Census Bureau Proposes Counting Only Citizens and Green Card Holders Toward House Seats After 2030

The Census Bureau has proposed changing who counts when House seats are divided among the states after the 2030 census: U.S. citizens and green card holders would be included, and under the proposed rule text, every other foreign national would not. That line reaches well past people in the country unlawfully. It would also leave out H-1B workers, international students and others living here legally on temporary status, a point a recent Congressional Research Service analysis for lawmakers makes plainly. The public now has until Nov. 2 to comment, after the bureau pushed back its original Oct. 13 deadline.

The proposal, signed by Commerce Secretary Howard Lutnick and published Sept. 10, would replace the 2020 residence rules, which counted citizens of other countries where they usually live and sleep, whatever their immigration status. With the comment window still open, how the bureau treats lawful noncitizens is the question most worth watching.

Where the bureau draws the line, and who is left on the other side

Proposed 15 CFR 60.4 counts “citizens of foreign countries who are also either citizens or lawful permanent residents of the United States” and excludes “all other citizens of foreign countries as of April 1.” The preamble describes the excluded group as “illegal aliens and aliens whose legal status is less durable and indefinite in length than lawful permanent resident status.” No visa category is named, but read as written, H-1B and L-1 workers, F-1 students, TPS holders, DACA recipients and parolees fall on the excluded side.

The hardest cases are refugees and asylees, whose status has no expiration date but who are not yet permanent residents. The bureau invites comment on “whether other forms of legal status are materially similar to lawful permanent resident status,” which leaves their treatment open. The CRS report (IN12741, dated Sept. 28) notes that the exclusion “would potentially cover not only persons unlawfully present in the United States.”

The proposal changes no one’s immigration status, work authorization or benefits; it governs only whom the bureau tallies for apportionment, and residents would still be required to answer the census under 13 U.S.C. 221. The bureau says it “could” add a legal-status question but proposes no rule text for one. It is instead weighing its “enormously broad access to administrative records,” including DHS, State, Treasury and HHS files and commercial data, to determine status.

DHS’s Office of Homeland Security Statistics estimated 12.7 million lawful permanent residents as of Jan. 1, 2023, a group the rule would keep in the count, and 11 million unauthorized immigrants as of Jan. 1, 2022. Neither figure includes temporary visa holders. Roll Call reported that a 2020 Pew Research Center analysis found that excluding unauthorized immigrants alone would have shifted three House seats, and noted that the estimate did not account for leaving out lawful temporary residents.

A constitutional question the Supreme Court has never answered

The Fourteenth Amendment apportions House seats by “counting the whole number of persons in each State.” The bureau argues that unauthorized immigrants “are not true inhabitants, members of the body politic, or persons with a ‘usual residence,'” and alternatively that excluding them falls within the Commerce Secretary’s discretion under 13 U.S.C. 141 and Franklin v. Massachusetts (1992).

The merits have never been decided. In 2020, President Trump directed that unauthorized immigrants be left out of the apportionment base; the Supreme Court dismissed the challenge in Trump v. New York as premature, and President Biden revoked the directive in January 2021. Supporters of the new approach include President Trump, who wrote on Truth Social that “People who are in our Country illegally WILL NOT BE COUNTED IN THE CENSUS,” according to Roll Call, and Sen. Bill Hagerty, R-Tenn., who has sponsored legislation to exclude unauthorized immigrants. New York Attorney General Letitia James said her office is “exploring our legal options,” the outlet reported.

Our read: extending the exclusion to lawful temporary residents may prove the most contested part of the plan. The 2020 directive was limited to people without legal status. The bureau’s reasoning about a “sufficient tie and allegiance” is aimed at that group, and it fits less easily a worker admitted for up to six years, a student enrolled for four or a refugee admitted for resettlement. Expect commenters to press the “materially similar” question hard, and expect the final rule’s answer to shape any lawsuit. Accuracy is the other pressure point: CRS suggests Congress examine which commercial data the bureau would use to sort residents by status.

Dates to watch

Nov. 2, 2026: Comment deadline, docket USBC-2026-0628 on regulations.gov.
Final rule: No date has been set; legal challenges would likely follow publication.
April 1, 2030: Census Day. State population totals for apportionment are due to the President by Dec. 31, 2030.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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