Cyrus Mehta

Navigating the Immigration Maze in an Age of Fear and Hope

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Immigration is one of the most complex areas of the law—so complex that even seasoned lawyers struggle to keep pace with shifting rules, changing interpretations, and unpredictable outcomes.

Yet despite this complexity, people continue to come. They come because the United States has long represented freedom, opportunity, and the promise of a better future. But our immigration system—deeply flawed as it is—too often stands in their way.

A System in Crisis

There are far too few legal pathways for people to come to the United States, whether to reunite with family or to work for employers who genuinely need their skills.

It is unconscionable that highly skilled Indian-born professionals must wait many decades for a green card. These individuals already have bona fide job offers. Their employers tested the U.S. labor market. Their labor certifications were approved. And still they wait—sometimes longer than a human lifetime.

We also see enormous delays in processing petitions for “immediate relatives”—spouses, parents, minor children—people who are supposed to have the most direct legal path. Add to this the unpredictability of visa stamping abroad, and families are thrown into needless uncertainty.

And then comes one of the most frustrating problems: the government repeatedly shifts the goalposts. For instance, a  new public charge policy allows consular officers to deny visas simply because a person has common conditions like obesity or diabetes—a discriminatory and medically unsound expansion of the rule.

Let us not forget that the Trump administration even floated a $100,000 filing fee for H-1B petitions—another unmistakable signal that their objective is not fairness, but exclusion. It then sought to reinterpret and clarify, but caused more confusion. As a result of Trump’s attacks on the H-1B visa program that is widely used by Indian nationals, racists are now openly targeting Indian Americans.

Fear as Policy

As defective as the immigration system already is, President Trump has weaponized it further through cruelty. He rose to power demonizing immigrants, and since his second inauguration in January 2025, he has embraced that cruelty openly.

He empowered people like Stephen Miller and Kristi Noem to unleash ICE in unprecedented ways—detaining noncitizens for lawful speech that displeases the administration.

Foreign students at prestigious U.S. universities have been taken by masked ICE agents simply for protesting Israel’s military operation in Gaza, which has resulted in over 65,000 deaths. 

Visas have been revoked for individuals who criticized the President, including Nobel laureates, or who voiced critical views of Charlie Kirk after his death. All such speech is protected by the First Amendment.

Even U.S. citizens have been caught in these sweeps, creating a level of fear this country has never experienced in modern times. America—once revered as a beacon of freedom—has not seen such weaponization of immigration power since its darkest moments.

Trump and some Republican politicians have openly threatened to deport naturalized citizens in the hope that they can denaturalize them. Mayor-elect Zohran Mamdani has been subjected to vile racist and Islamophobic attacks, all because his ascent represents immigrant power—and that terrifies those who have implemented policies to subjugate them and keep them in line. 

This administration has repeatedly declared that even lawful permanent residents are merely “guests” who may be removed for speech that offends those in power. They portray immigrants as unwelcome, job-stealing, dangerous interlopers—despite the reality that immigrants are the backbone of the labor force in construction, agriculture, caregiving, technology, and countless other sectors.

They imagine an America without immigrants—a fantasy that has never existed and never will.

Authoritarianism Begins With Noncitizens

We must understand this clearly: Authoritarianism rarely begins with citizens. It begins with noncitizens.

Once the rights of immigrants are trampled, as that can be more easily achieved,  this erosion expands outward. By the time citizens recognize the danger, the mechanisms of oppression are already in place.

This is why knowing our rights is essential. You do not have to speak to ICE if approached in the street. Agents need a judicial warrant—not an ICE-issued form—to arrest you.

And we need lawyers willing to defend these rights without fear. Lawyers should also be prepared to challenge the unconstitutional detentions of noncitizens through habeas corpus petitions in federal court. 

The March 2025 White House memo attacking immigration lawyers and Big Law pro bono programs was designed to intimidate us. It echoes the famous line from Henry VI: “The first thing we do, let’s kill all the lawyers.”

The memo claimed lawyers were undermining national security merely for representing asylum seekers. But under the Immigration and Nationality Act, people fleeing persecution have an absolute right to file asylum claims. Ethical lawyers do not file fraudulent cases. Representing the vulnerable is not a threat to America—it is a reflection of America at its best.

The Path Forward

We must vote out politicians who fear-monger on immigration and lack the courage to reform the system. We need a rational immigration framework with more legal pathways to unite families and allow people to work in the US.

We must reject the false narrative that immigrants harm the country. The truth has always been clear: Immigrants are good for America.

 

The Parsi Parable: A Lesson for Our Time

When a group of  Zoroastrian known as Parsis fled Persia and sought refuge in India over a thousand years ago, the local king sent them a vessel filled to the brim with milk, signaling that his land was full.

The Parsi leader asked for a spoonful of sugar. He stirred it gently into the milk without spilling a drop, saying: “Like this sugar, we will sweeten your land without displacing anyone.”

The king understood, and the Parsis went on to enrich India in immeasurable ways— economically, culturally, intellectually, and spiritually.

That story captures everything immigration truly represents:

Newcomers do not weaken a society—they enrich it.

They do not overflow the vessel—they transform it for the better.

 

Immigrant Power Today

Zohran Mamdani’s victory in New York is one such modern testament. In his words:

“New York will remain a city of immigrants, a city built by immigrants, powered by immigrants, and as of tonight led by an immigrant.”

That is the power of immigrant communities.

That is how we resist authoritarianism.

And that is why we must continue to fight—for justice, for humanity, and for the sweetness that immigrants, like sugar in milk, bring to every nation that welcomes them.

(This blog is based Cyrus Mehta’s prepared remarks as a keynote speaker at an IndiXspark event on November 15, 2025 in New York City)

Cyrus Mehta & Kaitlyn Box*

Reappraisal of the Encouragement Provision as Interpreted in United States v. Hansen under Trump’s Immigration Policies  

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In June 2023, the Supreme Court issued its decision in United States v. Helaman Hansen, a case that posed the question whether the federal criminal prohibition on encouraging or inducing unlawful immigration for commercial advantage or private financial gain in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) is unconstitutionally overbroad. As discussed in our first blog on the Hansen case, Helaman Hansen ran an organization called Americans Helping America Chamber of Commerce (“AHA”) that purported to  help undocumented immigrants become U.S. citizens through adult adoption. Hansen falsely advised these individuals that many undocumented immigrants had successfully become U.S. citizens through his program. In reality, it is not possible to obtain U.S. citizenship through adult adoption. Hansen was convicted of several counts of fraud in California, and was found to have violated INA §274(a)(1)(A)(iv)  because he encouraged or induced individuals who participated in his program to overstay their visas on two occasions. He first moved to dismiss the two fraud counts that were based on a violation of INA §274(a)(1)(A)(iv)  on the ground that this provision is facially overbroad, void for vagueness, and unconstitutional as applied to him, but the district court denied his motion. 

