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.  

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

Cyrus Mehta

No Dramatic Changes in Immigration Cases after Loper Bright? Some Bright Spots Emerge

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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.

Loper Bright is already reshaping how federal courts handle immigration cases under the INA, but the change is more incremental and nuanced than revolutionary so far. Courts are repeating Loper Bright’s core rule that courts must exercise independent judgment on statutory meaning and may not defer to the BIA or DHS simply because the statute is ambiguous. At the same time, courts are  invoking Loper Bright’s statutory stare decisis language to preserve pre-2024 Chevron-era immigration precedents, rather than discarding them wholesale. Courts are also using their own independent judgment by analyzing the INA provision but are reaching the same outcome. 

However, there are bright spots too. In a recent district court decision, a district court invoked Loper Bright to overturn the denial of an employment-based first preference extraordinary ability case. Courts have also not paid deference to the Board of Immigration Appeal’s reinterpretation of INA 235(2)(A) and INA 236 holding that noncitizens who entered without inspection (EWI) are not eligible for bond.

Below is a summary of  selected cases regarding how courts  are using Loper Bright in immigration-related decisions: 

Ineffective Assistance Counsel under Matter of Lozada

In an Eleventh Circuit case on ineffective assistance in removal proceedings,  Gutierrez-Mikan v. Attorney General (11th Cir. 2026),  the petitioner argued that Loper Bright undermined Matter of Lozada and circuit precedent enforcing Lozada-style requirements such as filing a bar complaint against the prior attorney against whom ineffective assistance was alleged.  The Court rejected that argument and  explained that Loper Bright stops “unthinking” Chevron deference to agency interpretations of ambiguous statutes, but Lozada did not rest on a statutory interpretation of the INA; it was an exercise of the BIA’s authority to regulate practice before the immigration courts, which the circuit had already adopted as binding precedent.

The Court reasoned that Lozada did not interpret an unambiguous provision under the INA but was part of the Board’s broad discretion in considering motions to reopen deportation orders

The Court then expressly invoked Loper Bright’s stare decisis passage in a footnote:

Loper Bright “did ‘not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful … are still subject to statutory stare decisis despite  change in interpretive methodology.’”

“Mere reliance on Chevron cannot constitute a special justification for overruling such a holding… That is not enough to justify overruling a statutory precedent.”

In ineffective-assistance litigation, Loper Bright is not being treated as a ticket to unwind established Lozada-based requirements. Courts are  instead using Loper Bright to reaffirm that Chevron is dead going forward, but Chevron-era INA precedents still bind under statutory stare decisis. In Gutierrez-Mikan the Court also noted that Loper Bright was not applicable as Lozada was not interpreting an ambiguous statutory provision.

Crime involving moral turpitude  

In Solis-Flores v. Bondi (4th Cir. 2025), the Fourth Circuit held that a Virginia conviction for receipt of stolen property (VA Code § 18.2-108) is a crime involving moral turpitude (CIMT). The court determined that knowingly possessing stolen goods with dishonest intent is inherently base and constitutes a CIMT. 

Even after the Supreme Court’s 2024 ruling in Loper Bright eliminating Chevron deference, the Fourth Circuit found that the statute, which requires knowledge that the property was stolen, aligns with their established, independent definition of a CIMT. The Court reconsidered the question without Chevron deference and again independently concluded that the prior conviction (receipt of stolen property) was a CIMT, reaching the same result as under pre-Loper Bright. It expressly stated that Loper Bright “changes the analysis but does not alter the result.”

Even where the Supreme Court has told circuits to reconsider immigration rulings in light of Loper Bright, courts often reaffirm the same outcomes using their own interpretation of the INA, rather than deferring to the BIA.

In another Fourth Circuit case, Chavez v. Bondi (4th Cir. 2025) the petitioner Chavez  contended that petit  larceny  under a Virginia penal provision isn’t  a  CIMT because it doesn’t require a   sufficiently culpable mental state and doesn’t involve reprehensible conduct.  

