Cyrus Mehta

Resolving Conflicts of Interest When an H-1B Worker is Terminated

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The recent trend of issuing  a Notice to Appear (NTA) to terminated H-1B workers – even within their 60-day grace period – has created new ethical challenges for immigration attorneys who often represent both employer and employee.[1] The NTA is the document that begins removal proceedings. The removal proceeding against the H-1B worker is initiated when the employer notifies USCIS about the termination even though the H-1B worker is within their 60-day grace period.[2]

An employer must pay the H-1B worker until there is a termination of employment.[3] The Department of Labor has insisted that the employer only effectuates a bona fide termination if it notifies USCIS under 8 CFR §214.2(h)(11), otherwise the DOL will continue to hold the employer liable for back wages even if the employee has been terminated.

Immigration attorneys generally represent both employer and employee, and they face a potential conflict especially since the employee will likely receive an NTA if there is a termination and the employer notifies the USCIS. Yet, the employer must be advised to notify the USCIS about the H-1B worker’s termination to avoid back wage liability.  In  Amtel Group of Florida v. Yongmahapakorn, [4] the Administrative Review Board (ARB) held that an employer must meet three requirements to effectuate a bona termination of the relationship under 20 CFR §655.731(c)(7)(ii):  (1) the employer must expressly terminate the employment relationship with the H-1B worker,  (2) the employer must notify USCIS of the termination so that the USCIS can revoke its prior approval of the employer’s H-1B petition under 8 CFR 214.2(h)(11), and (3) the employer must provide the H-1B worker with payment of return transportation home under INA 214(c)(5)(A) and 8 CFR 214.2(h)(4)(iii)(E).[5]

The attorney can navigate this conflict under the American Bar Association’s Model Rule 1.7 (although the attorney needs to refer to the analog of the Model Rule under their state bar rules of professional conduct). Model Rule 1.7 permits the attorney to represent clients notwithstanding a conflict so long as the attorney can competently and diligently represent both clients, and each affected client has given informed consent in writing. Comment 22 to Rule 1.7 authorizes advance waivers to conflicts of interest under certain circumstances.[6] If the conflict is foreseeable,  such as termination of employment in the future, there is a greater likelihood that the client will have the requisite understanding and give informed consent.

The attorney should inform both employer and employee at the outset of the presentation regarding what will happen if there is termination.[7] The clients should be informed about the employer’s obligation to notify USCIS at the point of termination. A change or extension of status should be filed prior to the last day of termination if possible. If the H-1B worker is placed in removal, the proceeding may be terminated by an Immigration Judge if the H-1B worker’s change or extension of status is approved.[8] If the employer does not consent to the representation of the employee post termination, the H1-B worker should be referred to independent counsel for advice and representation.

Some attorneys undertake sole representation of the employer in the H-1B context to avoid these sorts of conflicts, but this should be undertaken carefully as the sole representation model could break down if the attorney was advising the employee and the employee assumed that the employer’s attorney was also representing the employee and relied on advice. The sole representation model could also potentially break down after the employer starts the green card process and the attorney becomes more involved in advising the employee especially regarding adjustment of status, which is filed by the employee.

Arguably advising an employer to notify the USCIS about the termination of the H-1B worker may not pose a conflict as the employer is obligated to follow the rule to avoid back wage liability. This may have been the case before the current administration started issuing an NTA and cutting short the 60-day grace period. The withdrawal of the H-1B can now result in devastating consequences for the H-1B worker who may be placed in removal proceedings. When there is a conflict, the attorney is required to withdraw from the representation of both affected clients. However, in the immigration context this will neither serve the interests of the employer and terminated H-1B worker especially when the attorney represents the employer with multiple H-1B workers. Instead, it would be more prudent for the attorney to represent both by setting forth the parameters of the representation between the employer and employee client at the very outset of the representation, which will enable the attorney to handle the representation of both clients more readily if there is termination down the road.

There may be situations where the attorney started representing the employer and not the H-1B worker who may have been overseas at the time of initiating the H1-B process.  However, it would still be incumbent upon the attorney to notify the employee about the potential consequences of the employer notifying the USCIS about the termination. The employee should also be advised about the consequences of the withdrawal, which could potentially result in the initiating of removal proceedings. If the attorney will be unable to represent the employee in removal proceedings, the employee should be advised to seek independent counsel in this regard.

