Cyrus Mehta

L-1 Eligibility Without Traditional Employment: Pozzoli, Tessel, and Historic INS Guidance

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By Cyrus D Mehta and Damira Zhanatova*

For many multinational employees, founders and senior executives, especially outside the United States, “employment” is not always a simple paycheck and payroll relationship. They may be compensated through their own entities, hold significant equity, or even draw no traditional salary. Yet U.S. immigration law still requires that an L-1 beneficiary have been “employed” abroad by a qualifying organization for at least one year. 

Over decades, legacy INS and USCIS have answered what “employment” means in the L-1 context in a consistent way: the focus is on the underlying relationship of control and corporate integration, not on formalities like which entity runs payroll, what the local contract is called, or whether the individual receives a conventional salary. Classic decisions such as Matter of Pozzoli, 14 I&N Dec. 569 (Reg. Comm. 1974), and Matter of Tessel, Inc., 17 I&N Dec. 631 (Act. Assoc. Comm. 1981), along with later policy guidance, frame “employment” as the rendering of services under the employer’s power to direct and control, within a genuine corporate structure.

To qualify for L-1 classification under section 101(a)(15)(L) of the Immigration and Nationality Act (INA), a foreign national must have been employed abroad continuously for at least one year in the three years preceding the petition and admission, must have been so employed by a qualifying organization (the same employer or its parent, subsidiary, or affiliate), and must be coming to the United States to work for that organization in either an executive or managerial capacity (L-1A) or in a position involving specialized knowledge (L-1B). Neither the statute nor the regulations provide a bespoke L-1 definition of “employment.” Instead, INS and USCIS have articulated that concept through case law and policy, repeatedly emphasizing who has the power of control over the individual’s work, how integrated the individual is into the organization’s management and operations or its specialized functions, and whether the services are rendered within a bona fide multinational corporate structure.

In Matter of Pozzoli, a U.S. corporation petitioned for a long‑term executive of its Italian subsidiary to come to the United States as an L‑1. The company made clear that during his U.S. assignment, the beneficiary would remain on the Italian subsidiary’s payroll. The district director denied the petition, reasoning that because the Italian affiliate would continue to pay him, he would still be “employed” by the foreign company abroad and not “rendering his services” to the U.S. entity. On certification, the Regional Commissioner reversed. After reviewing the statutory history of section 101(a)(15)(L) and general master‑servant law, INS concluded that the district director’s focus on payroll source was misplaced. The Commissioner found that the petitioner and its Italian subsidiary were part of the same multinational enterprise, that the transfer was “to continue his employment as an executive of the corporation,” and that the purpose of the L‑1 amendments was to facilitate exactly this sort of movement of key personnel. The decision explicitly held that “the question of where the beneficiary’s paycheck may originate is not a relevant factor” in determining eligibility for L‑1 classification, and that payment by the foreign affiliate “does not preclude him from establishing eligibility.” In other words, for L‑1A purposes, the source of salary from a qualified affiliate abroad or from the U.S. entity does not, by itself, decide whether the person is “employed” by a qualifying organization; what matters is the corporate relationship and who actually controls the work.

Matter of Tessel, Inc. dealt with a different but closely related issue: can a person be treated as an “employee” when he is essentially an owner executive and does not draw a traditional salary? Tessel arose in the context of Schedule A, Group IV labor certification, but the analysis was explicitly tied to the L-1 definition of “affiliate” and the nature of qualifying employment abroad.

In Tessel, the beneficiary owned the vast majority of a South African company, served as its unsalaried chairman, and also owned a majority of the U.S. petitioner. The district director and the Regional Commissioner both questioned whether he was truly an employee at all, characterizing him instead as an investor or entrepreneur, and expressing doubt that an employer employee relationship could exist where the petitioner and beneficiary were “one and the same.” The Commissioner rejected those views, relying in part on Matter of M, 8 I&N Dec. 24 (BIA; A.G. 1958), which held that a corporation could file a preference petition for its sole shareholder.

Tessel reaffirmed that a corporation is a separate legal entity from its stockholders and is capable of employing them and petitioning on their behalf. It held that an unsalaried appointed chairman is nonetheless an employee in a managerial or executive position for purposes of Schedule A, Group IV, and that the fact that someone may qualify in another immigrant classification (such as investor) does not preclude simultaneous qualification as an employee. The decision also clarified that companies can be “affiliated” for L-1 purposes where there is a high degree of common ownership and management, either directly or through a third entity. Taken together, Tessel makes two core points that carry directly into the L-1 context: equity ownership does not destroy an employment relationship, and the absence of a conventional salary does not, by itself, mean there is no executive or managerial “employment.”

In 1995, INS distilled these themes in a policy letter that explicitly addressed the meaning of “employed” for L‑1 purposes. In a letter dated August 25, 1995, attorney William Z. Reich wrote to INS about a Canadian citizen who had been refused L‑1 admission under NAFTA because he could not produce a T‑4 wage form, the Canadian equivalent of a W‑2. The individual had been compensated under a contract that was more advantageous for tax purposes, rather than as a salaried employee, and therefore did not have the usual wage documentation. Nonetheless, a letter from the employer’s human resources manager confirmed several years of permanent, full‑time employment; he had no other job; he devoted his full attention to managing the business; and he received direction and assignments from the company’s executives, remaining subject to their control at all times. Mr. Reich argued that, given the nature and character of the relationship, the individual was clearly not an “independent contractor” as defined in the regulations, but rather an employee in substance. In her December 18, 1995 response, Yvonne M. LaFleur, then Chief of the Nonimmigrant Branch at INS, acknowledged that a general regulatory definition of “employment” elsewhere in the rules specifies compensation as one element, but explained that for L-1 purposes the Service “generally equates the rendering of service with employment for the qualifying L-1 period.” The letter cites both Tessel and Pozzoli, emphasizing that a non-salaried chairman can qualify as an L-1 nonimmigrant, and that the “power of control over the employee’s activity, rather than salary, is the essential element in the employment relationship.” That is a direct echo of the master servant analysis cited in Pozzoli: the truly “essential element” is the right to control how, when, and for whose benefit the work is performed, with the power to appoint and dismiss as strong evidence of that relationship, and the payment of wages “the least important factor”. This correspondence is reproduced at 73 Interpreter Releases 49 (Jan. 10, 1996).

Taken together, Pozzoli, Tessel, and the LaFleur letter all point in the same direction. For L-1 purposes, “employment” is primarily a question of whether the individual renders services under the direction and control of a qualifying organization. The existence of salary, the exact form of compensation, and the source of payroll are secondary considerations. Ownership, even majority or sole ownership, does not prevent a corporation from being the individual’s employer if the corporate entity is real and exercises governance authority over the executive role. Formal gaps in local payroll documentation, such as the absence of a T-4 or W-2, do not, by themselves, negate a qualifying employment relationship when the factual record shows full time, controlled service to the company.