Hansen then appealed to the Ninth Circuit, arguing in relevant part that INA §274(a)(1)(A)(iv) is facially overbroad under the First Amendment. The government argued that subsection (iv) was limited to speech integral to criminal conduct, specifically solicitation and aiding and abetting. The Ninth Circuit disagreed, holding that the provision prohibits a broad range of protected speech. One could violate INA §274(a)(1)(A)(iv)  merely by “knowingly telling an undocumented immigrant ‘I encourage you to reside in the United States’”, the court reasoned. The court held INA §274(a)(1)(A)(iv)  is unconstitutionally overbroad, and reversed Hansen’s convictions under this provision.  The government is seeking review of the Ninth Circuit’s decision at the Supreme Court, arguing in part that it has historically construed the “encourage” or “induce” language of INA §274(a)(1)(A)(iv)  very narrowly to prosecute those who engaged in serious criminal conduct. 

The same First Amendment overbreadth argument at issue in Hansen was addressed two years ago in United States v. Evelyn Sineneng-Smith. We discussed this case at length in our original blog post on Hansen, excerpts of which are reproduced here. United States v. Evelyn Sineneng-Smith involved an unauthorized practitioner who operated an immigration consulting firm in San Jose, California. Sineneng-Smith represented mostly natives of the Philippines who were unlawfully employed in the home health care industry and who sought to adjust their status to permanent residence through the filing of a labor certification by an employer.  These clients were not eligible to apply for adjustment of status in the United States under INA § 245(i) which expired on April 30, 2001 and they also did not appear to be grandfathered under this provision. Although Sineneng-Smith knew that her clients were not eligible under 245(i), she continued to sign retainer agreements with them and tell them that they could apply for green cards in the United States. At least two of the clients testified that they would have left the country if they were advised that they were not eligible to apply for permanent residence.

Sineneng-Smith was convicted by a jury on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain, in violation of INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i). She was also convicted on two counts of mail fraud in violation of 18 U.S.C. §1341. The Ninth Circuit reversed her convictions under INA §274(a)(1)(A)(iv) and INA §274(a)(1)(B)(i) on the ground that “encourage” and “induce” under their plain meaning restrict vast swaths of protected expression in violation of the First Amendment despite the government countering that the statute only prohibits conduct and a narrow band of unprotected free speech. The court provided several examples of seemingly innocuous conduct that could constitute a criminal violation of the provision, including one that is especially troubling for immigration lawyers – an attorney telling her client that she should remain in the country while contesting removal, because, for example, non-citizens within the United States have greater due process rights than those outside the United States, and because as a practical matter, the government may not physically remove her until removal proceedings have been completed. The Supreme Court ultimately dismissed the case on other grounds, particularly for having departed from the party presentation principle. 

The Supreme Court ultimately upheld Hansen’s conviction, noting that, in order to challenge a law as overbroad, “[the] law’s unconstitutional applications must be realistic, not fanciful, and their number must be substantially disproportionate to the statute’s lawful sweep”. The Court also rejected the idea that the encouragement provision is unconstitutionally overbroad. Justice Amy Coney Barrett, writing for the majority, acknowledged that the terms “encourage or induce” can have a broad meaning. However, the Court held that their usage in the encouragement provision is in the “specialized, criminal-law sense—that is, as incorporating common law liability for solicitation and facilitation”, which also corresponds to the widespread understanding of these terms when the law was passed by Congress in 1885, and later modified in 1917. The Court also rejected Hansen’s argument that statutory revisions eliminating words like “assist” and “solicit” render the provision overbroad, stating: “Hansen believes these changes dramatically broadened the scope of clause (iv)’s prohibition on encouragement, but accepting that argument would require the Court to assume that Congress took a circuitous route to convey a sweeping — and constitutionally dubious — message. The better understanding is that Congress simply streamlined the previous statutory language”. 

The Court found that the encouragement provision “does not have the scope Hansen claims, so it does not produce the horribles he parades”. “To the extent that clause (iv) reaches any speech”, the Court determined, “it stretches no further than speech integral to unlawful conduct”. The majority opinion went on to state the “clause (iv) criminalizes speech that solicits or facilitates a criminal violation, like crossing the border unlawfully or remaining in the country while subject to a removal order.” Even if the encouragement provision does not apply as broadly as Hansen argued, even these applications could be problematic for immigration lawyers and advocates. Lawyers might advise their clients that they could apply for asylum or related relief, if they enter the United States at the border, for example, or that they can attempt to reopen a removal order if they remain in the United States. 

In her dissent, joined by Justice Sonya Sotomayor, Justice Ketanji Brown Jackson argued that the Court’s decision was an attempt to retroactively interpret as constitutional a provision is facially overbroad, stating: “If this Court is willing to redline Congress’s work to save it from unconstitutionality, it ‘sharply diminish[es] Congress’s incentive to draft a narrowly tailored law in the first place”. Justice Jackson also referenced the Ninth Circuit’s holding in Hansen v. United States that the provision was overbroad in her dissent. 

Although not considered by the Supreme Court in its decision, the previous Ninth Circuit case,   illustrates how easily an immigration lawyer could violate INA §274(a)(1)(A)(iv) by discussing even general immigration policies and consequences with undocumented clients. In United States v. Henderson, 857 F. Supp. 2d 191 (D. Mass. 2012), the government prosecuted a U.S. Customs and Border Patrol supervisor under this provision for “advis[ing her undocumented] cleaning lady generally about immigration law practices and consequences.” 857 F. Supp. 2d at 193. As Judge Bumatay points out in his dissent of the Ninth Circuit’s decision denying an en banc hearing,  the conduct at issue in Henderson may be more egregious than it first appears – the CBP supervisor knowingly engaged an undocumented employee and “coach[ed] the employee on how to evade immigration authorities while residing in the country”. Still, the Ninth Circuit majority in Hansen cited the example of Henderson being prosecuted for advising her cleaning lady about immigration law practices and consequences, and thus “makes plain the ability of subsection (iv) to chill speech.” 

A new Department of Education Final Rule that excludes organizations who have a “substantial illegal purpose” from qualifying as employers under the “public service loan forgiveness (PSLF)” program represents another effort by the Trump administration to target immigration lawyers and advocates. The final rule was published in response to a March 2025 Executive Order that directs the Secretary of Education to propose revisions to 34 C.F.R. 685.219, Public Service Loan Forgiveness Program to ensure that “individuals employed by organizations whose activities have a substantial illegal purpose shall not be eligible for public service loan forgiveness”. Among the “activities that have a substantial illegal purpose” enumerated in the executive order and final rule is “aiding or abetting violations of 8 U.S.C. 1325 or other Federal immigration laws”. A group of non-profit organizations including the American Immigration Council have already filed a lawsuit challenging the rule, arguing that it “will make it more difficult for employers in certain fields, such as advocacy on behalf of immigrants, to recruit and train employees, and will chill politically disfavored but legal activities by PSLF employers…The Rule is contrary to the PSLF statute, exceeds the Department’s regulatory authority, and violates the constitutional rights of nonprofits whose employees are statutorily eligible for PSLF.”