In a situation where the attorney is more in contact with an employer and is advising that employer on a variety of immigration matters for its employees, the employee could be considered as  as an accommodation or secondary client that may enable the attorney to continue to represent the employer and not the employee upon termination.[9] In Rite Aid Corporation Securities Litigation, [10] which was not an immigration case but a good example of how this would play out in immigration practice, the court held that the informed consent standard may be dropped to its lowest point when there is an “accommodation client.” There the same law firm represented Rite Aid and the CEO, and in the engagement letter, the law firm indicated that in the event of a conflict, the firm would continue to represent Rite Aid while CEO would retain separate counsel. The conflict waiver was upheld because the CEO was an accommodation client as he agreed to engage counsel through the corporation. It is worth pointing out that in the immigration context, the attorney continues to represent the employer client but withdraws from representing the terminated H-1B worker and does not take any adverse action against the worker such as claiming damages.

By setting clear expectations, obtaining informed consent, and navigating conflicts with diligence, attorneys can effectively manage dual representation in H-1B cases while safeguarding the interests of both the employer and the employee. In the event that the attorney has to opt out from representing the employee, that may be permissible if the employee is expeditiously referred to independent counsel to represent them in the removal case. As USCIS practices change under the Trump administration, immigration lawyers must continually reassess their engagement strategies and update conflict waivers to reflect new risks.

 

[1] See https://www.nafsa.org/regulatory-information/reports-ntas-issued-h-1bs-after-employer-withdraws-petition

[2] See 8 CFR 214.1(l)(2). One possible explanation for issuing an NTA during the grace period is that the regulation also allows for the 60-day grace period to be shortened or eliminated

[3] See 20 C.F.R. § 655.731(c)(7)(i).

[4]  See ARB Case No. 04-087, ALJ Case No. 2004-LCA-006 (Sept. 29, 2006),

[5] Cf.   Jain v. Metromile, Inc., ALJ Case No. 2021-LCA-00018 (July 19, 2022) (the back wages obligation stops when USCIS approves a change of employer petition on behalf of the H-1B worker);  Vinayagam v. Cronous Solutions, Inc., ARB Case No. 15-045, ALJ Case No. 2013-LCA-029 (ARB Feb. 14, 2017) (employer’s failure to pay return transportation costs for a terminated H-1B employee was not fatal when the worker voluntarily decided not to return to her home country but instead remained in the U.S. and sought H-1B status through a new employer).

[6] See ABA Formal Op. 05-434 on advance waivers.

[7] Even if an attorney cannot foresee conflicts in join representation, NYC Bar Op. 2017-7 advises that the lawyer must nevertheless explain the implications of the joint representation to the extent “reasonably necessary to permit the client[s] to make informed decisions regarding the representation.”

[8] 8 CFR 1003.18(d)(1)(D)(4).

[9] The notion of the primary and secondary client exists in case law. See Allegaert v. Perot, 565 F.2d 246 (2d Cir.1977). See also Cyrus D. Mehta, “Finding the “Golden Mean” in Dual Representation,” Immigration & Nationality Law Handbook, 2005-06 Ed. at 29, copyright © 2005 American Immigration Lawyers Association (AILA); reprinted in AILA’s Selected Fundamentals Of Immigration Law 2005-06 Ed. A version of the article is also available on AILA InfoNet at AILA Doc. No. 07081769 (posted August 17, 2007).  See also “Finding the ‘Golden Mean’ in Dual Representation – Updated”, Immigration Briefings, August 2006, © 2006 West, a Thomson business.

[10] 139 F. Supp.2d 649 (E.D. Pa. 2001). See also SuperCooler Tech v. The Coca Cola Co., 6:23-cv-187-CEM-RMV (M.D. Fla. Jul. 17, 2023) (advance waiver upheld when Coca Cola consented to law firm .representing another client SuperCooler in a lawsuit accusing Coca-Cola of misappropriation of trade secrets and intellectual property and sought over $100 million in damage).

 

 

Cyrus Mehta & Kaitlyn Box*

CSPA Disharmony is More Beautiful Than Monotony Notwithstanding a Discrepancy between USCIS and DOS Policy in Protecting the Age of the Child

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By Cyrus D. Mehta and Kaitlyn Box*

In early 2023, USCIS 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. This shift in policy allowed the age of many more children to be protected under the CSPA.  USCIS acknowledged that:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

Cyrus Mehta had long advocated for the use of the DFF for CSPA calculation purposes, and discussed the implications of this policy change at length in a prior blog entitled “CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Filing While DOS Allows Child’s Age to Be Protected under the Final Action Date”. 

Now, USCIS without advance notice has again 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.    

This policy update ensures both USCIS and the Department of State use the Final Action Dates chart in the Visa Bulletin to determine when a visa becomes available for the purposes of CSPA age calculation. This establishes a consistent CSPA age calculation for aliens who apply for adjustment of status and immigrant visas. The Feb. 14, 2023, policy resulted in inconsistent treatment of aliens who applied for adjustment of status in the United States versus aliens outside the United States who applied for an immigrant visa with the Department of State.”