The Fourth Circuit explicitly reconciled  Loper Bright with  immigration case law developed by the BIA such as in Matter of Diaz-Lizarraga, 26 I. & N. Dec. 847 (BIA 2016) and gave deference to its finding that a theft offense is a crime involving moral turpitude. 

Similarly, in Lopez v. Garland  (9th Cir. 2024) the  Ninth Circuit considered whether the BIA’s holding in Matter of Diaz-Lizarraga “constitutes a CIMT if it includes an intent to deprive either permanently or under circumstances where the owner’s property rights are substantially eroded” was entitled to deference. The Court gave Skidmore deference to BIA’s interpretation in Matter of Diaz-Lizarraga, finding it “thorough and well-reasoned”, and consistent with judicial precedent. 

Jurisdiction and defective Notice to Appears

In the defective NTA litigation (omission of time/place), the Second Circuit  in Penaranda Arevalo v. Bondi (2d Cir. 2025) addressed Loper Bright but held that Loper Bright did not change its existing precedent in Banegas Gomez v. Barr (2d Cir. 2019), which had already concluded that NTA defects do not strip immigration court jurisdiction because “no ‘statutory glue bonds the Immigration Court’s jurisdiction to § 1229(a)’s requirements.”

The Court emphasized that its jurisdictional holding was its own reading of the statute, not Chevron deference, so Loper Bright did not disturb it. 

Exceptional and Extremely Unusual Hardship

In Moctezuma–Reyes v. Garland  (6th Cir. 2024), the Sixth Circuit addressed the question of how much deference should be given to BIA’s interpretation of the meaning of “exceptional and extremely unusual hardship.”  Even in light of Loper Bright, the Court developed a two part test – courts can still defer to agency interpretations if the statute uses broad language and makes clear that “Congress expressly and explicitly delegated discretion to the agency”. 

The Court affirmed the BIA’s denial of cancellation of removal under this new standard as the petitioner did not meet the stringent “exceptional and extremely unusual hardship” standard under the two part test. 

The case is widely cited as one of the first major tests of how courts handle agency interpretations following Loper Bright.  Rather than automatically deferring to the BIA’s interpretation of “hardship,” the Sixth Circuit conducted its own statutory analysis. It concluded that while courts must now use their own judgment to interpret laws, they can still find agency interpretations “informative” and “persuasive” if they align with the statute’s text.

When Does a Child Stop Being a Child for Cancellation Hardship

Several federal courts have now cited Loper Bright in cases analyzing when a child “ages out” as a qualifying relative for cancellation of removal under INA § 240A(b)(1)(D), 8 USC 1229b(b)(1)(D). The main issues are:

At what time the child must meet the INA § 101(b)(1) “under 21” definition (filing date, IJ merits hearing, or date of final decision), 

How Loper Bright affects deference to the BIA decision in  Matter of Isidro-Zamorano, which that the  held that a qualifying child who turns 21 before the adjudication of her parent’s application for cancellation of removal does not remain a qualifying relative under the hardship requirement of § 1229b(b)(1)(D), and 

Whether Loper Bright allows courts to adopt a more noncitizen-favorable age-fixing rule (e.g., at application filing), especially where agency delay caused aging out.

In the decisions discussed below, courts uniformly acknowledge that Chevron is gone, but most still adopt the final decision/ continuing-application approach, either because the text is “unambiguous” or because the BIA’s reading remains the most persuasive under a non-deferential review.

In Diaz-Arellano v. U.S. Att’y Gen (11th Cir. 2025),  the Eleventh Circuit addressed when a child must be under 21 to qualify for cancellation of removal under § 1229b(b)(1)(D). The Court noted that  Loper Bright “formally overruled Chevron deference.” It stated that, with Chevron “out of the picture,” the court must exercise its “independent judgment” when reviewing the BIA’s decision and “exercise that interpretive authority whether or not the governing statute is ambiguous.”

The panel then held that the text of § 1229b(b)(1)(D) unambiguously requires a qualifying relative at the time the immigration court finalizes its decision on the application. It explained that, if an applicant proceeds based on hardship to a child, “there must be a child—an unmarried person under the age of twenty-one—when the final decision on cancellation of removal is made.”