In our first blog on the Hansen case, we advised that practitioners can refrain from expressly advising or encouraging clients to remain in the U.S. in violation of the law, and instead outline both the adverse consequences and potential benefits of this course of action to clients. Immigration lawyers should also keep in mind that ABA Model Rule 1.2(d), which has analogs in many state rules of professional responsibility, states that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” While it may be unlikely that an immigration lawyer advising an undocumented client to remain in the United States in order to become eligible for an immigration benefit down the road would be prosecuted under INA §274(a)(1)(A)(iv), but presenting the general consequences and benefits of remaining in the U.S. in violation of the law, as well as staying within the confines of ABA Model Rule 1.2(d), can offer practitioners some guidelines for avoiding potential liability. 

AILA and numerous other immigration organizations filed an amicus brief to the Supreme Court in Hansen v. United States that pointed out the troubling implications that the encouragement provision could have for immigration lawyers:

Elliptical counseling is particularly ill-suited to the immigration context, which is high-stakes and complex. Clients in this area need straightforward advice about what to do. And it would be especially strange to fault attorneys for advising noncitizen clients about remaining in the United States in violation of civil immigration laws, when those laws themselves condition numerous benefits on physical presence in the United States.

As we noted previously in a second blog that discusses the ethical issues raised by Hansen, a lawyer who hedges their  advice in conditional probabilities may be at risk of failing to provide competent representation. Even the government’s brief in United States v. Hansen assured that lawyers  will not be prosecuted if  they advise their clients that they are unlikely to be removed. This is in contrast to a lawyer strongly recommending that the undocumented client remain in the US in the hope of seeking a benefit in the future, and the government’s brief or the Supreme Court in its final decision did not provide any assurance that such advice would insulate the lawyer from prosecution under INA §274(a)(1)(A)(iv). The government offered the example of a lawyer advising a client in removal proceedings who has been released on bond to stay in the US but that was different from advising an undocumented client whose US citizen child will turn 21 in two years to remain in the US, which is when the parent would qualify for adjustment of status.

Some clients may be unable to interpret opaque advice from their lawyers, and a lawyer may not provide adequate representation in this scenario unless she gives the client a clearer recommendation.  ABA Model Rule 1.1 and some state analogs caution that “a lawyer shall provide competent representation”, the “shall” language leaving little room for error. Additionally, as noted above,  it may be necessary for an immigration lawyer to frankly advise an undocumented client to stay in the US in order to apply for a benefit like adjustment of status, a T visa, or DACA, which would be unavailable to the client if she left the country. It is difficult to imagine how a lawyer could provide competent representation to their client without outlining the immigration benefits that the client may be eligible for and advising them how to obtain them by remaining in the US.  INA §274(a)(1)(A)(iv) continues to chill the ability of the lawyer to provide such advice and thus inhibit competent representation. Operating within the contours of Rule 1.2(d) might impede rather than facilitate competent representation in the immigration context. The Supreme Court in in United States v. Hansen did not provide  more clarity, and the government’s assurance that they would not prosecute lawyers was under the Biden administration  would likely not hold under the Trump administration whose objective is to remove as many noncitizens from the US under the pretext that the US has been subjected to an alien invasion.  The White House Memo encouraging the prosecution and sanctioning of immigration lawyers  because they allegedly coach their clients to  “circumvent immigration policies enacted to protect our national security and deceive the immigration authorities and courts into granting them undeserved relief” further diminishes the assurances that the government provided in United States v. Hansen. Immigration lawyers will need to continue to carefully  operate within the framework of ABA Model Rule 1.2(d) even if it curbs their ability to provide competent representation to clients. 

(This blog is for informational purposes and should not be viewed as a substitute for legal advice). 

 

Cyrus Mehta

Immigrant Power Through Mamdani’s Historic Win As NYC Mayor

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When I despair, I remember that all through history the way of truth and love have always won. There have been tyrants and murderers, and for a time, they can seem invincible, but in the end, they always fall. Think of it – always.

MK Gandhi

Zohran Mamdani has made history. He will be New York City’s youngest mayor since the 19th century, and its first Muslim and first South Asian mayor. He is also an immigrant. Born in Uganda to parents of Indian descent (his mother is Mira Nair – a famous filmmaker) he will be the first naturalized immigrant to serve as mayor since Abraham Beame in the 1970s.

President Trump has vilified immigrants. He rose to power by demonizing them. Since his second inauguration in January 2025, Trump has even taken great pride in being cruel to them. He has allowed his minions like Steven Miller and Kristi Noem to  unleash ICE agents who have mercilessly detained noncitizens  even based on free speech that his administration has disfavored.  Foreign students at prestigious US universities have been picked up by masked ICE agents without warning only for protesting against Israel’s military operation in Gaza that has resulted in over 65,000 deaths.  More recently, the administration has also revoked the visas of people, including Nobel laureates,  who have been critical of the administration or the visas of those who expressed critical views of Charlie Kirk after his death. All such speech that resulted in people being penalized is protected under the First Amendment of the US Constitution.   Even US citizens have been caught up in these ICE roundups causing great fear in people, irrespective of whether they are citizens or noncitizens. This sort of fear has never  been experienced before in America, which has before Trump been revered as the cradle of democracy and a beacon of freedom.

Trump and some Republican members of Congress have even threatened to deport naturalized citizens. Even Mamdani has been and continues to be subject to such threats. He has also been subjected to the most vile racist attacks and Islamophobia.

Trump has sought to expand executive power as much as he can, and this overreach has caused noncitizens to fear that they live in a police state as the administration has the power to detain and deport them under US immigration laws. It can also detain them at remote detention centers and also at the prisons of other countries that have made arrangements with the United States.

Trump and his cabinet officials have repeatedly stated on social media that immigrants even lawful permanent residents are guests in the country, and can be removed or banned from entering for speech that is disfavored by the administration, including posts on social media.  The current administration has viewed immigrants as being unwelcomed, stealing the jobs of Americans and even as dangerous criminals. Through its social media posts, the  Trump administration claims that they have been given a mandate to take back America from immigrants by portraying the US labor force  as dominated by white people. This is so far removed from reality as the labor force at a construction site or farm is dominated by immigrants, but this administration lives in a fantasy world of an America that is devoid of immigrants who have in fact always been present and built the country from its very founding.