This change will become effective for applications filed on or after August 15, 2025. 

USCIS’ February 14, 2023 policy that used the DFF to protect the age of the child was salutary, and should have been left in place. This policy protected many more children from aging out, and had a clear legal basis since the DFF allowed one to apply for adjustment of status based on visa availability under INA 245(a)(3) while the child’s age was also frozen based on visa availability under INA 203(h)(1)(A).

The August 2025 policy reversal is ostensibly aimed at ensuring that both the USCIS and the Department of State (DOS) use the FAD chart to determine when a visa becomes available for purposes of the CSPA calculation. A discrepancy indeed existed between the USCIS and State Department policy, as DOS did not issue guidance that corresponded to USCIS’ February 14, 2023 guidance, nor did it update Foreign Affairs Manual (FAM) accordingly. However, both the USCIS and State Department could have instead used the DFF rather than the FAD to determine visa availability.

Notwithstanding the discrepancy between USCIS and State Department policy, using the DFF for CSPA calculation purposes benefited children in the U.S. in a nonimmigrant status whose age got protected under the DFF, and who sought to acquire permanent residence within one year of visa availability, even though their parents obtained an immigrant visa, and permanent residence, under the Final Action Dates some years later.  It also benefitted the entire family if they were here in the US and all filed I-485 adjustment applications together as it kept them united and they were able to derive benefits from the I-485 such as work authorization and travel permission. 

USCIS’ policy reversal will have significant implications for children whose age will no longer get protected under the CSPA. Children of parents who were born in backlogged countries such as India and China are likely to suffer the most severe hardship, as it may be many years before the FAD becomes available, resulting in the children aging out before their age can be protected under the CSPA. Children who may age out before their age can get protected under the CSPA may be reluctant to even file an adjustment of status application in the current climate, as denials if the children age out could result in them being placed into removal proceedings.  

It bears considering whether the cruel policy reversal can potentially be challenged under the Administrative Procedure Act, arguing that the reversal was arbitrary and capricious as the USCIS did not provide a reasoned explanation for its action under DHS v. Regents of the University of California. In Regents, which was discussed in detail in a prior blog, the Court struck down the rescission of the DACA program on the ground that DHS failed to provide a reasoned explanation for taking this action. The Court also focused on the agency’s failure to factor in the reliance interests of DACA recipients, many of whom had enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program.

The anomaly between the USCIS and DOS policy existed when the new policy was announced on February 23, 2023, and so to necessitate a  reconciliation  is a poor justification for reversing the policy. Nothing has changed since 2023. Moreover, even if USICS has provided an August 15, 2025 cutoff date, the reversal would still impact reliance interests as enunciated by the Supreme Court majority in Regents. The DFF will still allow applicants and their children to file I-485 applications after August 15, but once their children age out, their I-485 will get denied. Children are likely to be deterred from filing I-485 applications if there is a risk that they will age out before the FAD becomes current. Despite the weighty impact on reliance interests,  USCIS has failed to provide a reasoned explanation for the reversal.

As the USCIS will continue to use the DFF to protect the age of the child until August 15, 2025, applicants who are eligible to file I-485 adjustment of status applications should do so immediately. After August 15, 2025, while a child may be able to file an I-485 under the DFF it will not protect the age of the child. If the FAD does not become current before the child becomes 21, or if the child turns 21 and cannot utilize the age protection formula under the CSPA, the child’s I-485 application will get denied. This could potentially jeopardize the child’s chances of changing to another nonimmigrant status such as F-1. Although  the Board of Immigration Appeals (BIA)  in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975) recognized an inherent dual intent in all nonimmigrant visas, it may be not be recognized by this Administration under the circumstances of an I-485 that was filed and denied. If children  proceed abroad for an F-1 visa they too risk refusal of the visa under INA 214(b) as they may not be able to rebut the presumption that they are intending immigrants. 

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

 

Cyrus Mehta

USCIS’s Dystopian Implementation Plan to Allow Inheritance of Temporary Statuses from the Parents for the US Born Child Instead of Automatic Citizenship

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The USCIS has issued an Implementation Plan to end birthright citizenship under Executive Order 14160, Protecting the Meaning and Value of American Citizenship. See 90 Fed. Reg. 8449 (2025) (E.O.). 