The Court explicitly cited Loper Bright to reject Chevron deference and to justify its own textual reading of § 1229b(b)(1)(D).

Despite that, it ended up in line with the BIA’s “continuing application” concept, effectively confirming that age is tested at the final IJ decision (or final agency decision), not at filing.

In Yupangui v. Bondi (2d Cir. 2025) the petitioner sought cancellation based on hardship to his U.S.-citizen daughter who turned 21 while his case was pending. He argued that the statute is ambiguous on “aging out” and that, under Loper Bright, no deference is owed to the BIA’s continuing-application reading. He urged the Court to fix his daughter’s age as of the date he filed the cancellation application, or the date of the individual hearing, or the date when the hardship evidence was presented. The panel recognized that Loper Bright overruled the Chevron framework and that the petitioner was asking the court to choose a different, non-deferential interpretation of § 1229b(b)(1)(D).

The government argued that even without Chevron, the BIA’s reading remains the best interpretation: cancellation is a “continuing application,” so a qualifying child’s age is “properly considered at the time an application for cancellation of removal is decided,” citing Matter of Isidro-Zamorano.

The Second Circuit ultimately agreed that a qualifying child must still be under 21 when the application is finally decided. It found that by the time the BIA ruled on the motion to reopen, the daughter had aged out, so “there will be no exceptional hardship to a qualifying relative” going forward. The Court explicitly aligned itself with the Tenth and Eleventh Circuits as the “only other courts of appeals to have considered this issue since Loper Bright,” citing Rangel-Fuentes v. Bondi (10th Cir. 2025) and Diaz-Arellano.

Yupangui squarely addressed the hardship prong—the Court held that because the daughter is no longer a qualifying child at the time of the final decision, the “exceptional and extremely unusual hardship” element cannot be satisfied, regardless of earlier hardship.

In Perez-Perez v. Bondi (6th Cir. 2025), the Sixth Circuit addressed when to measure qualifying-child status under § 1229b(b)(1)(D. 

The BIA denied cancellation solely because the petitioner’s daughter turned 21 while the case was on appeal, i.e., before the BIA decision, and thus was no longer a qualifying child. The Court recognized that, after Loper Bright, it is “no longer obligated to defer to the BIA’s interpretation of the INA,” but also notes the general principle that issues not addressed by the BIA should be remanded. The Court held that the child’s age is determined when the Immigration Court finalizes the decision. The dissenting opinion held that the child’s age is fixed at the time of the  BIA decision rather then the IJ makes the decision.

Bright Spots

Final Merits Determination in Extraordinary Ability Cases

In Anahita Mukherji v. Loren K. Miller, et al the district court in Nebraska, set aside the USCIS’s denial of an extraordinary ability petition under the person of extraordinary ability category pursuant to INA 203(b)(1)(A). The Court  found that the two tier system – where the person who meets three out of ten regulatory criteria under 8 CFR 204.5(h)(3) is also subject to a broad and amorphous “final merits” determination – not deserving of deference after Loper Bright.  This is indeed a bright spot  post Loper Bright. The USCIS had seized on the words “final merits determination” in Kazarian v. USCIS (9th Cir. 2010) to create a two system without going through notice and comment or providing good reasons for the new policy. The Court held that all questions of law will be determined by the Court, and found that the two tier final merits analysis was not valid at its inception. The Court need not have relied on Loper Bright to reach this outcome as the final merits analysis could have been discarded for a number of other reasons,  but it got the nudge from Loper Bright.

Disregarding the Yajure Hurtado Decision in Detention without Bond Cases

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.

After almost three decades, the BIA found 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’”.

The BIA knew 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), and so preemptively invoked Loper Bright 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).  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).”

Recent district court decisions have all used Loper Bright to challenge or disregard Matter of Yajure Hurtado’s “no bond for EWIs” theory. These courts rely on Loper Bright to insist on independent judicial interpretation of §§ 1225 and 1226, with no automatic deference to the BIA’s reading. They use  Loper Bright’s endorsement of longstanding government practice as an interpretive aid to favor § 236(a) detention—and thus bond hearings—for EWIs arrested inside the country. They conclude that DHS’s new no‑bond position conflicts with 30 years of practice and lacks statutory support, thereby preserving bond eligibility for these EWIs. See e.g. Barco Mercado v. Francis, Guerreno Orellana v. Moniz; Pizarro Reys v. ICE.