These long-standing principles are increasingly important as global employers use local structures that do not resemble a U.S. W-2 job. Brazil provides a good illustration. In Brazil, the traditional employment relationship is governed by the Consolidation of Labor Laws (Consolidação das Leis do Trabalho, or CLT), Decree‑Law No. 5,452/1943. A CLT relationship is the classic labor‑law employment bond that brings with it a bundle of statutory wage protections, benefits, and social charges. In addition to this traditional CLT employment, however, Brazilian law recognizes several other legitimate forms for structuring professional activities. These include corporate relationships, specialized service arrangements, and the exercise of executive functions formalized through civil or commercial contracts. Under the widely used “Pessoa Jurídica” (PJ) model, for example, a professional provides services through a legal entity that he or she owns. That entity invoices the company, and compensation flows through the PJ rather than directly through a CLT employment contract. PJ contracts typically include boilerplate clauses disavowing a CLT “employment bond” or “subordination” and assigning labor and social security obligations to the PJ entity. These clauses are designed to allocate responsibilities under Brazilian labor and tax law and to make clear that the relationship is not governed by CLT, but they do not automatically mean that the individual is economically independent from, or external to, the company’s internal management.

In some L‑1A scenarios, a Brazilian‑based executive may, for more than a year within the three‑year lookback period, serve as the top‑level executive of a foreign parent company while being compensated, consistent with local practice, through a wholly owned PJ, rather than under a CLT bond. On the surface, standard PJ contract language disavowing a CLT bond or “subordination” can make the relationship look like independent contractor work, even when, in substance, the executive functions as an internal leader of the foreign enterprise. 

Under long-standing INS/USCIS guidance, the proper way to analyze such a structure is not to stop at the contract label, but to examine the underlying master-servant relationship. Corporate documents, shareholder resolutions, and other evidence can show that the foreign parent has in fact selected and engaged the individual as its principal executive; defined that person’s duties and strategic objectives; approved and adjusted compensation; retained the power, through corporate bodies, to appoint, supervise, and remove the executive; and relied on full-time, exclusive service integrated into its governance and reporting structure. A legal opinion from Brazilian counsel can further explain that the PJ form and CLT disclaimers reflect a choice among different lawful modes of engagement under Brazilian law, and do not necessarily mean that the individual operates as an external, multi-client contractor. In many such cases, the PJ itself has no other clients and functions solely as a billing and tax vehicle for executive services rendered inside the parent’s corporate structure.

Viewed through the framework of Matter of Pozzoli, Matter of Tessel, and the LaFleur letter, the legal analysis is straightforward. As Pozzoli makes clear, the origin or routing of the paycheck does not determine who “employs” the executive for L-1A purposes; what matters is which qualifying organization actually directs and benefits from the work. Tessel confirms that equity ownership and the absence of a traditional, local-law salary do not prevent a corporation from being the individual’s employer, because the corporation is a separate legal person capable of employing its owners when it exercises genuine governance authority over their roles. And consistent with the LaFleur letter, the fact that compensation is paid under a contract for tax reasons does not disqualify the arrangement, because the Service “generally equates the rendering of service with employment for the qualifying L-1 period” when the master-servant control relationship is clearly documented.

These Brazilian-style PJ situations are simply one illustration of a broader rule. For L-1 purposes, “employment” is not a rigid label tied to local labor codes, salary forms, or who prints the paycheck. Even in the U.S., the use of a Professional Employer Organization (PEO) is prevalent so that companies can access better benefits. A PEO is a firm that provides comprehensive HR outsourcing services to small and medium-sized businesses through a co-employment agreement where the employee is put on the payroll of the PEO.  The PEO can obtain better insurance premiums because it would have more bargaining power than a single company.   It is a functional concept anchored in control and corporate integration, rather than in any single compensation form or local labor‑law label. Whether the petition is for an L‑1A executive or manager or an L‑1B specialized knowledge employee, the core question is the same: has the foreign national, in fact, rendered services abroad for at least one continuous year within the required three‑year window to a qualifying organization that directed and controlled the work within a genuine multinational structure?

In jurisdictions like Brazil, where CLT employment is only one of several legitimate ways to structure professional activities and where executives or specialists often serve under PJ or other civil/commercial arrangements, what matters for L‑1 is not whether the relationship is labeled CLT, PJ, contractor, or something else, but whether the foreign entity truly functions as the employer in the master‑servant sense: selecting the individual, defining duties and objectives, supervising performance, and retaining the power to remove the person from the role. If those elements are present, and all other statutory and regulatory criteria are met, the absence of a CLT bond, a traditional salary, or a familiar payroll form should not, by itself, defeat the one‑year foreign employment requirement for L‑1 category.

[We are grateful to our late friend and colleague, William Reich, who was never afraid to push the envelope on behalf of his clients in seeking fair and favorable interpretations from the government.]

 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Blanche v. Lau: Will the Supreme Court Degrade the Rights of Lawful Permanent Residents?

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By Cyrus D. Mehta and Kaitlyn Box*

On April 23, 2025, the Supreme Court heard oral argument in Blanche v. Lau, a case that confronts the issue of whether the government, in seeking to remove a lawful permanent resident (LPR) who was paroled into the United States on the basis that he committed a crime involving moral turpitude (CIMT) under INA 212(a)(2) must prove that it possessed clear and convincing evidence of the crime at the time of the LPR’s most recent reentry. Mr. Lau, an LPR who had traveled outside the U.S. with a pending charge of third-degree trademark counterfeiting in New Jersey before being paroled into the country in 2012, argued that there is a presumption LPRs are already admitted when they reenter the U.S. after travel abroad. The government, on the other hand, asserted that Lau falls within an exemption to this presumption because he had already committed a crime at the time of his reentry, although he had not yet been convicted.  Under INA 101(a)(13)(C) an LPR shall not be regarded as seeking admission in the US if they have inter alia committed an offense identified in section 212(a)(2), which includes crimes involving moral turpitude or drug offenses. 

The conservative justices seemed to largely agree with the government’s position, although Justice Jackson expressed concern about the implications of this position, stating: 

“And my concern is that I could actually see a world in which [bad-faith paroling] would be in the government’s interest. And it’s a situation in which people who are lawful permanent residents who have green cards leave the country and, when they return, based on a suspicion or even an indictment that’s in the government’s control, they flag this person as being returning under parole as opposed to lawful admission. They take this person’s green card, which then makes it much, much harder for this person to actually live and work and continue in their life here in the United States, perhaps so much so that this person self-deports because it’s really, really difficult without a green card to operate in this country. So you could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration.”