The E.O. provides that the following categories of individuals will no longer be considered to be born “subject to the jurisdiction” of the United States and therefore will no longer be U.S. citizens at birth:

 (1) children whose “mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth”; and 

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

The Implementation Plan considers the following categories as “lawful but temporary”, which the newborn child will inherit from one of the parents if they falls under one of these categories:

  • Aliens granted withholding of removal under INA 241(b)(3) or withholding of deportation under former INA 243; 
  • Aliens granted withholding of removal or deferral of removal under the Convention Against Torture; 
  • Aliens granted voluntary departure, satisfactory departure, or a stay of removal; 
  • IMMACT 90 Family Unity beneficiaries; 
  • LIFE Act Family Unity beneficiaries; 
  • Nonimmigrants (unless listed separately below), including dual intent categories and T and U nonimmigrants; 
  • Citizens of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau residing in the United States pursuant to Compacts of Free Association; 
  • Parolees; 
  • TPS beneficiaries to include applicants establishing prima facie eligibility; 
  • Visa Waiver Program entrants; 
  • Deferred action recipients; and 
  • Deferred Enforcement Departure recipients. 

By contrast, aliens whose presence is lawful and not temporary include, and such a child will automatically be a citizen at birth: 

  • American Indians born in Canada who entered the U.S. under INA 289; 
  • Asylees; 
  • Conditional permanent residents; 
  • Lawful permanent residents; 
  • Refugees; and 
  • Individuals who are nationals but not also citizens of the United States.

The USCIS has hatched  a sinister plan to implement Trump’s currently unconstitutional  birthright citizenship executive order where the newborn child will not automatically be a US citizen but would inherit the lawful but temporary status of the mother in case the EO, which is currently blocked under Barbara v. Trump, is  permitted to go into effect. If the mother is unlawfully present, and does not fall under any of the lawful but temporary categories,  the child will also be considered unlawfully present as soon as it is born. The immigration authorities can technically remove the child who is unlawfully present. 

And what if a child is born to a mother whose nonimmigrant visa status such as H-4 is pending, it would ridiculously result in the child being  born into the world with a similarly pending status? And more ridiculous is if a child is born to a parent in F-1 status, which is considered lawfully present because of “Duration of Status” even if the parent has violated that status through unauthorized employment. The newborn child will be considered lawfully present but in violation of F-1 status and be technically subject to removal. Similarly a child born to a parent who has a pending asylum application will be considered unlawfully present, according to the Implementation Memo, and will also be subject to removal unless the parent is granted asylum. 

According to a Times of India article on the Implementation Plan, where Cyrus Mehta is extensively  quoted, if the child does not automatically become a citizen they will not be able to sponsor the parents when they turn 21 given the decades long backlogs in the employment based green card categories for persons born in India. If this child inherits the H-4 status from the parent who is in H-1B or H-4 status, the child will have to find its  own way in the legal immigration system when they turn 21. Will this child also be charged to the parent’s country of birth, which is India, and will need to wait for decades before they become lawful permanent residents? The child’s age may not be protected under the Child Status Protection Act if the parent’s I-140 petition under the India EB-1 or EB-2 does not become current before the child turns 21. 

The Implementation Plan will adopt what USCIS  does with children of parents present in the United States on diplomatic visas who are not subject to the jurisdiction of the United States pursuant to 8 U.S.C. 1401(a) but are entitled to acquire lawful immigration status by registering. See 8 CFR 101.3. USCIS intends to broaden this practice to permit the children of noncitizens that possess lawful but temporary status to register to acquire any lawful status that at least one parent possesses. But the policy under 8 CFR 101.3 is more sensible as the child of the diplomat who is not subject to the jurisdiction of the US is entitled to lawful permanent residence. Under the Implementation Plan the child will inherit the temporary and unstable status of the parent such as withholding of removal. If the parent is not lawfully present, the child will also be born unlawfully present and will be subject to removal.   

However dystopian this may be for a hapless newborn,  parents need not panic because so far not a single federal court has sided with Trump’s EO and each court has found it unconstitutional. The USCIS will also have to change the regulations to allow inheritance of temporary statuses by registration, which will be long drawn and subject to challenge in the courts. The USCIS has also proposed to defer enforcement against such children until the regulations are promulgated.  It is hoped that the majority of justices in the Supreme Court, if it gets there, will also find the EO blatantly unconstitutional and affirm birthright citizenship under the Fourteenth Amendment.

 

Cyrus Mehta & Kaitlyn Box*

Notwithstanding Trump’s Threats, Can the Government Really Take Away a Person’s Citizenship?

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In recent weeks, the Trump administration’s immigration enforcement efforts have increasingly turned towards U.S. citizens. Indeed President Trump has been insinuating that his administration would look into taking away the citizenship of a number of high profile people.