The Fifth Circuit very recently in Buenrostro-Mendez v. Bondi (5th Cir. 2026) agreed with Yajure Hurtado although 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. Even in the Fifth Circuit Buenrostro-Mendez also does not preclude release based on constitutional grounds.

(Last updated on 2/16/2026)

Cyrus Mehta

DOS Announces Temporary Pause on Certain Visas for Nationals of 75 Countries Based on Unfounded Concerns That They Will Seek Public Benefits

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On January 14, 2026, the Department of State (DOS) announced a temporary pause on the issuance of immigrant visas (green cards from overseas) for nationals of 75 countries, effective January 21, 2026. DOS said this pause is for the government to review how immigrant visa applicants are evaluated under the “public charge” rules. In announcing this review, the government has indicated it wants stricter standards to prevent new immigrants from receiving any public support. 

This policy applies only to immigrant visas (green card processing through a U.S. embassy or consulate) for applicants who are:

  • Nationals of one of the 75 countries identified by DOS, and
  • Applying for an immigrant visa abroad (not adjustment of status in the United States).

The affected countries include Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia and Herzegovina, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Côte d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyz Republic, Laos, Lebanon, Liberia, Libya, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, North Macedonia, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.

Applicants from these countries may attend their visa interviews, but their immigrant visas will not be issued for the time being, unless a limited exception applies. A dual national applying with a valid passport of a country that is not listed above is exempt from this pause. No immigrant visas have been revoked as part of this guidance. 

Cyrus Mehta told Law360 “it boggles the mind” that the administration would ban immigrant visas for nearly half the world based on “mere speculation” that those immigrants would come to rely on public benefits.

“Most new immigrants are not even eligible for benefits, and their admission as immigrants is conditioned by legally binding affidavits of support from their sponsors who have met the income requirements,” Mehta said.

It is also hard to imagine that immigrants from Kuwait, Kazakhstan or Uruguay will be lining up for benefits when they immigrate to the US. Those immigrating through a relative who is a US citizen or permanent resident must also be sponsored through an affidavit of support where the sponsor must be able to demonstrate an income that is 125% over the poverty line based on the size of the family being sponsored. Those immigrating through employment based on a labor certification must be promised a salary that is equal to or greater than the prevailing wage in the occupation through which they have been sponsored or through an investment in the amount of $800,000 to $1,050,000. 

The American Immigration Council has stated in a blog post that after obtaining a green card, eligible immigrants are subject to a five-year waiting period before they may apply for SNAP (food stamps) assistance, with limited exceptions.  

The real reason for the pause is because the Trump administration disfavors immigration to the United States, irrespective of whether it is legal or illegal. Trump’s senior policy advisor in the White House, Stephen Miller,  has demonstrated xenophobic and racist views towards immigrants. He has admired the  National Origins Act of 1924, which provided for an annual limit of 150,000 Europeans, a complete prohibition on Japanese immigration and which preserved the already existing racial and ethnic status quo of the United States. This law rejected George Washington’s view that the United States should ever be “an asylum to the oppressed and the needy of the earth.” 

The State Department’s pause on immigrant visas to nationals of 75 countries under the pretext that they will receive public benefits is a lie. The real reason for the pause, which follows a travel ban on nationals of 39 countries, is to drastically restrict immigration to the US. The Trump administration through Stephen Miller is achieving a ban on immigration without needing to go through legislation similar to the National Origins Act of 1924. It is doing so through executive fiat pursuant to INA 212(f), which allows the president to suspend the entry of noncitizens who he deems would be detrimental to the United States. 

The Trump administration’s blocking of nearly half the world from obtaining immigration visas will be a lost opportunity for the United States. The narrow minded thinking of Trump’s main immigration policy architect,  Stephen Miller,  prevents him from seeing how these immigrants would contribute to the US through their achievements in science, business, arts and many other fields of endeavor as well as through their desire to work hard to better themselves and their families. 

