration and Nationality Act (``INA''), 8
U.S.C. 1101 et seq. INA section 103(a), 8 U.S.C. 1103(a) authorizes the
Secretary to administer and enforce the immigration laws and establish
such regulations as the Secretary deems necessary for carrying out such
authority. Section 102 of the Homeland Security Act of 2002, 6 U.S.C.
112, among others, vests all functions of all DHS officers, employees,
and organizational units in the Secretary and addresses the issuance of
regulations by the Secretary.
INA section 101(a)(20), 8 U.S.C. 1101(a)(20) likewise provides
authority insofar as the rule relates to persons who are ``lawfully
admitted for permanent residence.'' Authority for this rule is
furthermore found in INA sections 262 through 266, 8 U.S.C. 1302
through 1306, which govern the registration of aliens and authorize the
Secretary to prepare forms for registration and fingerprinting of
aliens.
[[Page 57251]]
III. Discussion of Interim Final Rule
A. Applicability and Timing
The IFR applies prospectively to children born in the United States
on or after the effective date of the IFR and subject to the new
provisions of 8 CFR 101.3. Children born in the United States before
the effective date of this IFR are not subject to the requirements of
this IFR.
B. Definition of Foreign Government Employee
DHS is defining the term ``foreign government employee'' in a
manner consistent with E.O. 14418. This definition applies only to
foreign government employees who are not U.S. citizens. The definition
of ``foreign government employee'' as set out in Section 2(b) of the
E.O. includes the following:
<bullet> Ambassadors;
<bullet> Persons employed by a foreign embassy or consulate who are
nationals of that foreign country;
<bullet> Persons employed by a foreign government in an official
capacity; and
<bullet> Persons employed by an international organization that
possesses international-organization immunity. See 91 FR 51991.
DHS notes that before this IFR, only children of foreign government
employees who were also foreign diplomatic officers and not U.S.
citizens were excluded from birthright citizenship, and there was no
definition of ``foreign government employee'' for the purpose of
determining birthright citizenship in the United States in 8 CFR.
However, 8 CFR 101.3, prior to this IFR, defined ``foreign diplomatic
officer'' in this context as ``a person listed in the State Department
Diplomatic List, also known as the Blue List,'' and included:
<bullet> Ambassadors, ministers, charg[eacute]s d'affaires,
counselors, secretaries, and attaches;
<bullet> Members of the Delegation of the Commission of the
European Communities; and
<bullet> Individuals with comparable diplomatic status and
immunities who are accredited to the United Nations or to the
Organization of American States, and other individuals who are also
accorded comparable diplomatic status.
Through this IFR, DHS is amending 8 CFR 101.3(a)(2) to define
``foreign government employee'' to mean:
<bullet> Foreign diplomatic officers accredited to the United
States; \2\
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\2\ This includes ambassadors, ministers, charg[eacute]s
d'affaires, counselors, secretaries and attach[eacute]s of embassies
and legations as well as members of the Delegation of the Commission
of the European Communities. The term also includes individuals with
comparable diplomatic status and immunities who are accredited to
the United Nations or to the Organization of American States, and
other individuals who are also accorded comparable diplomatic
status. Pursuant to 22 CFR 150.2, the question of whether any
particular person enjoys diplomatic agent-level immunity and is
therefore not subject to the jurisdiction of the United States, or
whether they enjoy lesser status-based immunity, on any particular
date entails both factual and legal analysis, and is determined by
the Department of State, in accordance with relevant international
and domestic law. Consistent with existing practice and USCIS
guidance, USCIS will continue to seek confirmation from DOS on
whether the applicant's parent or parents were foreign diplomatic
officers, as defined by DHS regulations, at the time of the child's
birth. See USCIS Policy Manual, Volume 7, Part O, Chapter 3.
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<bullet> Persons employed by a foreign embassy or consulate who are
nationals of that foreign country;
<bullet> Persons employed by a foreign government in an official
capacity; and
<bullet> Persons employed by an international organization that
possess international-organization immunity.
Additionally, DHS is amending 8 CFR 101.3(a)(2) to clarify that the
definition of ``foreign government employee,'' except if the foreign
government employee falls within the definition under paragraph
(a)(2)(i)(1), does not include:
<bullet> Personal employees or attendants of foreign government or
international organization officials, such as personal assistants,
chauffeurs, housecleaners, etc. (i.e., employees hired by individual
foreign officials rather than foreign governments);
<bullet> Employees of state-owned enterprises in a status other
than A or G nonimmigrant visa classifications;
<bullet> Third-country nationals working for a foreign government,
including at a foreign embassy or consulate;
<bullet> Employees of international organizations beyond those
international organizations designated by executive order as enjoying
immunity in the United States under the International Organizations
Immunities Act;
<bullet> Contractors of foreign missions, international
organizations, or governments in a status other than A or G
nonimmigrant visa classifications; and
<bullet> Foreign government employees visiting the United States in
a personal rather than an official capacity.
DHS notes that ``foreign diplomatic officer'' as defined in 8 CFR
101.3(a) prior to this IFR, is covered under the definition of foreign
government employee. See new 101.3(a)(2)(i)(A). DHS removes reference
to ``the State Department Diplomatic List, also known as the Blue
List,'' because the Diplomatic List is no longer published by DOS.\3\
As discussed above, the definition of ``foreign government employee''
is broader than the term ``foreign diplomatic officer'' as defined in 8
CFR 101.3(a) prior to this IFR. ``Foreign government employee,'' in
addition to including ambassadors like the definition of ``foreign
diplomatic officer,'' also refers more extensively to an individual's
employment by a foreign government or international organization,
whereas ``foreign diplomatic officer'' is defined more narrowly by
specific titles and designations, particularly with reference to
diplomatic status and immunities. Therefore, absent the changes made by
this IFR, a child born in the United States to certain foreign
government employees who lacks birthright citizenship would not have
previously been eligible to register as a lawful permanent resident.