It is against this back drop that Mamdani through this historic victory offers a glimpse of what America can become after Trump. Voting for him was an act of defiance and hope reflective of the New York spirit that may not currently epitomize all of America but lays the groundwork for its transformation. Mamdani ran a joyous campaign that celebrated the wonderful diversity of New York and mingled with immigrant communities by dining and dancing with them in a most down to earth manner. He had late night dinners with taxi drivers  while Trump held an over the top Great Gatsby-themed party in Mar-a-Lago as SNAP benefits ran out due to the shut down.   Indeed, it was voter dissatisfaction with Trump that helped fuel Democratic wins in New Jersey, Virginia and other key races across the country. Even the newly elected Virginia Lt Governor Ghazala Hashmi is an Indian born Muslim.

Mamdani’s election proves that immigrants have power, and no matter what this administration claims to the contrary, America has been and will continue to be a nation of immigrants. Immigrants have not just contributed to America through their achievements, hard work and ingenuity, but by voting for Mamdani they have also in this election put the brakes on Trump’s growing authoritarianism.

As Mamdani aptly said in his victory speech: “New York will remain a city of immigrants, a city built by immigrants, powered by immigrants, and as of tonight led by an immigrant.”

Cyrus Mehta

USCIS’s October 20 Clarification Will  Not Make the $100,000 H-1B Fee Disappear

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By Cyrus D. Mehta and Kaitlyn Box*

In a prior blog, we detailed Presidential Proclamation implementing a new $100,000 fee that applies to certain H-1B workers. The initial Proclamation created concern and confusion for H-1B beneficiaries and U.S. employers alike, as it left unclear which types of H-1B petitions would be impacted. On October 20, 2025, USCIS issued guidance stating that “for H-1B petitions subject to the Proclamation, petitioners must submit a copy of the proof of the payment from pay.gov or evidence of an exception from the fee from the Secretary of Homeland Security at the time of filing the H-1B petition. Petitions subject to the $100,000 payment that are filed without evidence of payment or the grant of an exception will be denied.”

USCIS guidance also clarifies that the Proclamation does not apply to “any previously issued and currently valid H-1B visas”,  “any petitions submitted prior to 12:01 a.m. eastern daylight time on September 21, 2025”, and “does not prevent any holder of a current H-1B visa, or any alien beneficiary following petition approval, from traveling in and out of the United States.” Moreover, “[t]he Proclamation also does not apply to a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, that is requesting an amendment, change of status, or extension of stay for an alien inside the United States where the alien is granted such amendment, change, or extension, and a beneficiary of an approved petition “will not be considered to be subject to the payment if he or she subsequently departs the United States and applies for a visa based on the approved petition and/or seeks to reenter the United States on a current H-1B visa.”

Ambiguity remains, however, in which categories of H-1B beneficiaries will be subject to the new fee. For example, even the updated guidance does not address whether the fee would apply if an H-1B amendment or extension petition was filed on behalf of a noncitizen who was on a brief trip outside the U.S. To ensure that they are exempt from the Proclamation, however, beneficiaries caught in this situation who have valid visas could simply travel back to the United States before the H-1B petition is filed, a scenario in which the fee is clearly inapplicable. However, individuals who were counted against the H-1B cap because they were terminated by their H-1B employer or have reached the six year maximum in H-1B status and are awaiting I-140 approval may no longer have valid H-1B visas. If new H-1B petitions are filed on behalf of these individuals, it is unclear whether the employer would be required to pay the $100,000 fee. 

The updated guidance also clarifies that  if a petition filed at or after 12:01 a.m. eastern daylight time on September 21, 2025, requests a change of status or amendment or extension of stay and USCIS determines that the alien is ineligible for a change of status or an amendment or extension of stay (e.g., is not in a valid nonimmigrant visa status or if the alien departs the United States prior to adjudication of a change of status request), the Proclamation will apply and the payment must be paid according to the instructions provided by USCIS. This could impact one whose H-1B extension or amendment has been denied. If the employer files a new petition for consular processing so that the beneficiary could travel overseas and apply for an H-1B visa stamp at the US Consulate, this petition would unfortunately be subject to the $100,000 fee. On the other hand, if a motion to reopen or reconsideration is filed and the case gets successfully reopened, the employer can avoid the $100,000 fee. Of course, there is a lot of uncertainty with a motion to reopen and reconsider with respect to the time it will take and the outcome. If the motion to reopen or reconsider fails, the H-1B worker might also have accrued more than 6 months of unlawful presence and would face the 3 or 10 year bar to reentry. 

USCIS’ updated guidance also does not indicate whether the fee applies to H-1B1 visas for Chilean and Singaporean nationals, although the U.S. Embassy of Singapore stated in a Facebook post on October 29, 2025 that the Proclamation “does not apply to the H-1B1 visa for Singaporean citizens. There is no change to the H-1B1 process at this time.”

Even if the scope of the Proclamation has been clarified since its promulgation apply to a narrower set of H-1B beneficiaries than initially appeared to be impacted, the new fee will nonetheless have a devastating impact on U.S. companies who rely on H-1B workers. It is clear that the fee will apply to new H-1B petitions filed on behalf of candidates selected in next year’s H-1B cap. However, if such candidates are in the US in a status such as F-1, and get selected under the H-1B lottery, they should not be subject to the $100,000 fee.  On the other hand, if such prospective candidates enter the US in a nonimmigrant status to try their luck at changing status to H-1B in the next March 2026 lottery to avoid the $100,00 fee, the USCIS could potentially still use its discretion in denying the change of status. Worse still, the prospective candidate would be subject to expeditious removal at the port of entry. 

 Given how unaffordable this fee will be for many, it is anticipated that a number of U.S. employers will be forced to stop filing new H-1B petitions altogether. Companies like Cognizant, Tata Consultancy Services, and Walmart, which traditionally employed large numbers of H-1B workers have already signaled that they will limit the number of H-1B petitions that they file going forward. Even cap exempt employers such as universities and non-profits affiliated to universities or non-profit research organizations will be subject to the $100,000 fee if the candidate cannot fall under any of the exceptions set forth in the October 2, 2025 clarification. 

After the October 20, 2025 clarification, many in the immigration community expressed relief that this guidance had blunted the impact of the Proclamation, but the clarification does not really address the fact that the Proclamation will continue to apply to many H-1B cases with a few exceptions. As we have stated in our prior blog, this Proclamation has been issued in violation of the INA, and there are two court challenges already to the Proclamation, and we hope that the courts will strike it down very soon. 

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

 

Cyrus Mehta

Board of Immigration Appeals Allows Immigration Judges to Disregard Party Stipulations

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The Board of Immigration Appeals in Matter of J-H-M-H held on October 7, 2025 that even if the parties in a case – the noncitizen respondent and the government – have stipulated to certain aspects of the case, Immigration Judges exercise independent judgment and are not required to accept party stipulations. In this case, the respondent and the DHS submitted a joint memorandum  in October 2023 before the Immigration Judge stipulating that the respondent identified as a transgender woman, that the testimony would be consistent with the written materials submitted, and that the respondent was eligible for deferral of removal under the regulations implementing the Convention Against Torture. The IJ rejected the stipulation and set the case for hearing to take testimony. The respondent did not testify in support of the claim and sought to rely on the contents of the application, the personal statement and the stipulation. The IJ denied relief under CAT.