If the Supreme Court sides with the government in Blanche v. Lau and decides that an LPR who is accused of committing a crime and paroled into the U.S. has not already been admitted, this power could be abused by the Trump administration, which has already evidenced an intent to erode the rights of LPRs. This is exactly the sort of abuse that Justice Jackson appeared troubled by in her colloquy during oral argument. By taking the position that an LPR is seeking admission rather than arguing that the individual is deportable, the government can more easily pursue removal. In order to remove an LPR who was admitted, the government would have to show that the individual had been “convicted of a crime involving moral turpitude committed within five years” of the admission. The government must have clear and convincing evidence in order to determine that an LPR is seeking admission after having committed a crime under INA 212(a)(2), and that burden should only be met if the LPR has actually been convicted of the crime involving moral turpitude, or has admitted to the elements of the crime. 

An LPR can voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K–, 7 I&N Dec. 594 (BIA 1957).  The Board of Immigration Appeals also held in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the  standard in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. This has also been more recently affirmed by the Board of Immigration Appeals in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). 

As the late Justice Ginsburg observed in Vartelas v. Holder, 566 U.S. 257 (2012), “[o]rdinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.” Piepowder, or “dusty feet courts”, as Justice Ginsburg’s decision notes, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in medieval Europe while the merchants’ feet were still dusty. 

Justice Ginsburg’s observation appears to restrict a CBP officer’s ability to try to suspect that an LPR has committed a crime rather than been convicted or one or admitted to the elements of the crime. The CBP officer should also not be able to extract a confession.  The U.S. Court of Appeals for the 2nd Circuit’s holding in Blanche v. Lau was much more in line with Justice Ginsburg’s reasoning. The 2nd Circuit held that the INA does not permit “DHS to treat a returning LPR as an applicant for admission based on the suspicion that a CIMT has been committed, leaving open whether this suspicion will ever be confirmed by a subsequent conviction”. The 2nd Circuit reasoned that the “INA is unmistakably clear that the default presumption is that LPRs will not be treated as seeking admission unless certain threshold determinations have been made…Allowing DHS to defer such a determination and take a wait-and-see approach contingent on whether a conviction eventually materializes effectively nullifies this clear command.” Unlike the merchants of old, a CBP officer cannot set up a piepowder court at the airport to bludgeon a weary LPR traveler into admitting to having committed the elements of a CIMT absent clear and convincing evidence. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta & Kaitlyn Box*

H-1B Enforcement While Working Abroad: Why Are CBP Officers in Abu Dhabi Scrutinizing LCAs?

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By Cyrus D. Mehta and Kaitlyn Box*

Recently, reports have surfaced of issues with U.S. Customs and Border Protection (CBP) Preclearance in Abu Dhabi – namely, that beneficiaries who had been outside the United States were asked questions about whether the conditions described in the Labor Conditions Application (LCA) had been complied with while they were working abroad. The LCA framework and DOL’s protective purpose are defined around H-1B employment in the U.S., which makes CBP’s apparent focus on foreign remote-work patterns somewhat unusual from a traditional LCA-enforcement perspective.

 The American Immigration Lawyers Association solicited examples of these problems in March 2026, and an article from the American Bazaar, despite misstating some information, recounts the plight of an individual who passed through Abu Dhabi preclearance and informed officers that “she had remained in India for close to two months and had worked part time during that period while using her Paid Time Off (PTO)…Officers allegedly determined that she had spent too long outside the United States and questioned the fact that she continued to receive pay from her U.S. employer while working remotely from India. Her visa stamp was reportedly marked ‘Cancelled and Withdrawn,’ and she was told she would need to apply again.” Gnanamookan Senthurjothi, a U.S. immigration lawyer, reported instances of “ increased scrutiny of H‑1B travelers transiting Abu Dhabi’s U.S. preclearance facility, especially on Etihad flights, where individuals who have worked remotely abroad for 2+ months are facing intensive questioning and, in some cases, visa revocation” in a recent LinkedIn post. 

Although it is hoped that these reports are aberrations that CBP will prevent from recurring in future, these reports are troubling. The conditions stated on an LCA, such as a beneficiary’s salary and worksite, are typically construed as applying only to employment within the U.S., as U.S. immigration laws cannot generally regulate employment that takes place abroad.  Because H-1B is a U.S. admission/status classification, a foreign national who is physically outside the U.S. is not ‘in’ H-1B status during that time and, as such, is not required to hold H-1B status to perform services while abroad for a U.S. employer. The immigration consequences arise when that individual seeks re-admission in H-1B classification and CBP or USCIS evaluates whether they have complied with, or will comply with, the terms of the approved petition and LCA.

 The situation in Abu Dhabi raises interesting questions, however, regarding the extent to which activities abroad can impact an employer’s LCA compliance. 

INA 212(n)(2)(C)(vii) specifies that an employer must continue to pay a full-time H-1B worker the wages indicated in the LCA even during a period of “nonproductive period”, if the nonproductive status is “due to a decision by the employer (based on factors such as lack of work)”. This provision prohibits “benching”, or a scenario in which an employer stops paying the required wages to an H-1B worker during periods in which business is slow and there is insufficient work for the individual. Given the types of questions allegedly being raised by officers at Abu Dhabi preclearance, the Department of Labor could hypothetically find that an employer had engaged in “benching” and hold the company liable for back wages if it had not terminated an employee’s H-1B employment in the U.S., and was not paying her the wages listed on the LCA while she worked abroad.

DOL enforcement practice and published decisions tend to focus on underpayment and benching during periods of H-1B employment in the U.S. labor market. There is limited clear authority on how DOL treats extended periods of foreign work where the employer maintains the H-1B petition but modifies pay or duties while the worker is abroad.  Clearly, the US cannot sanction an employer for failing to post notice of the employer’s LCA obligations at a work location abroad. The INA and DOL rules all contemplate compliance of an employer’s LCA obligations when the worker is employed in the US and not at a foreign worksite.

 Ideally, to completely avoid benching liability,  it would be prudent if the employer withdraws the petition while the H-1B worker is employed remotely abroad for long stretches and not paid the required wage. However, this may no longer practical as the employer may have to pay the $100,000 fee under Trump’s H-1B Proclamation when it refiles an H-1B petition on behalf of an overseas H-1B worker to bring them back to the US. Moreover, many remote workers are only working overseas for their US employers because they are waiting for visa appointments or have been subject to “administrative processing” at US posts. Withdrawing the H-1B in these situations would be counterintuitive. 