Accordingly, DHS is amending its regulations to extend the opportunity
to voluntarily register permanent residence to children born in the
United States to a foreign government employee parent when neither
parent is a U.S. citizen. See new 8 CFR 101.3(b).
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\3\ See <a href="https://www.state.gov/office-of-the-chief-of-protocol/diplomatic-list">https://www.state.gov/office-of-the-chief-of-protocol/diplomatic-list</a> (last accessed Aug. 24, 2026). The Blue List was
last published in the fall of 2020. See <a href="https://2017-2021.state.gov/resources-for-foreign-embassies/diplomatic-list/">https://2017-2021.state.gov/resources-for-foreign-embassies/diplomatic-list/</a> (last accessed Aug.
24, 2026).
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C. Subject to the Jurisdiction of the United States
DHS is also clarifying that a child of a foreign government
employee is not subject to the jurisdiction of the United States for
purposes of birthright citizenship unless at least one parent of the
child is a United States citizen. See new 8 CFR 101.3(a)(1). When
neither parent is a U.S. citizen, the key inquiry is whether a parent
was a foreign government employee at the time of the child's birth.
Additionally, DHS removed the reference to ``international law'' from
the provision because the basis for excluding additional children of
foreign government employees from birthright citizenship is not solely
international law, but rather an ``extraterritorial fiction.'' \4\
Furthermore, DHS has removed the term ``child born subject to the
jurisdiction of the United States'' previously defined at 8 CFR
101.3(b) as DHS believes the definition provision was overinclusive in
that it included all children born in the United States unless their
parent was a foreign diplomatic officer.
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\4\ See Barbara, 146 S.Ct. at 2449; see also 91 FR 51991.
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[[Page 57252]]
D. Registration as a Lawful Permanent Resident
Under new 8 CFR 101.3(b), registration as a lawful permanent
resident will remain voluntary and will not be required for individuals
rendered eligible to register under this regulation. However, a person
born in the United States to a foreign government employee who is not a
United States citizen is subject to section 262 of the Act, 8 U.S.C.
1302, and must register as an alien when required to do so by the Act,
unless he or she has the rights, privileges, exemptions, and immunities
which may be claimed by a foreign diplomatic officer. Registration as a
lawful permanent resident under this regulation is one method of
complying with section 262 of the Act, 8 U.S.C. 1302, but there are
other available methods, including by filing Form G-325R, Biographic
Information (Registration). See 8 CFR 264.1. Children whose parents
choose not to register their permanent residence under this regulation
may be required to comply with the alien registration requirement by
filing Form G-325R, or having their parents file it on their behalf.
E. Conforming Regulatory Changes
DHS is also amending paragraph (d) of section 101.3 to revise a
reference ``a nonimmigrant classification under paragraph (15)(A) or
(15)(G) of section 101(a) of the Act'' to simply refer to ``a
nonimmigrant classification,'' because A and G nonimmigrant visa
classifications are primarily applicable to foreign diplomats. Children
of other foreign government employees who are born in the United States
and do not acquire citizenship at birth may reside in the United States
and travel on different types of nonimmigrant visas.
Additionally, DHS is making conforming amendments to 8 CFR 101.4
and 264.2 to replace the term ``foreign diplomatic officer'' with
``foreign government employee'' and to change all references to birth
``under diplomatic status'' to refer instead to birth ``to a foreign
government employee.''
F. Form Changes
Along with the amended regulations, DHS is revising forms. DHS is
revising Form I-485 to broaden language referring to children ``born
under diplomatic status'' and instead refer to children ``born to
foreign government employees'' and add instructional language
concerning which children of foreign government employees may file Form
I-485 to register as lawful permanent residents. DHS is also revising
Form G-325R, Biographic Information (Registration) \5\ to account for
children born in the United States who do not acquire U.S. citizenship
at birth and who are subject to 262 of the Act, 8 U.S.C. 1302, but do
not register as lawful permanent residents under the amended regulation
at 8 CFR 101.3.
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\5\ See G-325R, Biographic Information (Registration) <a href="https://www.uscis.gov/forms/all-forms/g-325r">https://www.uscis.gov/forms/all-forms/g-325r</a> (last visited Aug. 27, 2026)
and if required attend a biometrics services appointment according
to the Alien Registration Form and Evidence of Registration Final
Rule (91 FR 39248).
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IV. Statutory and Regulatory Requirements
A. Administrative Procedure Act (APA)
DHS has issued this IFR without prior notice and comment and
delayed effective date because, the regulatory amendments involve a
foreign affairs function under 5 U.S.C. 553(a)(1). In addition, DHS is
invoking the ``good cause'' exception of the APA. See 5 U.S.C.
553(b)(B). For the same reasons, a delayed effective date is not
required under 5 U.S.C. 553(d)(3).
1. Foreign Affairs
This rule is exempt from notice and comment and the delayed
effective date because it pertains to the foreign affairs function of
the United States. 5 U.S.C. 553(a). An action falls within the
exception if it ``clearly and directly'' involves a foreign affairs
function.\6\ Cases that directly involve the conduct of foreign affairs
include rules that regulate foreign diplomats in the United States.\7\
In City of N.Y. v. Permanent Mission of India to the U.N., the Second
Circuit found that a State Department Federal Register Notice regarding
exemptions from real property taxes imposed by state and local
governments validly invoked the foreign affairs exemption because the
regulation of diplomatic relations directly involves a foreign affairs
function of the United States.\8\
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\6\ Capital Area Immigrants' Rights Coal. v. Trump, 471 F. Supp.
3d 25, 53 (D.D.C. 2020) (``to be covered by the foreign affairs
function exception, a rule must clearly and directly involve
activities or actions characteristic to the conduct of international
relations'').
\7\ E.B. et al. v. Dep't of State, Civil Action 19- 2856 at 11
(D.D.C. Feb. 4, 2022); CAIR v. Trump, 471 F. Supp. 3d 25, 54 (D.D.C.
2020).
\8\ 618 F.3d 172, 202 (2d Cir. 2010).