In their appeal, the respondent relied on the Board’s 1989 decision in  Matter of Fefe, which held that at a minimum an asylum applicant take the stand, be placed under oath and be questioned whether the information in the written application  is complete, and that the examination of the respondent will be brief only where the parties have stipulated that the applicant’s oral testimony would be consistent with their written application and be believably presented.  The Board, however, held that Matter of Fefe is no longer binding preceded as it predated the enactment of INA 240(b)(4)(B) in 1996. This provision allows noncitizens to examine evidence against them, present evidence on their own behalf and to cross-examine witnesses. Yet,  the Board recently held in September 2025 in Matter of H-A-A-V- that an IJ may pretermit an asylum application without a full evidentiary hearing on the merits of the claim and also held that Matter of Fefe is no longer binding precedent. It is paradoxical that the Board affirmed an IJ’s insistence to hold a hearing despite a joint stipulation in Matter of J-H-M-H– but affirmed an IJ’s ability to pretermit an asylum application in Matter of H-A-A-V- without a full evidentiary hearing on the merits of the claim.

What does this case mean for future cases? We often stipulate with the DHS attorney on various aspects of the case. For example, there could be a stipulation on the bona fides of the marriage in a review of the I-751 petition in immigration court. The parties may stipulate that allegations made by a foreign government through an Interpol Red Notice against the respondent have no basis and should not be considered when adjudicating an asylum or adjustment application.  Stipulations indeed encourage efficiency and allow the parties to focus on the essential aspect of the case. Under the Trump administration, an IJ may not want to go along with a stipulation out of fear that he or she may get fired. Or a newly appointed military judge inexperienced in immigration law who may not be favorably inclined to grant relief or benefits may want to override a stipulation. 

Stipulations are especially critical in protecting vulnerable clients with mental competency issues. They could include both children and adults with diminished capacity. If they risk facing substantial harm, a joint stipulation where the parties can agree to the respondent’s eligibility for asylum and related relief can serve as an adequate protective measure if the respondent may be unable to testify due to diminished capacity.  A lawyer who represents a client with diminished capacity is required to seek protective action if the client will face harm under ABA Model Rul 1.14, and a stipulation would be one way to protect the client with diminished capacity.  

The Board cited the regulation at 8 CFR 1003.10(b) to uphold the IJ disregarding the stipulation in Matter of J-H-M-H: “In deciding the individual cases before them…immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is necessary or appropriate for the disposition or alternative resolution of such cases.” However, this regulation does not preclude a stipulation from being considered binding on the parties. 

The BIA in Matter of J-H-M-H has unfortunately empowered IJs to disregard stipulations, which in turn would undermine efficiency and result in more backlogs. If there is no case or controversy between the government and the respondent, the IJ ought not be playing any role. This decision promotes more inefficiency and backlogs in an already dysfunctional system.   Immigration practitioners must be prepared to go through a full-fledged hearing  even if there has been a stipulation in case an IJ insists on a full hearing. On the other hand, under Matter of H-A-A-V-, as IJ’s have the power to pretermit asylum  applications without a full evidentiary hearing, practitioners must submit comprehensive applications to ensure that the respondent can establish prima facie eligibility, and in the event of a pretermination, there is a sufficient basis in the record to appeal the decision. 

[This blog is for informational purposes only and should not be considered as a substitute for legal advice]

Cyrus Mehta

Trump’s Reshaping of the H-1B Visa in the Manner He Chooses is Further Demonstration of Authoritarianism

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By Cyrus D. Mehta and Kaitlyn Box*

On September 24, 2025, the Department of Homeland Security (DHS) promulgated a new proposed rule to introduce a “weighted selection” system for H-1B cap-subject petitions. The new proposed system is aimed at favoring the “allocation of H-1B visas to higher skilled and higher paid aliens”.

Pursuant to the proposed rule, each H-1B lottery registration would be categorized based on the Department of Labor (DOL)’s Occupational Employment and Wage Statistics (OEWS) wage levels and entered into the lottery accordingly:

  • Wage Level IV entries would be added to the selection pool four times
  • Wage Level III, three times
  • Wage Level II, twice
  • Wage Level I, once

The proposed rule makes clear that “each unique beneficiary would only be counted once toward the numerical allocation projections, regardless of how many registrations were submitted for that beneficiary or how many times the beneficiary is entered in the selection pool.”

The system outlined in the proposed rule would have a devastating impact on U.S. employers and H-1B beneficiaries alike. Wage levels for some industries are much higher than others, so U.S. employers who are unable to pay a level IV wage for a Software Developer (SOC Code 15-1252), for example, which exceeds $100,000 in many geographic areas, will have a lower chance of candidates being selected in the H-1B lottery. Candidates in fields that tend to be lower-paying, such as Acupuncturists (29-1291.00) will have a greater chance of being selected, as employers may be better positioned to offer a Level IV wage if it is still relatively modest. This measure is also likely to deter U.S. employers from sponsoring new graduates for H-1B employment, as a level I wage is often the one that applies to an entry-level position.

This proposed rule is one of a number of measures aimed at eviscerating the H-1B visa program, together with the new $100,000 fee that applies to certain H-1B workers, detailed in our prior blog. This fee will have the effect of pushing many H-1B workers out of the U.S. labor market. Industries like information technology, which depend heavily on H-1B workers because there is not enough U.S. talent to fill open positions, will be impacted the most severely.

These measures are not only detrimental to the U.S. economy and H-1B workers alike, but are also a further example of the Trump administration’s disregard for  laws enacted by Congress, like his imposition of tariffs, firing of federal employees, including Immigration Judges whose decisions he does not like and taking revenge on former government officials he does not like, as with the indictment of James Comey. Trump has likely overstepped his authority as president by unilaterally imposing the new $100,000 fee, which is arbitrarily high and not authorized by the statute. Although Trump is proposing a rule to skew selections in favor of H-1B candidates who will be paid higher wages, there is nothing in the INA that authorizes weighting H-1B selections based on the amount of the offered wage.

CNN’s Fareed Zakaria  cited the proclamation implementing the $100,000 fee as evidence that the “America is moving down the path of illiberal democracy.” We agree.

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

Cyrus Mehta

Poking Holes at the Poorly Drafted Proclamation Banning H-1B Workers through a $100,000 Fee

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By Cyrus D. Mehta and Kaitlyn Box*

The Proclamation banning H-1B workers unless a $100,000 fee is paid is so blatantly unlawful that it rewrites parts of the INA. However, a successful challenge to the proclamation – after the Supreme Court upheld Trump’s travel ban for nationals of mainly Muslim countries under INA 221(f) in Trump v. Hawaii – is not a foregone conclusion. This Proclamation is also issued pursuant to INA 221(g).