Cyrus Mehta

Police State for Noncitizens in the US?  

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, the Trump administration has taken troubling immigration-related actions that draw the United States ever closer to becoming a police state. Most notably, on January 7, 2025, an ICE agent shot and killed Renee Good, a U.S. citizen who was observing an ICE raid. In a NY Times op ed, Michelle Goldberg aptly points out that, “[a]ll of us, citizens and immigrants alike, are being ruled by people who think life is a privilege bestowed by authority, and death is a fair penalty for disobedience.” The killing of Ms. Good illustrates that the assault on our rights and liberties is no longer confined to noncitizens and has radiated outwards to encompass citizens as well as countries. 

Violence and abductions have long been a hallmark of the Trump administration. Just days before the killing of Ms. Good, on January 3, 2025, the Trump administration led an operation in Venezuela that led to the capture of the country’s leader, Nicolás Maduro, and his wife. In a NY Times op ed, M. Gessen noted that: “When he addressed the public in a news conference on Saturday, President Trump announced that U.S. forces had abducted the president of Venezuela and his wife in the name of democracy, justice, freedom for the Venezuelan people and the safety of Americans. It was a mockery: Despite what the hoodlums running our country may actually believe, abduction — whether on a street in Boston, in an apartment building in New York or Chicago, or in Maduro’s compound in Caracas — never serves the cause of justice”.

Noncitizens in the United States are living in what is becoming increasingly akin to a police state, fearing detention, deportation, or revocation of their visas if they exercise their free speech rights under the first amendment. The State Department boasts that it has revoked 100,000 visas including some 8,000 student visas and 2,500 specialized visas for individuals who had encounters with U.S. law enforcement for criminal activity, which it brands as “thugs”. It is not clear what the State Department visa means by “criminal activity” as we have heard about the revocation of visas based on minor traffic infractions or even if the charges got dismissed.  The Trump administration has weaponized INA 237(a)(4)(c) to initiate detention and removal, and the fear of it, against anyone whose speech is disfavored including anti Americanism, however that is defined, and activities to moderate hate speech on the internet, even if undertaken as part of one’s job. In September 2025, in Vasquez Perdomo v. Noem, the Supreme Court troublingly held that apparent ethnicity is a “relevant factor” for purposes of immigration stops, essentially sanctioning racial profiling by ICE agents. In Minneapolis, ICE is detaining noncitizens who may already be authorized to be in the US based on a status review of their application. Immigration law only permits detention of people who an officer has “reason to believe” are present in violation of law. No law permits detention for a fishing expedition.

In the current climate, it is increasingly important for noncitizens to know what their rights are if approached by ICE or questioned about their immigration status. Noncitizens who are in a lawful immigration status are advised to carry proof of their status, like a lawful permanent resident card or I-94, with them at all times, and to present it if approached by ICE. Undocumented individuals should be aware that they have the right to remain silent if approached by ICE in public or during a traffic stop, and can ask to contact an attorney. Noncitizens are advised not to open the door if ICE comes to their home, and should be familiar with the difference between a warrant signed by a judge and an “ICE warrant”, which is not signed by a judge and does not give ICE the right to enter a home without consent. 

Trump appears to have little regard for whether his actions amount to violations of international law, stating that he is constrained only by his “own morality”. 

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

 

Cyrus Mehta

Evisceration of the H-1B Visa Program Through Executive Action

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By Cyrus D. Mehta

The H-1B visa program has been eviscerated through the promulgation of a final rule that would prioritize the allocation of H-1B visas in the lottery to those who are higher skilled and higher paid and through executive action. Relatedly, President Trump issued an executive order that would impose a $100,000 fee on H-1B petitions filed on behalf of beneficiaries who are outside the US. The $100,000 fee will not apply to H-1B petitions filed on behalf of beneficiaries who are already in the US and will also be requesting a change of status to H-1B from another nonimmigrant  status such as F-1 or J-1.  This executive order was recently upheld by a federal district court.  These combined actions have radically changed the H-1B visa program through the stroke of a pen and without any legislation from Congress. 