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This rule governs the registration of permanent resident status for
children born to foreign government employees who previously would have
been considered United States citizens at birth. Because these children
are born in the United States to foreign government employees, the
status of these children has international implications, including
likely significant reciprocal consequences for the treatment of
children of U.S. diplomatic, government, and international organization
employees overseas. In the absence of a rule governing the status of
these children, these children may have a difficult time traveling
within and outside of the United States with their parents if they do
not possess a passport or a visa and may otherwise be subject to
removal from the United States. Because this rule regulates the
treatment of children of foreign government employees which implicates
various diplomatic and international agreements and arrangements
between countries, it directly involves a foreign affairs function. In
the absence of DHS moving expeditiously to address the status of
children of foreign government employees born in the United States,
other countries with whom the United States has reciprocal arrangements
regarding diplomatic, government, and international organization
personnel may change their own rules in a way that adversely affects
the ability of U.S. personnel to engage with foreign partners and
conduct the work of foreign and international relations. Additionally,
because this rule pertains to the status of children born to foreign
government employees in the United States, the reliance on the foreign
affairs exception is also supported by the DOS Determination: Foreign
Affairs Functions of the United States, 90 FR 12200 (Mar. 14, 2025).\9\
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\9\ ``I hereby determine that all efforts, conducted by any
agency of the federal government, to control the status, entry, and
exit of people, and the transfer of goods, services, data,
technology, and other items across the borders of the United States,
constitute a foreign affairs function of the United States under the
Administrative Procedure Act, 5 U.S.C. 553, 554.''
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2. Good Cause
In addition to the foreign affairs exception, DHS may forgo notice
and comment rulemaking when the agency ``for good cause finds . . .
that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' See 5 U.S.C.
553(b)(B). Likewise, section 553(d)'s requirement of 30-day delayed
effective date may be waived by the agency for good cause found and
published with the rule. See 5 U.S.C. 553(d)(3).
The ``impracticable'' prong of the good cause exception excuses
notice and comment in emergency situations.\10\ Although the good cause
exception is ``narrowly construed and only
[[Page 57253]]
reluctantly countenanced,'' \11\ it is an important safety valve to be
used where delay caused by notice and comment would do real harm (even
absent an emergency situation).\12\ Whether undergoing notice and
comment rulemaking is impracticable is based on the particular facts
and context present with respect to a specific rulemaking.\13\ In this
case, DHS finds that engaging in notice and comment rulemaking would be
impracticable 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. Therefore, DHS is aiming to put in place
a procedure for children born on or after the effective date of this
rule to have the ability to voluntarily register as lawful permanent
residents as soon as possible in order to ensure that they have a
lawful status in the United States.
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\10\ See Nat. Res. Council, Inc. v. Evans, 316 F.3d 904, 911
(9th Cir. 2003) (``Emergencies, though not the only situations
constituting good cause, are the most common'').
\11\ See State of New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C.
Cir. 1980); see also Am. Fed. Gov't Emps. v. Block, 655 F.2d 1153,
1156 (D.C. Cir. 1981) (``As the legislative history of the APA makes
clear, moreover, the exceptions at issue here are not `escape
clauses' that may be arbitrarily utilized at the agency's whim.
Rather, use of these exceptions by administrative agencies should be
limited to emergency situations . . .'').
\12\ See U.S. v. Dean, 604 F.3d 1275, 1379 (11th Cir. 2010);
United States Steel Corp. v. United States Environmental Protection
Agency, 595 F.2d 207, 214 (5th Cir. 1979). See also, Mack Trucks,
Inc. v. EPA, 682 F.3d 87, 93-94 (D.C. Cir. 2012), Jifry v. FAA, 370
F.3d 1174, 1179 (D.C. Cir. 2004).
\13\ See Malek-Marzban v. Immigr. & Naturalization Serv., 653
F.2d 113, 116 (4th Cir. 1981) (Upholding the agency's finding that
notice and comment procedures were impracticable, unnecessary, and
contrary to the public interest when swift action was needed to
regulate the presence of aliens in light of the urgency of the
international crisis.'').
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The good cause exception applies when affording prior notice and
comment would be contrary to the public interest. See 5 U.S.C. 553(b).
This prong is met when the ordinary procedures under the APA--generally
presumed to serve the public interest--would in fact harm the interest
of the public.\14\ The exception is appropriately invoked when the
timing and the disclosure requirement of the usual procedures would
defeat the purpose of the proposal and harm the public interest.\15\
This prong of the good cause exception is closely related to the
impracticable prong. As discussed in the context of the foreign affairs
exception, undergoing notice and comment rulemaking and a delayed
effective date would be contrary to public interest because leaving
children of foreign government employees without a clear path to
register lawful immigration status in the United States would affect
those children and their parents and in turn would likely impact the
treatment of similarly situated United States diplomats, government and
international organization employees and their children abroad. For
these reasons, DHS is invoking the good cause exceptions to forgo
notice and comment rulemaking and a delayed effective date.
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\14\ See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 95 (D.C. Cir.
2012).
\15\ Nat. Res. Def. Council v. Nat'l Highway Traffic Safety
Admin., 894 F.3d 95, 114 (2d Cir. 2018) (``Of course, since notice
and comment are regarded as beneficial to the public interest, for
the exception to apply, the use of notice and comment must actually
harm the public interest'').
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B. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 13563 (Improving Regulation and Regulatory Review), and Executive
Order 14192 (Unleashing Prosperity Through Deregulation)
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. E.O. 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. E.O. 14192 directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
The Office of Management and Budget (OMB) has designated this rule
a ``significant regulatory action'' under section 3(f) of E.O. 12866,
although not economically significant under section 3(f)(1).
Accordingly, the rule has been reviewed by OMB. This rule is not an
E.O. 14192 regulatory action because it is being issued with respect to
an immigration-related function of the United States. The rule's
primary direct purpose is to implement or interpret the immigration
laws of the United States (as described in INA 101(a)(17), 8 U.S.C.