The Proclamation rehashes much of the objections to the H-1B visa program that have become outdated and seem to cast Indian heritage IT firms in an unfavorable light. H-1B workers are no longer cheap labor and provide great value to US companies, which in turn create more jobs for US workers. H-1B workers are mostly paid six figure salaries. The rules also ensure that H-1B workers are paid the higher of the prevailing or actual wage. A court may not challenge the President’s rationale behind the proclamation, but a court could still evaluate whether the imposition of the $100,000 fee rewrites H-1B law or only supplants it. It  is a complete rewrite of the law, and so a court should be able to distinguish this proclamation from Trump vs Hawaii. The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice. Trump is not a King, and if he likes to be King, he should not be given unbridled power to rewrite provisions of the INA that Congress has enacted. 

Otherwise, it makes a mockery of the separation of powers doctrine, which is a defining feature of democracy because it distributes governmental authority among three distinct branches – legislative, executive and judicial.

Previously too when Trump imposed a similar ban, on October 1, 2020, U.S. District Judge Jeffrey S. White issued a preliminary injunction against the Trump administration’s June 2020 proclamation that suspended the entry of foreign nationals on H-1B, L-1, H-2B and most J-1 temporary visas. Judge White ruled the president does not possess a monarch’s power to cast aside immigration laws passed by Congress. The order in NAM v. DHS prevented the State Department and Department of Homeland Security from “engaging in any action that results in the non-processing or non-issuance of applications or petitions for visas in the H, J, and L categories which, but for Proclamation 10052, would be eligible for processing and issuance.” See our prior blogs on challenging Trump’s bans under INA 221(f) here and here, and discussing NAM v. DHS here. 

 USCIS Director Edlow’s memo thankfully tamps down the widespread panic that the initial Proclamation caused and the $100,000 supplemental fee applies to H-1B petitions filed after 12.01 AM ET on September 21, 2025. The threat of litigation and the opposition from corporate America and universities forced the Trump administration to back off a bit.

However, the Proclamation was poorly drafted and did not state that it would apply to petitions filed on or after September 21, 2025 and lawyers had to do their job to advise clients consistent with the language of the Proclamation. The guidance clearly stated that the fee would apply to H-1B workers outside the US after September 21, 2025. Therefore, it was disingenuous of the White House to falsely accuse “corporate lawyers and others with agendas” for “creating a lot of FAKE NEWS around President Trump’s H-1B Proclamation”

Edlow’s memo does not make things clear at all. We do not know whether the Proclamation would apply to H-1B extensions filed after September 21, 2025 for workers who are outside the US and will apply for H-1B visa stamps assuming they were the subject of approved H-1B petitions filed before September 21, 2025 whether by the same or a different employer.

The Edlow memo also does nothing for the future of the H-1B program. Cap exempt employers who are universities and nonprofits affiliated with universities or research institutions will be hit with the $100,000 fee when they file a new petition. After next year’s H-1B lottery selections in 2026, employers will have to also pay the $100,000 fee for any new petition. It will be  impossible  for employers to hire talented students from US universities. 

The White House subsequently issued an H-1B FAQ , but it again creates more confusion. It states that the Proclamation “requires a $100,000 payment to accompany any new H-1B visa petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025. This includes the 2026 lottery, and any other H-1B petitions submitted after 12:01 a.m. eastern daylight time on September 21, 2025.”  The Proclamation, because it is based on INA 212(f) which addresses the “entry of any aliens” or of “any class of aliens”, should not apply to someone inside the US who is seeking an extension of stay, and it should also not apply to a change of status to H-1B in the US, even if the most recent White House guidance, which again is as poorly drafted as the prior clarifications and the Proclamation itself, does not state it. For example, if one is currently in F-1 status, the employer applies for this person in the 2026 H-1B lottery,  the case gets selected and the new petition is filed as a change of status from F-1 to H-1B while the person has  always been in the US, the $100,000 fee under the Proclamation should arguably not apply.  The same would hold true if a non-profit cap exempt employer files a new H-1B petition after September 21, 2025 and requests the change of status for a beneficiary from F-1 to H-1B status. 

 The imposition of this fee will in effect kill the H-1B visa program and will no longer attract foreign talent to the shores of the US. US companies instead will also flee the US so that they can hire this talent overseas. Trump is in effect has killed the goose that laid the golden eggs by imposing this atrocious fee.

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

Cyrus Mehta & Kaitlyn Box*

BIA Grasps for Loper Bright Like a Drowning Person Grasps for Straws

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By Cyrus D. Mehta and Kaitlyn Box*

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) despite allowing bond since the passage of the Immigration Act of 1996. Mr. Yajure Hurtado entered the United States without inspection in November 2022. He was later granted Temporary Protected Status, but that designation expired on April 2, 2025, and he was thereafter apprehended and placed in removal proceedings. He requested bond, but the Immigration Judge indicated that he did not have the jurisdiction to set bond given the circumstances of Mr. Yajure Hurtado’s case and, in the alternative, that bond would be denied because Mr. Yajure Hurtado posed a flight risk. 

 The BIA affirmed that an IJ does not have the jurisdiction to grant the bond request because any noncitizens present in the US without inspection are applicants for admission pursuant to INA 235(b)(2)(A) and subject to mandatory detention. 

After almost three decades, the BIA finds now finds that the language in INA 235(b)(2)(A) is clear, but completely 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 do not make reference to respondents who have entered without inspection. The BIA addressed this discrepancy but stating 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’”.

This re-interpretation of the applicable statutory provisions by the BIA will result in the detention of respondents even if they have been in the United States for many years and have a meritorious application for relief. The BIA knows that a federal court will not give deference to its interpretation of the ambiguity posed by two competing statutory provisions, INA 235(b)(2)(A) and INA 236(c), and so preemptively invoked Loper Bright v. Raimondo, 603 US 369 (2024) to conclude that the language under INA 235(b)(1)(2) is clear and explicit without regard to the contradiction posed in neighboring INA 236(c). In Loper Bright v. Raimondo, which was discussed at length in a prior blog, 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. 

The BIA in Yajure Hurtado invoked Loper Bright, 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). The Supreme Court in Loper Bright did not hold that the long-standing practice of the government can somehow change, or even eviscerate, explicit statutory text that is contrary to that practice.” But the maze of statutory provisions, which include INA 235(b)(1)(2)(A) and INA 236(c) and 30 plus years of allowing bond,  do not clearly and explicitly authorize mandatory detention for noncitizens who entered without inspection. 