A June 11, 2025 memorandum entitled Civil Division Enforcement Priorities and authored by Assistant Attorney General Brett A. Shumate states that:

The Department of Justice may institute civil proceedings to revoke a person’s United States citizenship if an individual either “illegally procured” naturalization or procured naturalization by “concealment of a material fact or by willful misrepresentation.” 8 U.S.C. § 1451(a). The benefits of civil denaturalization include the government’s ability to revoke the citizenship of individuals who engaged in the commission of war crimes, extrajudicial killings, or other serious human rights abuses; to remove naturalized criminals, gang members, or, indeed, any individuals convicted of crimes who pose an ongoing threat to the United States; and to prevent convicted terrorists from returning to U.S. soil or traveling internationally on a U.S. passport. At a fundamental level, it also supports the overall integrity of the naturalization program by ensuring that those who unlawfully procured citizenship, including those who obtained it through fraud or concealment of material information, do not maintain the benefits of the unlawful procurement.

The Civil Division shall prioritize and maximally pursue denaturalization proceedings in all cases permitted by law and supported by the evidence. To promote the pursuit of all viable denaturalization cases available under 8 U.S.C. § 1451 and maintain the integrity of the naturalization system while simultaneously ensuring an appropriate allocation of resources, the Civil Division has established the following categories of priorities for denaturalization cases:

      1. Cases against individuals who pose a potential danger to national security, including those with a nexus to terrorism, espionage, or the unlawful export from the United States of sensitive goods, technology, or information raising national security concerns;
      2. Cases against individuals who engaged in torture, war crimes, or other human rights violations;
      3. Cases against individuals who further or furthered the unlawful enterprise of criminal gangs, transnational criminal organizations, and drug cartels;
      4. Cases against individuals who committed felonies that were not disclosed during the naturalization process;
      5. Cases against individuals who committed human trafficking, sex offenses, or violent crimes;
      6. Cases against individuals who engaged in various forms of financial fraud against the United States (including Paycheck Protection Program (“PPP”) loan fraud and Medicaid/Medicare fraud);
      7. Cases against individuals who engaged in fraud against private individuals, funds, or corporations;
      8. Cases against individuals who acquired naturalization through government corruption, fraud, or material misrepresentations, not otherwise addressed by another priority category;
      9. Cases referred by a United States Attorney’s Office or in connection with pending criminal charges, if those charges do not fit within one of the other priorities; and
      10. Any other cases referred to the Civil Division that the Division determines to be sufficiently important to pursue.

If a U.S. citizen is convicted of an offense relating to some of the factors in the Shumate memo, such as perpetuating fraud against an individual or in the course of obtaining a PPP loan, there should not be a basis for finding that he “illegally procured” naturalization or procured naturalization by “concealment of a material fact or by willful misrepresentation” under 8 U.S.C. § 1451(a) if the illegal acts occurred exclusively after he naturalized. The DOJ recently succeeded in denaturalizing Elliot Duke, who was arrested and charged with distribution of child pornography after he naturalized. However, Duke confessed to downloading and distributing child pornography even prior to his naturalization, and had answered “no” to the question on Form N-400 that asks whether one has “ever committed a crime or offense for which you were not arrested”. In U.S. v. Olivar, which is the subject of further analysis in a prior blog, the Ninth Circuit upheld the revocation of an individual’s citizenship who had agreed to commit crimes in the future, although he had not committed any overt act prior to naturalization. Unlike Duke, Olivar’s citizenship was revoked not because of his responses on Form N-400, but on the basis that he lacked good moral character during the five-year period preceding his naturalization. Although Oliver had not actually engaged in any criminal activity before becoming a U.S. citizen, his agreement to commit crimes occurred prior to naturalization.

Trump has already threatened Zohran Mamdani, the Democratic nominee for mayor of New York City and a naturalized U.S. citizen, stating: “A lot of people are saying he’s here illegally. We’re going to look at everything”. In response to assertions that Mr. Mamdani would not impede ICE’s efforts to make arrests in New York City, Trump replied, “Well then we’ll have to arrest him.” In a letter addressed to Attorney General Pam Bondi, Republican Congressman Ogles requested that the Justice Department open an investigation into whether Mr. Mamdani should be subject to “denaturalization proceedings” over rap lyrics Mr. Ogles claimed expressed solidarity with individuals convicted of terrorism-related offenses, before he was a U.S. citizen.