1101(a)(17)) or any other function performed by the U.S. Federal
Government with respect to aliens.\16\
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\16\ See OMB Memorandum M-25-20, Guidance Implementing Section 3
of Executive Order 14192, titled ``Unleashing Prosperity Through
Deregulation'' (Mar. 26, 2025), <a href="https://www.whitehouse.gov/wp-content/uploads/2025/02/M-25-20-Guidance-Implementing-Section-3-of-Executive-Order-14192-Titled-Unleashing-Prosperity-Through-Deregulation.pdf">https://www.whitehouse.gov/wp-content/uploads/2025/02/M-25-20-Guidance-Implementing-Section-3-of-Executive-Order-14192-Titled-Unleashing-Prosperity-Through-Deregulation.pdf</a>.
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DHS is updating its regulations to provide a way for additional
children who are born in the United States, but are not U.S. citizens,
to register as lawful permanent residents. Specifically, this IFR
impacts children born in the United States where neither parent is a
U.S. citizen and at least one parent is a foreign government employee.
This rule amends the existing regulations at 8 CFR 101.3, 101.4, and
264.2 to apply more broadly to children born to certain foreign
government employees.
DHS is extending the existing process for registering permanent
residence (Form I-485, Application to Register Permanent Residence or
Adjust Status) to other children of foreign government employees who
lack birthright citizenship. DHS is also making related updates to
alien registration requirements to reflect this expanded category. The
changes in this rule are discussed in depth above, in Section III--
Discussion of Interim Final Rule.
The impacted population of this rule is children born in the United
States to certain foreign government employees who would not acquire
U.S. citizenship at birth unless at least one parent is a U.S. citizen.
This includes children of foreign diplomats, certain embassy or
consulate employees, foreign government officials, and employees of
international organizations with international-organization immunity.
DHS is unable to quantify this new population of individuals who will
be impacted by the rule because USCIS has not historically tracked this
population as a distinct, structured category. The DOS Office of
Foreign Missions reports that the United States hosts more than 124,000
foreign mission members and dependents.\17\ However, DHS is unable to
use this figure to estimate the population affected by this rule
because available data does not identify how many foreign government
employees have a U.S. citizen spouse, depart the United States prior to
the birth of a child, or depart the United States after the birth of a
child and do not return. Accordingly, DHS lacks sufficient information
to more accurately estimate the number of U.S. born children who would
be affected by this rule. Therefore, DHS discusses the affected
population of this rule qualitatively.
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\17\ See About Us--Office of Foreign Missions, Department of
State, <a href="https://2021-2025.state.gov/about-us-office-of-foreign-missions/">https://2021-2025.state.gov/about-us-office-of-foreign-missions/</a> (last visited Aug. 31, 2026).
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The changes in this rule will subject newly affected individuals to
immigration-related registration and documentation requirements that
would not apply to them under the current regulations. Newly affected
individuals may incur costs associated with alien
[[Page 57254]]
registration requirements using Form G-325R, Biographic Information
(Registration) \18\ and for those who voluntarily choose to do so,
registering as lawful permanent residents using Form I-485.
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\18\ See G-325R, Biographic Information (Registration) <a href="https://www.uscis.gov/forms/all-forms/g-325r">https://www.uscis.gov/forms/all-forms/g-325r</a> (last visited Aug. 27, 2026).
Individuals may also be required to attend a biometrics services
appointment according to the Alien Registration Form and Evidence of
Registration Final Rule (91 FR 39248).
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The newly impacted alien population may incur costs associated with
completing and filing Form G-325R. These costs include the time
required for a parent or legal guardian to create an online account,
gather the necessary information, complete and submit the form, and
comply with any applicable biometric requirements. For children under
14 years of age, a parent or legal guardian must ensure that the child
is registered and must create an individual USCIS online account and
submit Form G-325R on the child's behalf. Individuals must re-register
and provide fingerprints within 30 days after reaching the age of 14.
USCIS' current estimated time burden for an applicant to complete Form
G-325R is 2.5 hours. This time burden is not expected to change as a
result of this rule and Form G-325R currently has no filing fee.
DHS calculates the costs to complete and submit Form G-325R as well
as the cost to submit the required biometrics as follows. For the
affected population, we use the mean hourly wage of all occupations
($33.54).\19\ To estimate total compensation, we multiply the mean
hourly wage by the compensation to wage ratio for civilian employees
(1.46).\20\ This results in an estimated mean hourly total compensation
of $48.97.\21\ The opportunity cost of time to complete Form G-325R is
$122.43 at the total compensation rate.\22\
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\19\ See Bureau of Labor Statistics, U.S. Department of Labor
(DOL), ``Occupational Employment and Wages News Release--
Occupational Employment and Wages--May 2025'' Table 1. National
employment and wage data from the Occupation employment and Wage
Statistics survey by occupation, May 2025. All Occupations--Mean
Hourly Wage, <a href="https://www.bls.gov/news.release/pdf/ocwage.pdf">https://www.bls.gov/news.release/pdf/ocwage.pdf</a> (last
visited Aug. 28, 2026).
\20\ The benefits-to-wage multiplier is calculated as follows:
($49.32 Total Employee Compensation per hour) / ($33.72 Wages and
Salaries per hour) = 1.46 (rounded). See U.S. Dep't of Labor, Bureau
of Labor Statistics, Economic News Release, Employer Cost for
Employee Compensation--March 2026, Table 1 (June 12, 2026), <a href="https://www.bls.gov/news.release/pdf/ecec.pdf">https://www.bls.gov/news.release/pdf/ecec.pdf</a>. Employer costs per hour
worked for employee compensation and costs as a percent of total
compensation: Civilian workers, by major occupational and industry
group.
\21\ Calculation: $33.54 x 1.46 =$48.97 loaded wage rate.
\22\ Calculation: 2.5 hours x $48.97 loaded wage rate = $122.43
(rounded) opportunity cost of time to file Form G-325R.