AILA Executive Director Ben Johnson aptly remarked, “Stripping immigration judges of their authority to conduct bond hearings or redetermine custody for potentially millions is a disastrous plan. Without justification, individuals who have patiently awaited their fair day in court will now be indiscriminately detained. This effectively eradicates the possibility of bond for many, regardless of their long-standing residence, employment, or contributions to our society. Detaining vast numbers without judicial review, often in inhumane conditions, will inflict irreparable harm.” This concern is further exacerbated by the recent Supreme Court decision in Noem v. Perdomo, which permits ICE to detain and remove individuals based on racial profiling. Those who entered without inspection face detention without bond until removal, even if their detention is solely due to the color of their skin.

It is hoped that a federal court through a habeas corpus petition quickly reverses the BIA under Loper Bright, the very precedent that the BIA has clutched onto like a drowning person grasping for straws!

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

 

Cyrus Mehta & Kaitlyn Box*

Neighborhood Snooping: USCIS’s New Roadblock to Citizenship

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USCIS seems to be obsessed about heightening the good moral character standard for citizenship for the purpose of delay.

On August 19, 2025 USCIS announced that it would evaluate good moral character in the naturalization context to encompass a “holistic assessment of an alien’s behavior, adherence to societal norms, and positive contributions that affirmatively demonstrate good moral character”.

As if that was not enough to make naturalization more burdensome, on August 22, 2025 USCIS announced that it would resume neighborhood investigations to cover the vicinity of an applicant’s place of residence and employment for at least the 5-year period prior to filing the application for naturalization. The authority for conducting neighborhood investigations stems from INA 335(a)  to corroborate an applicant’s residency, good moral character, attachment to tthe US Constitution and disposition to the good order and happiness of the United States that is prescribed under INA 316.  However, the neighborhood requirement under INA 335(a) has long been dormant.

From 1802 to 1981, citizenship applicants were required to present two witnesses who could testify to their qualifications for citizenship. In 1981, Congress eliminated the requirement for witnesses in place of neighborhood investigations, if necessary. But by 1991, the former Immigration and Naturalization Service stopped conducting neighborhood investigations.

USCIS now under the Trump administration is reviving neighborhood investigations to thwart one’s path to citizenship. It will make the decision to conduct or waive neighborhood investigations on an individualized discretionary basis after reviewing relevant evidence in the record.  This suggests that an applicant would have to include letters from neighbors and others in the N-400 application in order to stave off a neighborhood investigation. The USCIS guidance on neighborhood investigations states:

USCIS may request information from the alien seeking naturalization to inform its decision on conducting the neighborhood investigation such as testimonial letters from neighbors, employers, co-workers, and business associates who know the alien and can provide substantiated information about the alien, including any of the requirements for naturalization. If such evidence is not contained in the alien’s application for naturalization, USCIS may request that the alien submit such evidence. Submitting such evidence proactively with the Application for Naturalization can assist USCIS in determining whether a waiver of a neighborhood investigation is appropriate in a particular case without a need to issue a Request for Evidence.

As explained in our prior blog, the heightened good moral character requirement in the August 19 announcement, and now further elevated in the August 22 announcement,   is a significant departure from the previous USCIS policy concerning good moral character. Although the INA does not specifically define good moral character, USCIS had previously held naturalization applicants to the standard of an average U.S. citizen, rather than requiring them to provide evidence of exemplary character or contributions. See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947); Petition of De Leo, 75 F. Supp. 896 (W.D. Pa. 1948); and Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019).

The USCIS’s basis for finding good moral character in the absence of disqualifying criminal convictions and other adverse factors was practical and made sense as it provided an objective standard for adjudicators to process the application in a streamlined and expeditious manners. Now the requirement to evaluate good moral character based on positive contributions, including corroboration from neighbors, will cause delays and bog down the system. At this time, even under the not too immigrant friendly Trump administration, Form N-400 naturalization applications are processed and approved for the oath ceremony in less than 6 months assuming the applicant meets all the criteria.

Moreover, the whole notion of interviewing the neighbor seems outdated and unworkable. People are mostly anonymized and do not mix with neighbors. In suburban towns, most people drive to and from their homes. There is no village square or green for neighbors to mingle, dine or dance after work or during the weekends. Even in large cities such as New York where people live in apartment buildings within dense neighborhoods, one hardly knows the neighbor who lives on the same floor.  Most people will barely know each other in a large Manhattan apartment condominium, and when they ride elevators, most barely greet each other keeping their eyes fixated on their mobile phone until the end of the elevator ride  relieved that they escaped  the need to make polite conversation about the weather.

One wonders too how a USCIS investigator conducting a neighborhood visit will breakthrough to a neighbor in a New York building. They will first have to get through security to be allowed to go to the neighbor’s apartment or randomly visit several neighbors. How  will they knock on all 20 doors on the floor assuming they have passed security downstairs?   Would the neighbor who may be accosted in a nightie early in the morning  even deign to allow a stranger to visit them to talk about someone they have barely heard of. There is also a danger that the neighbor may have biases, and such a visit would also undermine the applicant’s privacy as the neighbor may not have even realized that the applicant was not a US citizen. Consider the scenario where a neighbor, a staunch MAGA supporter, has heard rumors of the applicant’s liberal views—this could be seen as a perfect opportunity to undermine them. Additionally, personal grievances could come into play, such as annoyance over noisy children or disputes with a coop board member, if the applicant is one,  over increased maintenance fees or carpeting requirements to dampen noise.

The revival of the policy of neighborhood visits appears to be a calculated cynical maneuver by officials in the Trump administration to introduce unnecessary hurdles in the path to U.S. citizenship. This policy not only complicates the naturalization process but also serves as an affront to applicants who have already demonstrated their commitment to the United States through legal channels. By subjecting them to the scrutiny of neighbors—who may harbor biases or personal grievances—this policy risks undermining the fairness and integrity of the naturalization process.

Furthermore, the policy is anachronistic, harking back to a time when community ties were stronger and neighbors were more familiar with one another. In today’s urban and suburban environments, where anonymity often prevails, such visits are not only intrusive but also largely ineffective. They place an undue burden on both applicants and their neighbors, who may be unwilling or unable to provide meaningful insights into the applicant’s character.

Ultimately, this policy shift seems less about ensuring the integrity of the naturalization process and more about creating barriers that discourage and delay applicants. It is a disservice to those who aspire to become contributing members of American society and an intrusion into the private lives of individuals.

 

 

 

 

Cyrus Mehta

Trump Resorts to Heightened Good Moral Character Standard and Anti-Americanism to Deny Citizenship and Immigration Benefits 

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump Administration has been creatively finding ways to put obstacles in the path of people applying for US citizenship and other immigration benefits. In this latest obstacle, broad and amorphous terms such as “anti-Americanism” and “good moral character” have been deployed as ways to evaluate, and perhaps deny, a claim to citizenship, permanent residence or another immigration benefit.