Due to the war in the Middle East, Abu Dhabi preclearance is not currently operational. CBP has withdrawn officers, who are currently stateside. Travelers routed through Abu Dhabi will be inspected by CBP in the U.S. Hence, the issue is moot at this time, but it may raise its ugly head again when Abu Dhabi preclearance is restored, or if the idea of going after H-1B workers employed overseas catches on with CBP at other ports of entry. Ultimately, CBP should refrain from enforcing the LCA when the worker is employed abroad as there is scant authority for it to do so and it is also impossible to enforce LCA obligations at foreign work locations. CBP can still ask questions about foreign work and pay when those facts bear on whether the underlying H-1B classification remains valid, but it should not be denying admission to H-1B workers because the employer ostensibly did not meet its LCA obligations when the worker was employed abroad. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Beyond Future Newborns: How Upholding Trump’s Birthright Citizenship Order Could Jeopardize Tens of Millions of Existing Americans

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By Cyrus D. Mehta and Kaitlyn Box*

On April 1, the Supreme Court heard oral argument in Trump v. Barbara, a case which raises a 14th Amendment challenge to President Trump’s executive order restring birthright citizenship. The executive order, which was discussed in detail in a prior blog, interprets the language “subject to the jurisdiction thereof” in the Fourteenth Amendment to mean that U.S. citizenship does not extend to individuals born in the United States:

  1. when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth,
  2. or when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The plaintiffs, mostly noncitizen parents of children born in the United States, argued that the executive order violates the 14th Amendment and 8 U.S.C. § 1401(a), which guarantee those born in the United States citizenship.

The Supreme Court appeared largely unpersuaded by the Trump Administration’s arguments in support of the executive order. In her colloquy, Justice Amy Coney Barrett noted the potential for “messy” outcomes in the implementation of the executive order.  Referring to foundlings, or abandoned children born to parents of unknown identity, Justice Barrett said:

“The thing about this is, and then you have to adjudicate, if you’re looking at parents, and if you’re looking at parents’ domicile, then you have to adjudicate both residents and intent to stay. What if you don’t know who the parents are?… “How would it work? How would you adjudicate these cases? You’re not gonna know at the time of birth, for some people, whether they have the intent to stay or not…Including U.S. citizens, by the way. I mean, what if you have someone who is living in Norway with their husband and family, but is still a U.S. citizen, comes home and has her child here and goes back? How do we know whether the child is a U.S. citizen because the parent didn’t have an intent to stay?”

If implemented, the executive order could have perverse and far-reaching consequences. Children born in the United States to undocumented parents would be left without legal status. Because some countries do not automatically confer citizenship to children born abroad based on their parents’ status, some children in this situation could even be born stateless. The U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4, will also be impacted. One needs to be admitted into the U.S. in H-4 status or change from another nonimmigrant status into H-4 status, so it is unclear how a child could acquire a nonimmigrant status from birth. Parents might be forced to scramble and file immigration applications immediately following a child’s birth to ensure that they are not out of status. Because birth in the United States would no longer be sufficient to confer citizenship, even U.S. citizen parents might be forced to provide exhaustive proof of legal status to ensure that citizenship was also extended to their children. These scenarios are analyzed in greater detail in a prior blog.

Moreover, there is a potential for the executive order to eventually be expanded and applied retroactively as well. Justice Sotomayor noted that when the Supreme Court ruled that “Indians could not become citizens”, the federal government undertook efforts to de-naturalize even individuals who had already become citizens. D. John Sauer, the lawyer for the Trump administration, emphasized that the administration sought only to apply the order prospectively, but this position does not allay concerns that the executive order could not be applied retroactively in future. Given that millions of Americans are the children of immigrants, any efforts to retroactively apply the order would have unthinkable consequences. Indeed, many supporters of the Trump administration might find their US citizenship being thrown into question if their parent was not lawfully present in the US or were on a temporary visa.  And if these concepts did not exist before the mid-20th century, Americans would have to prove that their parents or their ancestors were domiciled in the US, as D. John Sauer argued for the government was the intent of the Framers of the Fourteenth Amendment.

If Trump’s Executive Order is upheld it not just creates a permanent subclass of people born in the US in the future but the destabilization of citizenship itself across generations. If the constitutional meaning of citizenship can be redefined after 150 years, what happens to all citizenship claims derived through parents and grandparents and even beyond who relied on United States v.  Wong Kim Ark? It creates a multigenerational problem. If X was never a citizen at birth, then was X able to transmit citizenship to Y?

Trump and his supporters aim for mass deportations. This fantasy would be realized well beyond their wildest dreams if they too get deported through the destabilization of citizenship across generations!

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta & Kaitlyn Box*

New Fields in Form  I-129 for H-1B Classification Need  to Sync with Appropriate Wage Levels in the Lottery and Labor Condition Application

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By Cyrus D. Mehta and Kaitlyn Box*

On February 27, 2026, USCIS published a new edition of Form I-129, which it will accept exclusively beginning April 1, 2026. The new edition of Form I-129 introduces several new fields in the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement. Question 7 through 11 on page 21 of the supplement request the following specific information: 

  • Level of education required for the position
  • Field(s) of study that would qualify someone for the position
  • Years of experience required in order to qualify for the position
  • Special skills required in order to qualify for the position
  • Number of people the beneficiary will supervise, and their position titles

Additionally, question 2 on section 3, page 22 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement requests that the appropriate wage level, I through IV, be selected for H-1B cap petitions. 

Many of these new fields appear designed to comply with the December 2025 Department of Homeland Security final rule that introduced a weighted selection process for the H-1B lottery.  The H-1B registration period for FY 2027 runs from March 4, 2026 to March 19, 2026, at 12 pm ET. 

Under the new system, discussed in detail in a prior blog, instead of a random lottery, registrations for unique beneficiaries or petitions will be assigned to the relevant Occupational Employment and Wage Statistics wage level and entered into the selection pool as follows: (1) registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times; (2) those assigned wage level III will be entered into the selection pool three times; (3) those assigned wage level II would be entered into the selection pool two times; and (4) those assigned wage level I will be entered into the selection pool one time. Pursuant to the new rule, the H-1B cap electronic registration form requires employers to indicate what wage level will be offered to the beneficiary. Although USCIS has not promulgated guidance specifying whether the Labor Conditions Application (LCA) and H-1B petition filed on behalf of a selected beneficiary must match the wage level indicated at the time of registration, it is likely a best practice to ensure that both are in sync. 

The weighted selection rule will incentivize employers to select the highest possible wage level in order to increase the candidate’s likelihood of being selected in the lottery. However, complications could arise when the H-1B petition is filed. If the beneficiary’s job duties appear sophisticated or high level, but the employer is only offering a level I wage, which generally relates to an entry-level role, USCIS can challenge the appropriateness of the wage level. Similarly, USCIS could question the appropriateness of a level IV wage if the employer is offering a higher wage to an employee in order to increase the chances of selection in the H-1B lottery. However, the DHS final rule makes clear that “…if an employer values a beneficiary’s work and the unique qualities the beneficiary possesses, the employer could offer a higher wage than required by the prevailing wage level to reflect that value.” Thus, an employer should not be precluded from paying a level IV wage even to an entry-level worker if that employee’s unique skills, performance, or educational background justify offering a higher wage. 