---------------------------------------------------------------------------
To estimate the costs of submitting biometrics, we consider the
time burden to submit biometrics, the time burden to travel to and from
an Application Support Center (ASC), and the vehicle costs of traveling
to and from an ASC. The estimated time burden to submit biometrics for
Form G-325R is 1.17 hours.\23\ The estimated opportunity cost of time
to submit biometrics is $57.29.\24\ The estimated average travel
distance to and from an ASC is 50 miles; the expected total travel time
is 2.5 hours.\25\ The estimated opportunity cost of time to travel to
and from an ASC is $122.43.\26\ The vehicle costs of traveling to and
from an ASC are based on the General Service Administration's per mile
reimbursement rate for traveling in a privately owned vehicle--
currently $0.76 per mile.\27\ The estimated vehicle costs of traveling
to and from an ASC are $38.00.\28\ The estimated cost to submit
biometrics at an ASC is $217.72.\29\ The estimated total per person
compliance cost to register and submit biometrics for Form G-325R is
$340.15.\30\
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\23\ The estimated time burden to file Form G-325R can be found
in Supporting Statement A submitted with the revision package to OMB
on August 22, 2025 at <a href="https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202508-1615-002">https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202508-1615-002</a>.
\24\ Calculation: 1.17 hours to submit biometrics * $48.97
loaded wage rate = $57.29 (rounded).
\25\ These are the same parameters used in other USCIS rules.
See, e.g., ``Provisional Unlawful Presence Waivers of
Inadmissibility for Certain Immediate Relatives,'' 78 FR 536, 578
(Jan. 3, 2013).
\26\ Calculation: 2.5 hours to travel to and from an ASC *
$48.97 loaded wage rate = $122.43 (rounded).
\27\ For use of a privately owned automobile, see General
Services Administration, ``Privately Owned Vehicle (POV) Mileage
Reimbursement Rate,'' <a href="https://www.gsa.gov/travel/plan-a-trip/transportation-airfare-rates-pov-rates/pov-mileage-reimbursement">https://www.gsa.gov/travel/plan-a-trip/transportation-airfare-rates-pov-rates/pov-mileage-reimbursement</a>
(last updated Jul. 30, 2026).
\28\ Calculation: $0.76 cost per vehicle mile * 50 miles to and
from an ASC = $38.00 vehicle costs.
\29\ Calculation: $38 vehicle costs to travel to and from an ASC
+ $122.43 opportunity cost of time to travel to and from an ASC +
$57.29 opportunity cost of time to submit biometrics = $217.72.
\30\ $122.43 opportunity cost of time to complete and submit
form + $217.72 costs to submit biometrics at an ASC = $340.15.
---------------------------------------------------------------------------
The rule will also make newly affected individuals eligible to
voluntarily file Form I-485 to register as lawful permanent residents.
If such an individual is under eighteen years old at the time of
filing, his or her parent or legal guardian shall prepare and sign Form
I-485 on the applicant's behalf. Individuals who choose this option
will incur the applicable filing costs to gather the necessary
information, complete and submit the form, and comply with any
applicable biometric requirements. USCIS' current estimated time
burdens for an applicant to complete Form I-485 are 6.86 hours (paper
and PDFi) and 6.09 hours (e-file). These time burdens are not expected
to change as a result of this rule.\31\
DHS calculates the total costs to complete and submit Form I-485 as
well as submit the required biometrics as follows. For the affected
population, we use the mean hourly wage of all occupations
($33.54).\32\ To estimate total compensation, we multiply the mean
hourly wage by the compensation to wage ratio for civilian employees
(1.46).\33\ This results in an estimated mean hourly total compensation
of $48.97.\34\ The opportunity cost of time to complete Form I-485 is
$335.93 (paper and PDFi) and $298.23 (e-file) at the total compensation
rate.\35\
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\32\ See Bureau of Labor Statistics, U.S. Department of Labor
(DOL), ``Occupational Employment and Wages News Release--
Occupational Employment and Wages--May 2025'' Table 1. National
employment and wage data from the Occupation employment and Wage
Statistics survey by occupation, May 2025. All Occupations--Mean
Hourly Wage, <a href="https://www.bls.gov/news.release/pdf/ocwage.pdf">https://www.bls.gov/news.release/pdf/ocwage.pdf</a> (last
visited Aug. 28, 2026).
\33\ The benefits-to-wage multiplier is calculated as follows:
($49.32 Total Employee Compensation per hour) / ($33.72 Wages and
Salaries per hour) = 1.46 (rounded). See U.S. Dep't of Labor, Bureau
of Labor Statistics, Economic News Release, Employer Cost for
Employee Compensation--March 2026, Table 1 (June 12, 2026), <a href="https://www.bls.gov/news.release/pdf/ecec.pdf">https://www.bls.gov/news.release/pdf/ecec.pdf</a>. Employer costs per hour
worked for employee compensation and costs as a percent of total
compensation: Civilian workers, by major occupational and industry
group.
\34\ Calculation: $33.54 x 1.46 =$48.97 loaded wage rate.
\35\ Calculation: 6.09 hours x $48.97 loaded wage rate = $298.23
(rounded) opportunity cost of time to file Form I-485 (e-file) and
6.86 hours x $48.97 loaded wage rate = $335.93 (rounded) opportunity
cost of time to file Form I-485 (paper and PDFi).
---------------------------------------------------------------------------
To estimate the costs of submitting biometrics, we consider the
time burden to submit biometrics, the time burden to travel to and from
an ASC, and the vehicle costs of traveling to and from an ASC. The
estimated time burden to submit biometrics for Form I-485 is 1.17
hours.\36\ The estimated opportunity cost of time to submit biometrics
is $57.29.\37\ The estimated average travel distance to and from an ASC
is 50 miles; the expected total travel time is 2.5 hours.\38\ The
estimated opportunity cost of time to travel to and from an ASC is
$122.43.\39 \The vehicle costs of traveling to and from an ASC are
based on the
[[Page 57255]]
General Service Administration's per mile reimbursement rate for
traveling in a privately owned vehicle--currently $0.76 per mile.\40
\The estimated vehicle costs of traveling to and from an ASC are
$38.00.\41\ The estimated cost to submit biometrics at an ASC is
$217.72.\42\ Form I-485 currently has filing fees of $1,440 paper
filing (paper and PDFi) and $1,390 (e-file).\43\ DHS estimates that the
total per person cost to complete and submit a form including filing
fees and submit biometrics for Form I-485 are $1,993.65 (paper and
PDFi) and $1,905.95 (e-file).\44\ For purposes of this analysis, DHS
treats Form G-325R and Form I-485 as alternative pathways for initial
registration, although some individuals may later choose to file Form
I-485 after registering through Form G-325R.