Trump has also threatened to rescind the U.S. citizenship of former talk show host Rosie O’Donnell, stating on Truth Social, “Because of the fact that Rosie O’Donnell is not in the best interests of our Great Country, I am giving serious consideration to taking away her Citizenship”. INA 349 provides that acts such as obtaining naturalization in a foreign state, entering the armed forces of a foreign state as an officer or if such armed forces are in hostilities against the United States, obtaining employment in the government of a foreign state after acquiring the nationality of that foreign state, or making a formal renunciation of nationality before a consular officer. A U.S. citizen can also lose citizenship if s/he is convicted of treason or related subversive acts. The provision requires that an individual voluntary perform these expatriating acts “with the intention of relinquishing United States nationality.” In Afroyim v. Rusk, 387 U.S. 253 (1967), the Supreme Court held that a U.S. citizen has “…[A] constitutional right to remain in a free country unless he voluntarily relinquishes that citizenship.” In a subsequent decision, Vance v. Terrazas, 444 U.S. 253 (1980), the Court held that “in establishing loss of citizenship, the Government must prove an intent to surrender United States citizenship, not just the voluntary commission of an expatriating act such as swearing allegiance to a foreign nation. Congress does not have any general power to take away an American citizen’s citizenship without his ‘assent,’ which means an intent to relinquish citizenship, whether the intent is expressed in words or is found as a fair inference from his conduct.” These cases are discussed at length in a prior blog.

While the threats against Mamdani and O’Donnell have no basis, the Trump administration under the Shumate Memorandum may try to denaturalize citizens based on concealment of a material fact or by willful misrepresentation before they naturalized. However, it is a high burden on the government to commence denaturalization proceedings against a citizen in federal court. “The immigration courts have no jurisdiction over U.S. citizens, so the only way for the administration to attempt to strip citizenship is to go through the actual federal judiciary, which is far more independent and much less likely to look favorably upon efforts to target the relatively ironclad protections of citizenship,” according to an article in Slate where Cyrus Mehta is quoted.  In civil cases the government must prove its case by clear, convincing, and unequivocal evidence, leaving no reasonable doubt . For a criminal conviction, the federal government must show “proof beyond a reasonable doubt” that the individual violated 18 U.S.C. § 1425 because the individual knowingly obtained or attempted to obtain naturalization through fraud for him or herself or for another individual. Denaturalization as a result of a criminal conviction is subject to a ten-year statute of limitation.

In 2017, the Supreme Court held in a unanimous decision in Maslenjak v. United States that only an illegal act that played a role in an individual’s acquisition of U.S. citizenship could lead to criminal denaturalization, narrowing the scope under which an individual may be denaturalized under 18 U.S.C. § 1425. In Maslenjak, the government under the Obama and Trump administrations sued to revoke Diana Maslenjak’s U.S. citizenship for making false statements regarding her husband’s membership in a Bosnian Serb militia in the 1990s. The Supreme Court ruled that if an applicant made a false statement during the citizenship process, the statement must have played some role in the individual obtaining citizenship in order to warrant the revocation of citizenship. The court stated that “small omissions and minor lies” that did not influence the award of citizenship do not necessitate denaturalization.

As discussed in a prior blog,  this ruling is significant. It prohibits a government official from revoking a naturalized American’s citizenship based on an insignificant omission or misrepresentation. If the applicant did not indicate that she was a member of her school club to the question on the naturalization application asking about membership in any club at anytime and anywhere in the world, a vindictive prosecutor can no longer use this as a basis to indict her under 18 USC 1425(a), seek a conviction and then revoke her citizenship.

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

Cyrus Mehta & Kaitlyn Box*

One Big Ugly Bill on Immigration

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On July 4, 2025, Congress passed the “One Big Beautiful Bill Act”. Among its many other provisions, the megabill imposes a number of immigration-related changes. Pursuant to the Act, asylum applications, which historically have been able to be filed at no cost, will now be subject to a $100 filing fee. An additional $100 annual fee will apply for each calendar year that an applicant’s asylum application remains pending. Applications for an employment authorization document (EAD) based on a pending asylum application will now have a filing fee of $550. 

There are other fee increases. For instance, the filing fee for appealing a decision of an Immigration Judge to the Board of Immigration Appeals has increased from $110 to $900. A noncitizen who is removed in absentia will have to pay an apprehension fee of $5000. Likewise, an inadmissible noncitizen who is apprehended between ports of entry will need to pay $5000.  How will DHS collect the fee after they deport him? Or will they hold off deporting her until she pays the $5000?   The National Immigration Project has created a chart as a reference tool for understanding the fee increases and the new fees brought by this law: Comparison Chart of the Immigration-Related Fee Changes Brought by H.R.1 the So-Called One Big Beautiful Bill Act.

The Act also states that certain categories of noncitizens, including refugees and asylees, VAWA recipients, and beneficiaries of most humanitarian relief programs are no longer eligible for public benefits programs such as Medicaid, Medicare, the Children’s Health Insurance Program, and the Supplemental Nutrition Assistance Program.

Additionally, the Act imposes a tax equal to 1 percent of the total amount on remittances, or international money transfers, to be paid by the sender, including U.S. citizen senders. Individuals who have U.S. Social Security numbers are eligible to apply for credits to offset the impact of the tax. 