However, even if the employer as selected a level IV wage in the H-1B lottery,  at the time of preparing the Labor Condition Application (“LCA”), the employer will need to assign the appropriate wage level based on the DOL 2009 prevailing wage guidance. Under the DOL prevailing wage guidance, an entry level employee on first brush may  qualify under level I wage or level II wage rather than Level  IV wage. The employer, on the other hand,  may be able to justify a level IV wage even if an employee has no prior or little experience based on an advanced degree and possessing other specialized skills, qualifications and certifications/licenses that are essential for performing the duties of the position. The level IV wage can further be justified based on the actual wage that is paid to similarly situated workers. Under DOL rule, the employer must pay the higher of the prevailing or actual wage. So even if the prevailing wage would be a level 1 wage but the actual wage is at level 4 wage, the employer must pay the higher level 4 wage. 

Additional complexities can arise once the employer begins the PERM labor certification process on behalf of an employee currently in H-1B status. An employer might be offering an employee a level I or II wage for the present H-1B position, but could have higher requirements for the PERM and I-140 position. For a PERM position that requires a bachelor’s degree and 5 years of experience, however, the DOL is likely to assign a level IV wage in the Prevailing Wage Determination. Although there could appear to be an inconsistency between the H-1B and PERM wage levels, the role described in the PERM is a future role. For beneficiaries from backlogged countries like India and China, this position may only materialize after 10 years or more when they become eligible for adjustment of status. Thus, because the employer is required to project the requirements and salary for a role to be performed many years in the future, it is not inherently problematic for an employer’s requirements, and, therefore, the corresponding wage level, to be substantially higher for a PERM position than for the present H-1B role.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Trump Administration Erroneously Freezes Child’s Age under the Child Status Protection Act Upon Approval of Visa Petition  Rendering It Virtually Ineffective

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By Cyrus D. Mehta and Kaitlyn Box*

In early 2023, under the Biden administration, USCIS had reversed its longstanding policy of recognizing only the Final Action Dates (FAD) in the State Department Visa bulletin as protecting a child’s age under the Child Status Protection Act (CSPA), and agreed to use the Dates for Filing (DFF) to protect the age of the child. In 2025, however, under the Trump administration USCIS again changed course and reverted to its prior policy, stating in an August 8, 2025 Policy Alert that: 

… “a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin. The new guidance applies to requests filed on or after August 15, 2025. We will apply the Feb. 14, 2023, policy of CSPA age calculation to adjustment of status applications pending with USCIS before August 15, 2025, as these aliens may have relied on that policy when they filed.    

We discussed this policy change at length in a prior blog post. 

Now, USCIS seems to have made another CSPA-related policy change in the August 8, 2025 update to the USCIS Policy Manual without any public notice. Immigration lawyers are increasingly seeing denials of I-485 applications for derivative children that were filed concurrently with an I-140 petition under the Dates for Filing in the Visa Bulletin if the child was over 21 by the time that the I-140 petition was later approved. USCIS’ current policy is  that a visa becomes available on the later of:

  • The date the petition was approved; or
  • The first day of the month of the Department of State Visa Bulletin that indicates that a visa is available in the Final Action Dates chart.

Nothing in the plain text of INA 203(h)(1)(A), however, states that the I-140 petition must be approved in order for a child’s age to freeze for CSPA purposes. The same logic also applies to I-130 petitions filed concurrently with I-485 applications.  This provision states only that a child’s age is protected for CSPA purposes when: 

“the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability…”. 

Additionally, INA 203(h)(1)(B) clarifies that a child’s CSPA age should be reduced by “the number of days in the period during which the applicable petition described in paragraph (2) was pending”.

Because INA 245(a)(3) provides that an applicant is eligible for adjustment of status if “… an immigrant visa is immediately available to him at the time his application is filed”, a visa number should be available at the time that USCIS accepts an I-485 application for processing, even if it is based on a concurrently filed I-130 or I-140 petition and or the Dates for Filing in the Visa Bulletin prior to August 15, 2025. After August 15, 2025, a visa number should be available if it is based on a concurrently filed I-130 or I-140 and I-485 application based on the Final Action Dates. This interpretation is consistent with the purpose of the CSPA, which is to adjust an applicant’s age in circumstances where they are not able to file an I-485 until after reaching the biological age of 21. Invoking CSPA is unnecessary when a derivative applicant has been able to file her I-485 before turning 21. 

Similarly, he plain language of INA 203(h)(1)(A) requires only that immigrant visa number is available without making reference to the approval status of the underlying I-140 petition. The USCIS has historically recognized that the child’s age freezes when there is a concurrently filed visa petition and adjustment of status application. The visa is available at the time of the concurrent filing and so it made sense to freeze the age of the child consistent with INA 203(h)(1)(A). We saw the CSPA being applied to concurrent filings during the July 2007 visa bulletin period even though there was retrogression from August 2007 onwards. Another  good example was the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin  a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. Still, the USCIS considered the child’s age frozen even though there was retrogression after April 2012.

USCIS’ new interpretation will have devastating impacts for children whose ages are no longer protected under the CSPA, and for their families. Under the new interpretation, a concurrently filed I-140 petition and I-485 application on October 20,  2020 under the India employment based third preference (EB-3) with a  priority date of July 1, 2013 might only freeze the age of the child on October 1, 2025 even if the I-140 petition got approved on January 10, 2022. If the child was 20 years and six months on October 20, 2020, the child’s age ought to have frozen on that date before it reached 21 years rather than on October 2025 when the child would be well past 21 years of age.  

 In the current climate, erroneous denials of I-485 applications stemming from this interpretation could result in derivative children being placed into removal proceedings. It bears consideration, however, that USCIS’ interpretation can potentially be challenged under the Administrative Procedure Act, arguing that the policy change was arbitrary and capricious because USCIS provide no notice or explanation for its reinterpretation of the statute. Pursuant to Reyes v. USCIS, a federal court has jurisdiction to hear a statutory interpretation challenge under the APA, such as the issue of visa availability under the CSPA, at least in the Fourth Circuit. Moreover, the Supreme Court in Loper Bright Enters. v. Raimondo, has made clear that courts must interpret statutes independently and need not defer to an agency’s interpretation, providing further basis for contesting USCIS’ new policy. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Board of Immigration Appeals Limits Scope of Entry Fraud Waiver under INA 237(a)(1)(H) 

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By Cyrus D. Mehta and Kaitlyn Box*

On February 26, 2026, in Matter of Fortjoe, the BIA held that “’admission’ in section 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H), refers only to an alien’s lawful entry into the United States after inspection and authorization by an immigration officer. Mr. Fortjoe was a citizen of Ghana who was admitted to the United States as a nonimmigrant in 1995, and later entered into a fraudulent marriage with a U.S. citizen. In a 2007 visa interview, he failed to disclose that he had fathered two children by another woman during his marriage to the U.S. citizen spouse. In 2012 he applied for naturalization and disclosed the two children born outside of his marriage. USCIS denied his naturalization application and DHS initiated removal proceedings pursuant to INA 237(a)(1)(A), which renders a noncitizen “who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time” removable. Mr. Fortjoe sought a waiver of inadmissibility pursuant to INA 237(a)(1)(H), which is available to noncitizens who are in removal proceedings, are the spouse, parent, or child of a U.S. citizen or LPR, and are admissible to the U.S. aside from the fraud or misrepresentation, but the Immigration Judge denied the waiver on discretionary grounds. 