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\36\ The estimated time burden to submit biometrics for Form I-
485 can be found in the form instructions at <a href="https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf">https://www.uscis.gov/sites/default/files/document/forms/i-485instr.pdf</a> (last visited Aug.
28, 2026).
\37\ Calculation: 1.17 hours to submit biometrics * $48.97
loaded wage rate = $57.29 (rounded).
\38\ These are the same parameters used in other USCIS rules.
See, e.g., ``Provisional Unlawful Presence Waivers of
Inadmissibility for Certain Immediate Relatives,'' 78 FR 536, 578
(Jan. 3, 2013).
\39\ Calculation: 2.5 hours to travel to and from an ASC *
$48.97 loaded wage rate = $122.43 (rounded).
\40\ For use of a privately owned automobile, see General
Services Administration, ``Privately Owned Vehicle (POV) Mileage
Reimbursement Rate,'' <a href="https://www.gsa.gov/travel/plan-a-trip/transportation-airfare-rates-pov-rates/pov-mileage-reimbursement">https://www.gsa.gov/travel/plan-a-trip/transportation-airfare-rates-pov-rates/pov-mileage-reimbursement</a>
(last updated Jul. 30, 2026).
\41\ Calculation: $0.76 cost per vehicle mile * 50 miles to and
from an ASC = $38.00 vehicle costs.
\42\ Calculation: $38 vehicle costs to travel to and from an ASC
+ $122.42 opportunity cost of time to travel to and from an ASC +
$57.29 opportunity cost of time to submit biometrics = $217.72.
\43\ USCIS, G-1055, Fee Schedule, (Edition 5/29/2026), <a href="https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf">https://www.uscis.gov/sites/default/files/document/forms/g-1055.pdf</a> (last
visited Aug. 28, 2026), see p. 15-16, Form I-485, Application to
Register Permanent Residence or Adjust Status.
\44\ Calculation: Form I-485 (paper and PDFi) --$335.93
opportunity cost of time to complete and submit form + $217.72 costs
to submit biometrics at an ASC + $1,440 filing fee = $1,993.65 Form
I-485 (e-file) -- $298.23 opportunity cost of time to complete and
submit form + $217.72 costs to submit biometrics at an ASC + $1,390
filing fee = $1,905.95.
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The benefits of this rule include establishing a consistent
regulatory framework for registering lawful permanent resident status
of U.S.-born children of foreign government employees. It will provide
affected individuals and federal agencies with clearer guidance on
citizenship recognition, lawful permanent resident registration, and
alien registration requirements. By extending the existing Form I-485
process to the newly impacted alien population, the rule will also
provide eligible individuals with an established pathway to voluntarily
register as lawful permanent residents.
C. Regulatory Flexibility Act (RFA)
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104-121 (Mar. 29, 1996), requires Federal agencies
to consider the potential impact of regulations on small entities
during the development of their rules to determine whether there will
be a significant economic impact on a substantial number of small
entities. The term ``small entities'' comprises small businesses, not-
for-profit organizations that are not dominant in their fields, and
governmental jurisdictions with populations of less than 50,000. An
``individual'' is not considered a small entity and therefore a rule's
impact on individuals is not considered for RFA purposes.\45\ See 5
U.S.C. 601, 632. In addition, the courts have held that the RFA
requires an agency to perform a regulatory flexibility analysis of
small entity impacts only when a rule directly regulates small
entities.\46\ Consequently, a rule's indirect impacts on a small entity
is not considered for RFA purposes.
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\45\ See Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C.
601 note). A small business is defined as any independently owned
and operated business not dominant in its field that qualifies as a
small business per the Small Business Act, 15 U.S.C. 632.
\46\ See Office of Advocacy, Small Business Administration, ``A
Guide for Government Agencies: How to Comply with the Regulatory
Flexibility Act'' 22 (Aug. 2017) <a href="https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf">https://advocacy.sba.gov/wp-content/uploads/2019/06/How-to-Comply-with-the-RFA.pdf</a>.
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This rule does not directly regulate small entities and is not
expected to have a direct effect on them. The rule regulates
individuals, and individuals are not defined as ``small entities'' by
the RFA. Based on the information presented above in the RIA and
throughout the preamble, DHS certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
D. Congressional Review Act (CRA)
The Congressional Review Act (CRA) was included as part of the
SBREFA Subtitle E, Public Law 104-121, tit. II, 110 Stat. 847 (Mar. 29,
1996). This IFR is not a major rule as defined under the CRA in 5
U.S.C. 804(2). This rule will not result in an annual effect on the
economy of $100 million or more. DHS has complied with the CRA's
reporting requirements and has sent this rule to Congress and to the
Comptroller General as required by 5 U.S.C. 801(a)(1).
E. Unfunded Mandates Reform Act of 1995 (UMRA)
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed rule that includes any
Federal mandate that may result in a $100 million or more expenditure
(adjusted annually for inflation) in any one year by State, local, and
Tribal governments, in the aggregate, or by the private sector. See 2
U.S.C. 1532(a).
The inflation adjusted value of $100 million in 1995 is
approximately $211 million in 2025 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\47\ This rule does not contain such a
mandate, because it does not impose any enforceable duty upon any other
level of government or private sector entity. Amending regulations in
this rule does not result in any expenditures by the State, local, or
Tribal governments, or by the private sector. The requirements of title
II of UMRA, therefore, do not apply, and DHS has not prepared a
statement under UMRA.