Finally, the Act allocates substantial government funds to immigration enforcement and detention measures. It earmarks around $46.5 billion for completion of the border wall, and provides additional funds for construction of CBP facilities. Approximately $45 billion will be dedicated to immigration detention centers, with around $30 billion being set aside for maintenance of existing ICE facilities, hiring personnel, and funding the cost of transporting detainees. Another $13.5 billion is earmarked for reimbursing states for immigration enforcement-related costs. The Act also provides around $3 billion to the Department of Justice for purposes including the hiring of new Immigration Judges. 

The immigration provisions in the Act do not make any attempt to reform the defective immigration system in the US that lacks adequate pathways for people to come to the US and remain in the US legally. 

Ben Johnson, Executive Director of AILA, poignantly describes how Congress has let all of us down:  

“This bill is a profound disappointment. Instead of advancing practical, humane immigration reforms, Congress chose to funnel unprecedented resources into the Administration’s ruthless deportation machine, at the very moment the President is openly threatening to detain and deport U.S. citizens—a betrayal of American values so extreme it threatens the citizenship rights of us all.

All this, at the expense of programs Americans rely upon in their daily lives, especially healthcare. This betrays our most basic constitutional principles and is a chilling escalation of executive overreach.

This legislation fails our nation on every front. It abandons critical efforts to address backlogs in the legal immigration system while creating needless barriers to a functional immigration system. Worse, it makes our communities less safe and less secure by doubling down on fear-based policies that are already proven to be costly and ineffective. Those caught in the crosshairs will be not only newly-arrived immigrants and long-term residents who are part of the fabric of American communities, but also U.S. citizens both naturalized and U.S. born. It ignores the vital role immigrants play in our economy and community life, while pouring billions into a system that inflicts harm rather than offering hope, stability, and due process.

America deserves an immigration system that reflects our values and our interests, not one that undermines the rule of law and weaponizes enforcement against our own neighbors. This is unacceptable. The American people must hold those in Congress who passed this bill to account.”

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

 

Cyrus Mehta

Supreme Court Decision Limits Nationwide Injunctions Giving More Power to Trump to Violate the Constitution

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On June 27, 2025, in a case implicating President Trump’s Executive Order (EO) on birthright citizenship, the U.S. Supreme Court issued a decision limiting federal courts’ ability to issue nationwide injunctions blocking EOs and broad national policies. It explained that in such cases, courts should normally only block federal policies for the individuals or organizations that bring a lawsuit, unless a statute or class action process allows broader relief. This ruling makes it less likely that a single lawsuit will be able to stop a federal policy from taking effect across the entire country.

The Supreme Court’s order incorporates a change to the effective date of the EO, which was agreed to by the government. The Court stated that the EO does not apply to children born since January 20, 2025, and for 30 additional days after the order. Under the decision, all children born in the United States before July 28, 2025, regardless of their parents’ immigration status, will be recognized as U.S. citizens by the executive branch of the federal government. 

Justice Barrett, who wrote for the majority acknowledged, arguments that “the universal injunction ‘give[s] the Judiciary a powerful tool to check the Executive Branch.’ But federal courts do not exercise general oversight of the Executive Branch; they resolve cases and controversies consistent with the authority Congress has given them,” she emphasized. “When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too.” The justices held along ideological lines that the Judiciary Act of 1798 does not authorize federal district court judges to issue sweeping injunctions that stop the government from enforcing a policy throughout the country. 

Justice Sonia Sotomayor dissented, in an opinion that she read from the bench, which signaled her strong disagreement with the majority’s ruling. She stated that the majority had ruled that, “absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit.”

The decision did not address the merits or constitutionality of the EO, and we have discussed previously that the EO is probably unconstitutional and we hope that the Supreme Court will agree  when it rules on the merits. There will be continuing and evolving uncertainties, including legal challenges to the birthright citizenship order in the federal courts. For example, filed within hours of the decision, a lawsuit in New Hampshire seeks to designate a nationwide class of children needing protection from the EO. The nonprofit plaintiff organization, Casa Inc., also moved swiftly to modify their challenges into a class action. Indeed, the majority order that deemed nationwide injunctions a “shortcut to relief that benefits parties and nonparties alike” did not preclude federal courts from providing relief through class actions.    Meanwhile, at a press conference on June 27, 2025, President Trump announced that the administration plans to take additional actions to end birthright citizenship. These efforts will likely take the form of new agency rules, policies, and guidance aimed at implementing the EO.

