A Census Rule Would Exclude Noncitizens Without Green Cards From House Counts. It Leaves Out How to Find Them.

If the Census Bureau finalizes its proposed residence criteria for 2030, the population count that divides House seats among the states would include U.S. citizens and green card holders and leave out every other foreign citizen living in the country. Nothing takes effect yet. The Commerce Department published the proposal on September 10 as two new parts of Title 15 of the Code of Federal Regulations, and it is taking public comments until November 2.

What the text says about who is counted

Section 60.4 of the proposed Part 60 sorts foreign citizens two ways. Those who are also U.S. citizens or lawful permanent residents on April 1 of the census year are counted at their usual residence. Under paragraph (b), all other citizens of foreign countries are "not counted for apportionment." For 2020, the Bureau counted foreign citizens where they lived and slept most of the time. It drew no distinction between legal and unlawful presence, a point the new notice makes itself.

The Congressional Research Service read the line broadly in a September 28 note, saying the exclusion would potentially reach some lawfully present people as well as unlawfully present ones. CNBC reported that student visa holders, people with temporary protected status, refugees and asylum seekers would fall outside the count. The preamble, however, invites comment on whether other legal statuses are "materially similar" to permanent residence, so the boundary of the excluded group is not settled in the document.

How the Bureau would tell who is who

The regulation does not say. The preamble says the Bureau "is considering" administrative records to determine legal status. It lists Treasury, Homeland Security, State, Health and Human Services and Postal Service files, plus state and local records and third-party commercial data. A footnote adds that data agreements signed with Homeland Security and the State Department in 2019 have since been "substantially expanded." The preamble also says the Bureau "could" add a legal-status question to the short form. Both are options, not requirements.

Section 60.2 adds a second mechanism. Usual residence would become the place where a person lawfully spent the most days between January 3 and April 1, and a day counts if the person spent at least one hour there. That residence "should be consistent with, and evidenced by" tax records. The text is silent on residents who do not file, and a footnote says only that the Bureau will weigh each record's purpose, timing and reliability.

Meeta Anand, senior director of census and data equity at the Leadership Conference on Civil and Human Rights, told CNBC that the records route would likely suppress response rates. The 2019 operational test points in a mixed direction, according to the Congressional Research Service. A citizenship question produced no statistically significant difference in overall self-response, but significantly lower response in some subgroups, including some Hispanic respondents. Results from the 2026 test had not been released as of that note.

Two legal theories in one rule

The Bureau argues that "persons" in Article I means "inhabitants," members of the body politic, and that the people it would exclude lack a sufficient "tie and allegiance" to the United States. In the alternative, it says exclusion falls within the discretion Congress delegated under 13 U.S.C. 141, citing Franklin v. Massachusetts, the 1992 decision that upheld counting overseas federal employees at their home-state addresses. A court that rejects the first reading still has the second to address. Each of the rule's two parts also carries a severability clause, so a ruling against one leaves the other standing.

Opponents rest on the Fourteenth Amendment's instruction to apportion seats by counting the "whole number of persons in each State." "The greatest likelihood is that this is going to end up in litigation," Anand said. The preamble anticipates that. It cites a Missouri suit filed January 30, 2026, a Louisiana suit filed January 17, 2025, and a Florida petition for rulemaking dated April 15, 2026, and says it incorporates their arguments "without necessarily endorsing" them.

The seats at stake

CNBC and Newsmax both report an analysis they attribute to a newspaper this article could not access directly. It found Florida, Rhode Island and Texas would each lose a seat under the rule, while Minnesota, Ohio and Oregon could each gain one. The result varies by estimate. Using 2024 figures from the advocacy group FWD.us, Texas and Florida would each get one fewer seat than under a full count and Minnesota and Oregon would each gain one. Using Pew Research Center's 2023 estimates, Texas still loses, Minnesota gains, and Ohio gains at Rhode Island's expense. The estimates put the excluded share at up to 5 percent of the national population.

"This isn't exactly what I think the powers that be expected," Jeffrey Passel, a senior demographer at Pew whose estimates the analysis used, told the newspaper, according to Newsmax. Population shifts before 2030 could change every one of those results. The Bureau's own preliminary regulatory impact analysis, posted with the rule on regulations.gov, was not reviewed for this article. Margins at this scale are thin: New York would have kept a House seat after the 2020 census had 89 more residents been counted, Newsmax reported.

The case for the change

Supporters argue that counting every immigrant who lives in the country, a practice that dates to the founding, encourages illegal immigration and makes some voters more powerful than others, CNBC reported. Representative Andrew Clyde, Republican of Georgia, introduced a bill with 42 Republican co-sponsors that would reapportion House seats before the 2028 election with noncitizens excluded and a citizenship question added. Senator Bill Hagerty, Republican of Tennessee, introduced a bill last year requiring a citizenship question on any future census.

The second half of the rule

Part 70 would bar questions about race, ethnicity and sexual orientation from the short-form questionnaire or any questionnaire used for the count. Questions on biological sex, date of birth and household relationships could stay, and answers to every other demographic question would become voluntary. The Bureau says fewer questions raise response rates and reduce disclosure risk. Section 70.3 would also forbid publishing individual demographic data when doing so requires adding statistical noise to population counts. The American Community Survey is untouched.

How unusual this is

Changing residence criteria is routine. The preamble notes the Bureau began allocating overseas military personnel to home states in 1970 and overseas federal employees in 1990. Removing a class of residents from the apportionment base is not routine. The notice itself cites a July 21, 2020 presidential memorandum seeking to exclude unlawfully present people from the base, and CNBC reported it was never implemented. This version differs in form: it is a regulation, signed September 8 by Commerce Secretary Howard Lutnick, meant to govern enumeration "moving forward" rather than one census.

Commerce must report the subjects of the 2030 census to Congress three years ahead of Census Day, which CNBC put at April 1, 2027. Comments close November 2, the day before Election Day, under docket USBC-2026-0628. The Bureau will accept anonymous comments if the commenter enters "N/A" in the required fields. CNBC said the White House referred questions to Commerce, and that Commerce and the Census Bureau did not respond to its requests for comment.

The proposed text leaves the method for identifying excluded residents to later operational decisions. If the final rule keeps it that way, who gets counted in 2030 would turn on records and questions the regulation never names.