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\47\ See DOL, BLS, Historical Consumer Price Index for All Urban
Consumers (CPI-U): U.S. city average, all items, by month, <a href="https://data.bls.gov/timeseries/CUUR0000SA0?years_option=all_years">https://data.bls.gov/timeseries/CUUR0000SA0?years_option=all_years</a> (last
visited Aug. 24, 2026). Calculation of inflation: (1) Calculate the
average monthly CPI-U for the reference year (1995) and the current
year (2025); (2) Subtract reference year CPI-U from current year
CPI-U; (3) Divide the difference of the reference year CPI-U and
current year CPI-U by the reference year CPI-U; (4) Multiply by 100
= [(Average monthly CPI-U for 2025-Average monthly CPI-U for 1995) /
(Average monthly CPI-U for 1995)] x 100 = [(321.943-152.383)/
152.383] = (169.560/152.383) = 1.113 x 100 = 111.272 percent = 111
percent (rounded). Calculation of inflation-adjusted value: $100
million in 1995 dollars x 2.11 = $211 million in 2025 dollars.
---------------------------------------------------------------------------
F. Executive Order 13132 (Federalism)
This rule does not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of E.O.
13132, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This interim final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Family Assessment
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
Agencies must assess whether the regulatory action: (1) impacts the
[[Page 57256]]
stability or safety of the family, particularly in terms of marital
commitment; (2) impacts the authority of parents in the education,
nurture, and supervision of their children; (3) helps the family
perform its functions; (4) affects disposable income or poverty of
families and children; (5) if the regulatory action financially impacts
families, are justified; (6) may be carried out by State or local
government or by the family; and (7) establishes a policy concerning
the relationship between the behavior and personal responsibility of
youth and the norms of society. If the determination is affirmative,
then the Agency must prepare an impact assessment to address criteria
specified in the law. DHS has determined that this final rule will not
affect family well-being and has not prepared the impact assessment
statement.
I. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This interim final rule would not have Tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian Tribes, on the relationship between the Federal
Government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes.
J. National Environmental Policy Act (NEPA)
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.,
applies to them and, if so, what degree of analysis is required. DHS
Directive 023-01 Rev. 01 and Instruction Manual 023-01-001-01 Rev. 01
(Instruction Manual) establish the policies and procedures that DHS and
its components use to comply with NEPA, 42 U.S.C. 4321 et seq.
NEPA allows Federal agencies to establish categories of actions as
categorical exclusions that experience has shown do not, individually
or cumulatively, have a significant effect on the human environment
and, therefore, do not require an environmental assessment (EA) or
environmental impact statement (EIS). See 42 U.S.C. 4336(a)(2),
4336e(1). The Instruction Manual, Appendix A lists the DHS Categorical
Exclusions.
Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect. See Instruction
Manual 023-01 at V.B(2)(a)-(c).
With this interim final rule, DHS is amending the regulations that
permit children born in the United States to ``foreign diplomatic
officers'' to register as lawful permanent residents by extending the
same treatment to children born in the United States to parents who are
``foreign government employees.''
NEPA allows Federal agencies to establish categorical exclusions
(CATEXs) for activities that experience has shown do not, individually
or cumulatively, have a significant effect on the human environment.
DHS's NEPA implementing procedures, including Appendix A of the
Instruction Manual, list DHS's categorical exclusions. See Instruction
Manual 023-01, Appendix A. DHS has reviewed the rule and finds that the
rule is categorically excluded under CATEX A3. CATEX A3 pertains to the
promulgation of rules that are, among others, strictly administrative
or procedural in nature and those that interpret or amend an existing
regulation without changing its environmental effect. This final rule
amends existing regulations to expand the population of children born
in the United States that may register as lawful permanent residents.
These children are not considered United States citizens. This change
is strictly administrative in nature and does not change the
environmental effect of the existing regulation.
The rule is not part of a larger federal action and does not
present extraordinary circumstances that create the potential for a
significant environmental effect.
Accordingly, DHS finds that the rule clearly fits within
categorical exclusion A3 established in DHS's NEPA implementing
procedures, and no further NEPA analysis is required.
K. Paperwork Reduction Act (PRA)
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3512, DHS
must submit to Office of Management and Budget (OMB), for review and
approval, any reporting requirements inherent in a rule, unless they
are exempt. This rule requires the use of Form I-485, Application to
Register Permanent Residence or Adjust Status, and Form G-325R,
Biographic Information (Registration). Consistent with 5 CFR 1320.13,
USCIS submitted a request for emergency authorization of the required
changes for a period of 6 months, for the revised information
collections. Table 1 below lists the information collections that are
part of this rulemaking.
Table 1--Information Collections
----------------------------------------------------------------------------------------------------------------
OMB control No. Form No. Form name Type of PRA action
----------------------------------------------------------------------------------------------------------------
1615-0023..................... I-485....................... Application to Register Revision of a Currently
Permanent Residence or Approved Collection.
Adjust Status.
1615-0166..................... G-325R...................... Biographic Information Revision of a Currently
(Registration). Approved Collection.
----------------------------------------------------------------------------------------------------------------
USCIS Form I-485 (OMB Control Number 1615-0023)
DHS revised Form I-485, Application to Register Permanent Residence
or Adjust Status, to broaden language referring to children ``born
under diplomatic status'' and instead refer to children ``born to
foreign government employees'' and add instructional language
concerning which children of foreign government employees may file Form
I-485 to register as lawful permanent residents. DHS has reported an
increase in the estimated number of annual respondents to capture the
newly affected alien population who may file this information
collection.
USCIS Form G-325R (OMB Control Number 1615-0166)
DHS revised Form G-325R, Biographic Information (Registration), to
account for children born in the United States who do not acquire U.S.
citizenship at birth and who are subject to 262 of the Act, 8 U.S.C.