In 2015, in Matter of Agour, the BIA had previously held that “adjustment of status constitutes an ‘admission’ for purposes of determining an alien’s eligibility to apply for a waiver” under INA 237(a)(1)(H). In Matter of Fortjoe, the BIA overruled Matter of Agour. The BIA reasoned that “the plain and natural meaning of the language of section 237(a)(1)(H) limits the waiver to fraud or misrepresentation at the time of an alien’s lawful entry into the United States after inspection and authorization by an immigration officer.” The BIA also examined the statutory history of this provision, finding that Congress’ “change in language from ‘entry’ to  ‘admission’ appears to have been merely a conforming amendment, rather than one intended to have a substantive effect”, and that Congress did not make a corresponding change to INA 237(a)(1)(A), which renders noncitizens who were inadmissible “at the time of entry or adjustment of status” removable. 

In overruling Matter of Agour, the BIA relied on Loper Bright v. Raimondo, analyzed in prior blogs, in which the Supreme Court abolished the long-standing Chevron doctrine, under which, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Loper Bright, according to the BIA, holds that “reexamination of a precedent’s reasoning may be warranted, notwithstanding the doctrine of stare decisis”. The BIA’s decision in Fortjoe illustrates that Loper Bright, which may serve as a tool for challenging Trump administration immigration policies, can also be relied upon by the agency to overturn its own precedent that is favorable to noncitizens. However, the BIA’s decision is itself an agency interpretation that is subject to being overturned under Loper Bright, as was recently illustrated when a federal court in California  overruled the BIA’s decision in Matter of Yajure Hurtado, which had held that a noncitizen who entered the US without inspection is not eligible for bond under INA 235(b)(2)(A). It may not be appropriate for the BIA to rely on Loper Bright,  only a federal court ought to be able to rely on Loper Bright and not pay deference to a BIA decision. 

If the BIA decision in Matter of Agour does not get reversed in the Sixth Circuit Court of Appeals, it would greatly limit relief under INA 237(a)(1)(H) to  those who are inspected and admitted as lawful permanent residents after obtaining an immigrant visa at a US consulate. It would not apply to people who applied for adjustment of status and committed fraud or misrepresentation during the process. People applying for naturalization should also be aware that if it is found that they were not appropriately adjusted to lawful permanent resident status in the US as a result of  fraud or misrepresentation during adjustment of status, would not be able to avail of the waiver under INA 237(a)(1)(H) if they are denied naturalization and placed in removal proceedings.  Our prior blog contemplated scenarios in which an applicant can be denied naturalization, which could also include cases of innocent misrepresentation while adjusting status in the US. An example could include one who was mistakenly granted adjustment of status by the government in a preference category where the priority date may not have been current. 

The BIA made clear that its ruling in Matter of Fortjoe will apply prospectively and not retroactively. Thus, people who have received waivers prior to this decision based on fraud or misrepresentation will not be adversely impacted by this decision.  

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Major Questions Doctrine in Immigration Cases after the Supreme Court Ruling in the Tariffs Case

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By Cyrus D. Mehta and Kaitlyn Box*

In a previous blog, we addressed the major questions doctrine, an idea articulated by the Supreme Court in West Virginia v. EPA, 142 S. Ct. 2587 (2022). The major questions doctrine holds that “in certain extraordinary cases” where it is unclear whether an agency action was authorized by Congress, “given both separation of powers principles and a practical understanding of legislative intent, the agency must point to ‘clear congressional authorization’ for the authority it claims”. We have advocated for the major questions doctrine as a tool that can be used to challenge the Trump administration’s sweeping changes to the immigration landscape through executive power.

The major questions doctrine, which is triggered when executive actions have major economic or political significance,  was very recently employed by the Supreme Court to invalidate a Trump administration policy. On February 20, 2026, in Learning Resources, Inc. v. Trump, 24-1287, (02/20/2026), the Supreme Court struck down the tariffs imposed by the Trump administration. In his majority opinion, Chief Justice John Roberts leaned heavily on the major questions doctrine, writing: “Th[e] stakes dwarf those of other major questions cases…[t]he President must “point to clear congressional authorization” to justify his extraordinary assertion of the power to impose tariffs…He cannot.” The Court was not persuaded by the government’s argument that the major questions doctrine does not apply to emergency statutes, stating that: “Where Congress has reason to be worried about its powers ‘slipping through its fingers,’…we in turn have every reason to expect Congress to use clear language to effectuate unbounded delegations”. Additionally, the Court held that the major questions doctrine is applicable notwithstanding the President’s authority to handle foreign affairs matters. The Court reasoned that only Congress can regulate tariffs ordinarily, despite tariffs always have foreign policy implications, and any delegation of this power by Congress would surely have been outlined explicitly. The Court concluded that the International Emergency Economic Powers Act (IEEPA) does not authorize the President to impose tariffs, holding that “IEEPA’s grant of authority to ‘regulate . . . importation’ falls short” of conferring such authority, and that “IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word ‘regulate’ to authorize taxation”. 

Justice Kagan’s concurring opinion, however, emphasized that one does not need to rely on the major questions doctrine to challenge Trump administration policies. Justice Kagan objected to “…the demand for a special brand of legislative clarity” introduced in the line of cases elucidating the major questions doctrine. Instead, she argued that “the proper way to interpret a delegation provision is through the standard rules of statutory construction”, or “examining a delegation provision’s language, assessing that provision’s place in the broader statutory scheme, and applying a ‘modicum of common sense’ about how Congress typically delegates”. Applying a standard statutory interpretation analysis, Justice Kagan concluded that “[t]he crucial provision of IEEPA, when viewed in light of the broader statutory scheme and with a practical awareness of how Congress delegates tariff authority, does not give the President the power he wants”.

Extrapolating the Supreme Court’s reasoning to the immigration context, the major questions doctrine could be employed to challenge Trump administration policies like restricting birthright citizenship, or implementing a $100,000 fee for many H-1B visa applications.  The Presidential Proclamation implementing the new fee points to INA 221(f) as the authority for the policy. INA 221(f) states that “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This fee would radically reshape the H-1B visa program, qualifying as an “extraordinary case” in which the major questions doctrine should apply. The $100,000 fee poses severe consequences for not only foreign professionals seeking H-1B visas, but also U.S. employers that hire H-1B workers, many of whom will now be practically unable to avail of the H-1B visa program. However, nothing in INA 221(f) authorizes the president to impose new fees for visa applications, let alone practically eviscerate a visa category. If Congress intended for the president to have the authority to dismantle entire visa categories, it would surely have granted him that power explicitly.