Heightened Good Moral Character Standard

On August 19, 2025, USCIS issued a Policy Alert modifying the standard for evaluation of good moral character in the naturalization context to encompass a “holistic assessment of an alien’s behavior, adherence to societal norms, and positive contributions that affirmatively demonstrate good moral character”.  The Policy Alert emphasizes that USCIS officers must now “account for an alien’s positive attributes and not simply the absence of misconduct”, and “place greater emphasis on an alien’s positive attributes and contributions in GMC determinations”, including: 

  • Sustained community involvement and contributions in the United States. 
  • Family caregiving, responsibility, and ties in the United States. 
  • Educational attainment. 
  • Stable and lawful employment history and achievements. 
  • Length of lawful residence in the United States. 
  • Compliance with tax obligations and financial responsibility in the United States.

This policy shift is a significant departure from the previous USCIS policy concerning good moral character. Although the INA does not specifically defines good moral character, but USCIS had previously held naturalization applicants to the standard of an average U.S. citizen, rather than requiring them to provide evidence of exemplary character or contributions. See In re Mogus, 73 F.Supp. 150 (W.D. Pa. 1947); Petition of De Leo, 75 F. Supp. 896 (W.D. Pa. 1948); and Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019). Holding naturalization applications to the standard of an average U.S. citizen is consistent with  8 C.F.R. § 316.10(a)(2), which also  also explicitly states that U.S. Citizenship and Immigration Services (USCIS) must consider “the standards of the average citizen in the community of residence” when assessing an applicant’s claim of good moral character. The USCIS evaluated good moral character based on the absence of certain criminal convictions and other serious offenses. Not so anymore after the policy shift. Applicants for citizenship will not have to be prepared to provide positive evidence of good moral character at a naturalization interview. This would make it more onerous for applicants to include numerous documents to ensure that the examiner is satisfied with good moral character. 

Indeed, USCIS seems to be elevating the standard that may not be contemplated in the INA or the regulations. For instance, USCIS spokesman Matthew J. Tragesser told Newsweek: “U.S. citizenship is the gold standard of citizenship—it should only be offered to the world’s best of the best. Today, USCIS is adding a new element to the naturalization process that ensures America’s newest citizens not only embrace America’s culture, history, and language but who also demonstrate Good Moral Character. This memo ensures that USCIS officers are accounting for an alien’s positive contributions to American society—including community involvement, achievements, and financial responsibility rather than the absence of their misconduct. USCIS will continue to restore integrity in the nation’s immigration system—especially when it comes to the prestigious privilege of citizenship.”

According to the authors, it is not appropriate for the USCIS to require that an applicant demonstrate that they are the “world’s best of the best.” There is a separate category for immigration classification termed as the “person of extraordinary ability” pursuant to INA 203(b)(1)(A). If a naturalization applicant must demonstrate that they are the “world’s best of the best” Congress should have required this in the INA and that is not the case. An applicant who is otherwise eligible for naturalization and have not been convicted of a disqualifying offense should be able to become a citizen even if they may not be the “world’s best of the best.” 

One may currently be unemployed because they cannot find a job or they have retired, but that should not be used against them for not having stable employment. Similarly, one may be law abiding but may not have sustained community involvement and contributions to the US. A naturalization applicant should be judged to the standard of an average US citizen and not to the “world’s best of the best.” 

Anti-Americanism

On the same day, USCIS promulgated a second Policy Alert emphasizing that officers should assess whether a noncitizen has “endorsed, promoted, supported, or otherwise espoused the views of a terrorist organization or group, including those who support or promote anti-American ideologies or activities, antisemitic terrorism, antisemitic terrorist organizations, and antisemitic ideologies, in any case involving an exercise of discretion”. The Policy Alert highlights several case types where USCIS exercises discretion, including national interest waivers, requests for extension of stay, changes of status, reinstatement of F or M nonimmigrant status, and certain “EB-5 investor petitions and applications in cases involving threats to the national interest, fraud, deceit, misrepresentation, and criminal misuse”. “Anti-American ideologies or activities” are not defined in the Policy Alert, which raises concerns that the term could be applied in a way that is overbroad or punishes noncitizens for speech that is political or critical of the Trump administration. 

The Policy Alert also references INA § 313(a) which provides that a noncitizen “(1) who advocates or teaches, or who is a member of or affiliated with any organization that advocates or teaches, opposition to all organized government; or (2) who is a member of or affiliated with (A) the Communist Party of the United States; (B) any other totalitarian party of the United States; (C) the Communist Political Association; (D) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (E) any section, subsidiary, branch, affiliate, or subdivision of any such association or party…” is not eligible for naturalization. 

INA§ 313(a), however, applies in the naturalization context, where good moral is assessed more critically. This standard should not be used to determine whether a noncitizen’s actions are anti-American and constitute a basis for denying an application for adjustment or reinstatement of status. This is especially true if a noncitizen’s opposition to, for example, the Trump administration’s tariffs or Israel’s war in Gaza will be interpreted as anti-American outside the naturalization context.

The Trump Administration officials are constantly reminding noncitizens that being on a visa in the US or on a green card is a privilege and not a right, and noncitizens need to follow the law to ensure that they stay out of trouble. We beg to disagree. How does the USCIS define “anti-Americanism.” Being critical  of the Trump administration or for that matter any administration should not be deemed as anti-American. Indeed, it should be considered a virtuous activity to be critical of America or its administration as it is through criticism and dissent that we can reflect on all points of view, self-correct, grow and evolve. 

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” The Supreme Court has made clear the Constitution’s “freedom of speech and of press is accorded aliens residing in this country.” Wixon, 326 U.S. at 148 (citing Bridges, 314 U.S. 252). The First Amendment does not “acknowledge[] any distinction between citizens and resident aliens.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953); see also Wixon, 326 U.S. at 161 (Murphy, J., concurring) (“[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders … including those protected by the First Amendment.” (cleaned up)).  

This has been established law for more than 70 years. See, e.g., Am.-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045, 1065 (9th Cir. 1995)
; Rafeedie v. I.N.S., 795 F. Supp. 13, 22 (D.D.C. 1992) (“It has long been settled that aliens within the United States enjoy the protection of the First Amendment ….”) (footnote and citations omitted). That is because the First Amendment operates as a restraint on government subjecting those under its power to disfavored treatment based on their opinions. See generally Pahls v. Thomas, 718 F.3d 1210, 1239 (10th Cir. 2013).

The Trump Administration cannot broadly use anti-Americanism as a cudgel to punish noncitizens for speech it disfavors. This is antithetical to the principles set forth in the First Amendment. Deploying anti-Americanism as a weapon to punish noncitizens or would be entrants to the US would also diminish America’s standing in the world and would place it on par with a pariah totalitarian state. 

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