1302, but do not register as lawful permanent residents under the
amended
[[Page 57257]]
regulations at 8 CFR 101.3 and 8 CFR 264.2. DHS has reported an
increase in the estimated number of annual respondents to capture the
newly affected alien population who may file this information
collection.
List of Subjects
8 CFR Part 101
Immigration.
8 CFR Part 264
Aliens, Reporting and recordkeeping requirements.
Accordingly, DHS amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 101--PRESUMPTION OF LAWFUL ADMISSION
0
1. The authority citation for part 101 continues to read as follows:
Authority: 8 U.S.C. 1103, 8 CFR part 2.
0
2. Revise Sec. 101.3 to read as follows:
Sec. 101.3 Creation of record of lawful permanent resident status for
persons born to foreign government employees in the United States.
(a) Person born to a foreign government employee --(1) Status of
person. A person born in the United States to a foreign government
employee is not subject to the jurisdiction of the United States for
purposes of birthright citizenship, unless at least one parent of the
person is a United States citizen. That person is not a United States
citizen under the Fourteenth Amendment to the Constitution. Such a
person may be considered a lawful permanent resident at birth.
(2) Definition of foreign government employee. (i) ``Foreign
government employee'' means:
(A) A foreign diplomatic officer accredited to the United States.
This includes ambassadors, ministers, charg[eacute]s d'affaires,
counselors, secretaries and attach[eacute]s of embassies and legations
as well as members of the Delegation of the Commission of the European
Communities. The term also includes individuals with comparable
diplomatic status and immunities who are accredited to the United
Nations or to the Organization of American States, and other
individuals who are also accorded comparable diplomatic status;
(B) A person employed by a foreign embassy or consulate who is a
national of that foreign country not covered in paragraph (a)(2)(i)(A)
of this section;
(C) A person employed by a foreign government in an official
capacity not covered in paragraphs (a)(2)(i)(A) and (B) of this
section; and
(D) A person employed by an international organization that
possesses international-organization immunity not covered in paragraph
(a)(2)(i)(A) of this section.
(ii) Except if the foreign government employee falls within the
definition under paragraph (a)(2)(i)(A) of this section, the definition
of ``foreign government employee'' does not include:
(A) Personal employees or attendants of foreign government or
international organization officials who are not employed by the
foreign government, including personal assistants, chauffeurs, or
housecleaners;
(B) Employees of state-owned enterprises in a status other than A
or G nonimmigrant classifications;
(C) Third-country nationals working for a foreign government,
including at a foreign embassy or consulate;
(D) Employees of international organizations beyond those
international organizations designated by executive order as enjoying
immunity in the United States under the International Organizations
Immunities Act;
(E) Contractors of foreign missions, international organizations,
or governments in a status other than A or G nonimmigrant
classifications; and
(F) Foreign government employees visiting the United States in a
personal rather than an official capacity.
(b) Voluntary registration as lawful permanent resident of person
born to foreign government employee. Registration as a lawful permanent
resident under this regulation is voluntary. However, a person born in
the United States who is not a United States citizen is subject to
section 262 of the Act and must register as an alien when required to
do so by the Act, unless he or she has the rights, privileges,
exemptions, and immunities which may be claimed by a foreign diplomatic
officer. Persons who are required to register as an alien may do so
either under this regulation and Sec. 264.2 of this chapter (if
otherwise eligible) or under Sec. 264.1 of this chapter.
(c) Retention of lawful permanent residence. To be eligible for
lawful permanent resident status under paragraph (a) of this section,
an alien must establish that he/she has not abandoned his/her residence
in the United States. One of the tests for retention of lawful
permanent resident status is continuous residence, not continuous
physical presence, in the United States. Such a person will not be
considered to have abandoned his/her residence in the United States
solely by having been admitted to the United States in a nonimmigrant
classification after a temporary stay in a foreign country or countries
on one or several occasions.
0
3. Revise Sec. 101.4 to read as follows:
Sec. 101.4 Registration procedure.
The procedure for an application for creation of a record of lawful
permanent residence and a Permanent Resident Card, Form I-551, for a
person eligible for presumption of lawful admission for permanent
residence under Sec. 101.1 or Sec. 101.2 or for lawful permanent
residence as a person born in the United States to a foreign government
employee under Sec. 101.3 is described in Sec. 264.2 of this chapter.
PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED
STATES
0
3. The authority citation for part 264 continues to read as follows:
Authority: 8 U.S.C. 1103, 1201, 1302-1305; 8 CFR part 2.
0
4. Amend Sec. 264.2 by revising paragraphs (a), (c)(2), (g), and
(h)(2) to read as follows:
Sec. 264.2 Application for creation of record of permanent
residence.
(a) Jurisdiction. An applicant who believes that he/she is eligible
for presumption of lawful admission for permanent residence under Sec.
101.1 or Sec. 101.2 of this chapter or for lawful permanent residence
as a person born in the United States to a foreign government employee
under Sec. 101.3 of this chapter shall submit his/her application for
creation of a record of lawful permanent residence on Form I-485 in
accordance with the instructions on the form and paragraph (c) of this
section. The applicant must be physically present in the United States
at the time of submission of his/her application.
* * * * *
(c) * * *
(2) Lawful permanent residence as a person born in the United
States to a foreign government employee. An applicant who believes that
he/she is eligible for lawful permanent residence as a person born in
the United States to a foreign government employee under Sec. 101.3 of
this chapter shall submit the following:
* * * * *
(g) Decision. The decision regarding creation of a record of lawful
permanent residence for an alien eligible for presumption of lawful
admission for permanent residence or for a person born in the United
States to a foreign
[[Page 57258]]
government employee will be made by the district director having
jurisdiction over the applicant's place of residence.
(h) * * *
(2) Lawful permanent residence as a person born in the United
States to a foreign government employee. If the application is granted,
the applicant's permanent residence will be recorded as of his/her date
of birth.
* * * * *
Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-18345 Filed 9-4-26; 4:15 pm]
BILLING CODE 9111-97-P
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</html>Indexed from Federal Register on September 9, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.