Although Justice Kagan makes a compelling  argument that one can rely on statutory construction rather than the major questions doctrine, we believe that the major questions doctrine may give plaintiffs a better chance to slice through INA 221(f) that has previously been upheld in Trump v. Hawaii as  giving the president broad power over immigration. 

The fee was upheld in federal district court in Chamber of Commerce v. DHS, with the court making only a passing reference the major questions doctrine. In footnote 8, the court states that “During the hearing, which lasted over two hours, the major questions doctrine was not mentioned once. Any argument that a substantive version of the major questions doctrine is relevant to this issue has thereby been forfeited…” In a second lawsuit filed in the U.S. District Court for the Northern District of California to challenge the $100,000 fee, Global Nurse Force v. Trump, which has not yet been decided and see here a link to the pleadings, plaintiffs have forcefully argued that interpreting INA §§ 212(f) and 215(a) to authorize the president to establish the $100,000 fee would “violate the major questions doctrine because these provisions contain no clear Congressional authorization for this action of great political and economic significance. And, there is no basis for delegated authority for the President to raise and spend money as he sees fit.”Following the Supreme Court’s decision in Learning Resources, however, the major questions doctrine may become a more robust tool for future challenges to the fee and in other immigration cases. 

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Although the Fifth Circuit has Justified Detention Without Bond for Noncitizens who Entered Without Inspection, Courts Outside the Fifth Circuit Are Not Bound and Can Use Independent Judgment Under Loper Bright 

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By Cyrus D. Mehta and Kaitlyn Box*

In its June 28, 2024 decision in Loper Bright Enterprises v. Raimondo, the Supreme Court abolished the long-standing Chevron doctrine. Under this doctrine, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Chief Justice John Roberts, writing for the majority, stated that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires”, but made clear that prior cases decided under the Chevron framework are not automatically overruled. We have discussed Loper Bright at length in prior blogs (here, here, here  and here). 

Thus far, Loper Bright’s influence on federal courts’ handling of immigration cases has been relatively subtle under the Immigration and Nationality Act (INA) but it has proved a powerful tool for challenging the Board of Immigration Appeal (BIA)’s reinterpretation of INA 235(b)(2)(A), 8 U.S.C. 1225(b)(2)(A),  and INA 236(a), 8 U.S.C. 1226(a) to hold that noncitizens who entered without inspection (EWI) are not eligible for bond. On September 5, 2025, the BIA held in Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), that a noncitizen respondent who entered the US without inspection and was placed in removal proceedings is not eligible for bond under INA 235(b)(2)(A). This BIA decision was a marked reversal of policy, as bond had been permitted for noncitizens who entered without inspection for three decades, since the passage of the Immigration Act of 1996. The decision also disregarded INA 236(a), which provides for the release on bond of a noncitizen who is not ineligible under the categories prescribed in INA 236(c), which notably excludes respondents who have entered without inspection. Addressing this discrepancy, the BIA stated that “nothing in the statutory text of section 236(c), including the text of the amendments made by the Laken Riley Act, purports to alter or undermine the provisions of section 235(b)(2)(A) of the INA, 8 U.S.C. § 1225(b)(2)(A), requiring that aliens who fall within the definition of the statute ‘shall be detained for a proceeding under section 240’”. 

Aware that a federal court would not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), the BIA invoked Loper Bright to conclude that the language under INA 235(b)(2)(A) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c), stating: “the statutory text of the INA is not ‘doubtful and ambiguous’ but is instead clear and explicit in requiring mandatory detention of all aliens who are applicants for admission, without regard to how many years the alien has been residing in the United States without lawful status. See INA § 235(b)(1), (2), 8 U.S.C. § 1225(b)(1), (2).”

However, a string of recent district court rulings have relied on Loper Bright to reject the theory that noncitizens who entered without inspection are ineligible for bond as set out in Matter of Yajure Hurtado. These decisions invoke Loper Bright to emphasize that judges must independently interpret INA §§ 235 and 236, rather than automatically deferring to the BIA’s interpretation, and arguing that EWIs are eligible for § 236(a) detention and, thus, bond hearings. The courts reasoned that DHS’s new policy departs from three decades of consistent practice and lacks clear statutory grounding, thereby maintaining bond eligibility for these individuals. See, for example, Barco Mercado v. Francis, Guerreno Orellana v. Moniz, and Pizarro Reys v. ICE.

In Buenrostro-Mendez v. Bondi (5th Cir. 2026) the Fifth Circuit  agreed with Yajure Hurtado, holding that noncitizens who entered without inspection are ineligible for bond. The court addressed the statutory discrepancy by stating that “Section 1226(a) undeniably does work independent from § 1225(b)(2)(A) because only § 1226(a) applies to admitted aliens who overstay their visas, become deportable on many different grounds, or were admitted erroneously due to fraud or some other error… Not only does § 1226(c) sweep in deportable aliens in addition to the inadmissible aliens covered by § 1225(b)(2)(A)…it also eliminates the option of parole for those to whom it applies.” In a dissenting opinion, Justice Douglas found that “Combining the ordinary meaning of ‘seeking’ with the statutory definition of ‘admission,’ there is no need to resort to strained analogies with the college admissions process to determine the meaning of key statutory terms governing detention.”

Nonetheless, most district courts outside the Fifth Circuit have not been persuaded and continue to rule in favor of releasing the citizen using their own independent interpretation of the INA under Loper Bright. District court cases that have cited Buenrostro to date have primarily done so to point out that the Fifth Circuit’s holding is an outlier and nonbinding. See, for example,  Aroca v. Mason, Pascual Jose-de-Jose v. Noem,  Carlos Roldan Chang v. Noem. In a New Jersey district court case, Judge Padin wrote in her opinion that the court was “unpersuaded” by the Fifth Circuit’s decision in Buenrostro, reasoning that “the majority’s interpretation risks rendering substantial portions of the statutory scheme superfluous and internally inconsistent”. The Seventh Circuit preliminarily concluded that the U.S. Department of Homeland Security was not likely to prevail on its argument that “§ 1225(b)(2)(A) covers any noncitizen who is unlawfully already in the United States as well as those who present themselves at its borders,” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1062 (7th Cir. 2025).   Only a handful of district courts have adopted the reasoning laid out by the Fifth Circuit in Buenrostro. See e.g.  D.M.R.D. v. Andrews and Zhuang v. Bondi.  Even the Fifth Circuit’s decision in Buenrostro-Mendez also does not preclude release based on constitutional grounds. In Buenrostro-Mendez, the Fifth Circuit did not consider whether a noncitizen detained under 8 U.S.C. § 1225 may be constitutionally entitled to a bond hearing at the outset of proceedings, or even to release on constitutional grounds. It also leaves intact habeas corpus as a key mechanism for challenging unlawful prolonged detention.