DHS Finalizes H-1B ‘Weighted Selection’ Rule 

On December 23, 2025, the Department of Homeland Security (DHS) announced a final rule implementing a weighted selection process that generally favors the allocation of H-1B visas to those who are, in the administration’s view, “higher-skilled and higher-paid.” The rule governs the process by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for unique beneficiaries for filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). DHS received 17,000 comments and made no changes from the proposed rule. Court challenges are expected to follow.

Under the new process, 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. Each unique beneficiary will 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, DHS said. The new final rule is expected to make it significantly less likely that companies will hire international students when they graduate from U.S. universities.

The final rule,  published on December 29, 2025, is effective February 27, 2026, and will be in place for the Fiscal Year 2027 H-1B cap registration season.

District Court Rules Against Plaintiffs in $100,000 H-1B Fee Lawsuit, Plaintiffs Appeal

In Chamber of Commerce v. Department of Homeland Security, a district court has ruled in favor of the Department of Homeland Security (DHS), finding that imposition of a $100,000 fee for new H-1B applications and related actions were legal under a Presidential Proclamation pursuant to INA 212(f). 

“Defendants have the stronger position,” U.S. District Judge Beryl Howell said. “The lawfulness of the Proclamation and its implementation rests on a straightforward reading of congressional statutes giving the President broad authority to regulate entry into the United States for immigrants and nonimmigrants alike.”

Judge Howell noted, “To be clear, this decision in favor of defendants is not to dismiss or discount the past and ongoing contributions of H-1B workers to the American economy that plaintiffs highlight. Important as those contributions may be, the effects of the H-1B program on the American economy or national security, whether positive or negative, are simply not at issue in this case. The Supreme Court has long maintained that matters of economic and foreign policy are generally entrusted to the political branches of government and ‘rarely proper subjects for judicial intervention.’ ”

The plaintiff groups, the US Chamber of Commerce and the Association of American Universities,  have sought expedited review in the DC Circuit Court of Appeals. The groups said in their emergency consent motion to expedite appeal that neither section of the Immigration and Nationality Act that Trump cited in his proclamation that imposed the hefty fee for the H-1B nonimmigrant visa program “contains the clear statement necessary to delegate to the president Congress’s power to impose taxes on U.S. employers.”

“What is more, the proclamation takes a wrecking ball to Congress’s carefully crafted design of the program — in overriding the program in this manner, it exceeds the bounds of the president’s lawful authority,” the groups said.

Furthermore, multiple states joined an amicus brief supporting plaintiffs in Global Nurse Force v. Trump, filed in the Northern District of California. There is hope that the DC Circuit Court of Appeals and another district court will rule differently from Judge Howell’s decision. The brief in Global Nurse Force v. Trump asks the judge to temporarily block a new Trump administration policy to charge new H-1B immigrant visa applicants a $100,000 fee. Among other things, the states and other plaintiffs argue that the fee would exclude from hiring qualified H-1B workers nonprofits and schools that are unable to afford it.

The amicus brief includes the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

Impact of the Combination of the Wage Prioritization Rule and the $100,000 Fee

For further insights, watch my interview on CNBC/TV18 with esteemed colleague Steven Brown regarding the H-1B new rule that will give priority to those being offered level 4 wages and the $100,000 H-1B fee that was upheld by a federal district court.

I have opined that with the $100,000 there will be fewer H-1B petitions filed on behalf of beneficiaries outside the US and most of the beneficiaries competing for the limited 85,000 H-1Bs per year will be mainly students in the US in F-1 status. They may have a better chance of selection even if they are not paid the highest-level wage. 

While the $100,000 may help students in F-1 status in the US, it will not benefit employers who need to also hire workers based overseas especially nonprofits, universities and startups. Even those who were previously counted under a prior H-1B lottery but are based overseas, a new petition filed on their behalf will have to be accompanied by the $100,000 fee. 

The two actions from the Executive Branch will not just kill the H-1B visa program but will also stymie innovation and prevent the entry of talented foreign nationals who will ultimately contribute to the US. It is hoped that courts will find both the actions unlawful and contrary to the INA.