The BIA in Yajure Hurtado invoked Loper Bright to conclude that the language under INA 235(b)(2)(A) is clear and explicit to justify the detention of a noncitizen who entered without inspection without bond. Paradoxically, the majority of courts who have also invoked Loper Bright have done so to justify that they need not pay deference to the BIA’s interpretation of INA 235(b)(2)(A) in Yajure Hurtado. An administrative agency like the BIA cannot use Loper Bright to insulate itself from a court’s independent review of the statute. Only a federal court can invoke Loper Bright to justify why it is not deferring to the agency’s erroneous interpretation of a statute. To date, there have been hundreds of federal court decisions that have not paid deference to Yajure Hurtado and are also not deferring to the Fifth Circuit decision in  Buenrostro-Mendez v. Bondi. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Federal Court Relies on Loper Bright to Overturn EB-1 Denial Based on the Final Merits Determination

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In Mukherji v. Miller, a district court in Nebraska recently set aside the denial of a petition of extraordinary ability on the ground  that the “final merits” determination was unlawful. 

Although the petitioner satisfied five out of the ten criteria for establishing extraordinary under 8 CFR 204.5(h)(3), when only three were needed to be satisfied, the USCIS denied the extraordinary ability petition because the petitioner failed to establish the “high level of expertise required for the E11 immigrant classification through the “final merits determination.” 

As background, an individual can obtain permanent residence in the U.S. under EB-1 by establishing extraordinary ability in the sciences, arts, education, business or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. See INA § 203(b)(1)(A)(i). Furthermore, the individual seeks entry to continue work in the area of extraordinary ability and his or her entry will substantially benefit prospectively the U.S. See INA § 203(b)(1)(A)(ii) & (iii). Unlike most other petitions, no job offer is required and one can even self-petition for permanent residency. Evidence to demonstrate “sustained national or international acclaim” could be a one-time achievement such as a major international award (for example, a Nobel Prize, Oscar or Olympic Gold Medal). If the applicant is not the recipient of such an award, then documentation of any three of the following is sufficient:

  • Receipt of lesser nationally or internationally recognized prizes or awards.
  • Membership in an association in the field for which classification is sought, which requires outstanding achievement of its members, as judged by recognized national or international experts.
  • Published material about the person in professional or major trade publications or other major media.
  • Participation as a judge of the work of others.
  • Evidence of original scientific, scholastic, artistic, athletic or business-related contributions of major significance.
  • Authorship of scholarly articles in the field, in professional or major trade publications or other media.
  • Artistic exhibitions or showcases.
  • Performance in a leading or cultural role for organizations or establishments that have a distinguished reputation.
  • High salary or remuneration in relation to others in the field.
  • Commercial success in the performing arts.

See 8 C.F.R. § 204.5(h)(3)(i)-(x). An applicant may also submit comparable evidence if the above standards do not readily apply.

The Plaintiff in Mukherjee v. Miller contended that this “final merits” determination is not found in the statute or regulation and is taken from the Ninth Circuit’s decision in Kazarian v. USICS, which the USCIS adopted as a nation-wide policy on December 2, 2020. The Court held that the USCIS did not properly create the two step process. Indeed, the USICS unlawfully adopted the final merits determination without notice and comment rulemaking. The final merits determination had the force of law, and the USCIS ought to have ordinarily abided by the notice and comment procedures prescribed by the Administrative Procedure Act, 7 U.S.C. § 553(b). 

In addition, the agency acted arbitrarily and capriciously for failing to acknowledge and reason that it was changing its policy. Pursuant to Encino Motorcars LLC v. Navarro, agencies are free to change their existing policies as long as they provide a reasoned explanation for the change.  Encino Motorcars requires that the agency must display awareness that it is changing its position and that there are good reasons for the new policy. This did not happen with the final merits determination. 

Perhaps the most significant part of the decision is that the court acknowledged  Loper Bright Enterprises v. Raimundo, wherein the Supreme Court in 2024 diminished the validity of deference to an agency’s interpretation of a statute under Chevron.  With the very limited deference after Loper Bright, all questions of law will be determined by the  Court. The validity of the final merits determination is clearly a question of law, not fact. Accordingly the Court found that the two-tier analysis was not valid at its inception.  

Mukherjee v. Miller did not go against Kazarian in its entirety, it only found that the final merits determination was unlawful. In my prior blog entitled The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications under the Employment-Based First Preference I wrote that when Kazarian was first decided, it was received with much jubilation as it was thought that the standards for establishing extraordinary ability would be more straightforward and streamlined. Kazarian essentially holds that a petitioner claiming extraordinary ability need not submit extraordinary evidence to prove that he or she is a person of extraordinary ability. If one of the evidentiary criteria requires a showing of scholarly publications, the petitioner need not establish that the scholarly publications in themselves are also extraordinary in order to qualify as a person of extraordinary ability. This is a circular argument, which Kazarian appropriately shot down.  If Kazarian just stopped there, it would have been a wonderful outcome. Unfortunately, Kazarian had been interpreted to also require a vague and second step analysis known as the “final merits determination,” which can stump even the most extraordinary.  

Now Mukherjee v. Miller has relied on Loper Bright to hold that the final merits determination was unlawful although many courts have adopted it.   Even the Fifth Circuit in Amin v. Mayorkas     adopted the final merits determination, based upon which it upheld the denial of Mr. Amin’s extraordinary ability petition even though he met three of the ten criteria. The Fifth Circuit held that the USCIS did not violate the APA by not adopting a formal rule as the final merits determination was an interpretive rather than a legislative rule and do it did not need to go through notice and comment. The Fifth Circuit issued Amin v. Mayorkas in 2022 before the Supreme Court brought about the demise of Chevron deference.  

The Court in Mukherjee v. Miller while reviewing the merits of the USICS’s decision held that it was an arbitrary and capricious decision. The reviewing officer hailed to articulate the required standard and the failure to meet the standard by the plaintiff. It appeared that the plaintiff did not meet the final merits because she failed to indefinitely stay at the top of her field. The Court held that “[I]t is clear that the Plaintiff in this case was at the top of her field. No one argues that is not accurate. The Agency based its decision on whether she continuously received awards recognizing her status or kept up with that level of production. The Court finds nothing in the statutory scheme that would support such a finding.”  

It remains to be seen whether other courts will also be nudged by Loper Bright to disregard the USCIS’s final merits determination. In Scripps College v. Jaddou, a case decided just prior to Loper Bright, the Court did not discard the final merits analysis but still overturned the USCIS by holding that USCIS cannot and should not, under the cover of the second step final merits determination, be allowed to introduce new requirements outside the parameters of the regulatory criteria or reverse its prior acceptance of evidence under the regulatory criteria. Prior to Mukherjee v. Miller, most courts have clung onto the final merits determination even when reversing the USCIS denial (as in Scripps College), but now future courts have Loper Bright on their side to not pay deference to the final merits determination while  still relying on Kazarian to shoot down the circular argument, which is  that one does not need to submit extraordinary evidence under one of the ten criteria to establish extraordinary ability.