If there is any issue that cries out in favor of the universal injunction it is for a court to protect a newborn from a blatantly unconstitutional executive order which the Supreme Court majority sadly failed to do. First it was outrageous that the Supreme Court used this case to demolish the notion of the universal injunction involving such a blatantly unconstitutional executive order. Steve Vladeck  states that class actions are more difficult to bring and are also subject to interlocutory appeals whether the court appropriately certified the class. Even though Justice Barrett held that prohibiting enforcement of the order against the child of a pregnant plaintiff would give that plaintiff complete relief, and extending the injunction to all similarly situated individuals will not render the relief more complete, this limitation on complete relief should not apply to a state plaintiff.  And if a state asks for complete relief and gets it from a district court then this too will be appealed to the Supreme Court, and there is a risk that a state would only be given relief for those who reside in the state. This could result in disastrous disparities in a birthright citizen case, as a child who is born in New Jersey and recognized as a citizen but who later moves to Texas would not be recognized as a citizen in that state.

The cumbersome class action is no substitute for a court to quickly block a blatantly unconstitutional executive order under universal jurisdiction. What if there was an EO prohibiting members of a religion from openly worshiping? A court should be able to quickly block it under universal jurisdiction.

What if Trump issues an EO demanding that all his opponents be shipped to a prison in El Salvador? If one such well-heeled opponent goes to court and gets an order it will only benefit her, and each opponent will have to obtain a similar order as Trump can otherwise keep on enforcing his unconstitutional actions.

Parents in H-1B/H-4 nonimmigrant visa status of a newborn in states that did not challenge the birthright citizenship EO will have to individually sue or join class actions to ensure that their child is recognized as a US citizen, or they are welcome to come to a state like New York or Massachusetts to give birth to their child. But how cruel to force the mother to travel when she is already in labor!

The Supreme Court’s order allows Trump to deny people rights that are embedded in the Constitution so long as they have not found a lawyer or asked a court to protect their rights, and even when they do, they may not succeed in that court. It aligns Trump’s America to an autocratic state, or worse, to a fascist regime.

 We also fear that ICE could start deporting plaintiffs and even newborns if they are here unlawfully before they get a favorable court order. The executive order applies not only to children of two undocumented parents, but also to the U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4. How will a child as soon as it is born acquire H-4 status? One needs to be admitted into the US in H-4 status or change from another nonimmigrant status into H-4 status. Perhaps, the Trump administration may need to issue a regulation recognizing H-4 status of the child at the time of its birth.    As we noted in a prior blog, the best chance for Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs to obtain permanent residence without waiting for several decades could be sponsorship by a U.S.-born adult child. Parents of children born after the effective date of the executive order may no longer have this opportunity. The executive order will cruelly create a permanent underclass of noncitizens if they are unable to challenge it individually or in a class action. The child in H-4 status would have to leave the US when it turns 21 unless it finds a way to change to another nonimmigrant status or obtain permanent residence independently such as through marriage with a U.S. citizen. 

People have rightly observed that the nationwide injunction has also benefitted Republican controlled states that are against pro-immigration policies such as the successful thwarting of DACA by Judge Hanen in a federal district court in  Texas who held that DACA was unlawful and issued a nationwide injunction.  On the other hand, even though Judge Hanen ruled DACA to be unlawful, his ruling has been appealed, and DACA still benefits its recipients in allowing them to extend their work permits since June 2012. Even if the Supreme Court ultimately agrees with Judge Hanen, there is a possibility that Congress can step in and provide a path for citizenship to DACA recipients.  If a policy is challenged in a legal action, the government that issued it can still defend it and Congress can also step in.  By contrast, without the benefit of a nationwide injunction, a blatantly unconstitutional executive order can continue to stand and adversely impact people, even newborn children. 

 

Cyrus Mehta & Kaitlyn Box*

The Inherently Moral Executive Actions on Immigration Cannot Die Under Trump

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump administration is doing its best to kill executive actions that benefit vulnerable noncitizens. In a June 6, 2025 Policy Alert, the administration announced that it would rescind automatic consideration of deferred action for noncitizens classed as Special Immigrant Juveniles (SIJ) who are unable to able for adjustment of status due to visa unavailability. This harsh measure will not only deprive noncitizens classified as SIJ who are trapped in the lengthy EB-4 backlog of work authorization based on deferred action, but may also leave them vulnerable to deportation. By way of justification for its policy, the administration asserts that “Congress… did not expressly permit deferred action and related employment authorization for this [SIJ] population. Neither an alien having an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without an immediately available immigrant visa available nor a juvenile court determination relating to the best interest of the SIJ are sufficiently compelling reasons, supported by any existing statute or regulation, to continue to provide a deferred action process for this immigrant category.” 

In Tyranny of Priority Dates, Gary Endelman and Cyrus Mehta laid the ground work for how executive actions can be used to provide ameliorative relief to millions of noncitizens caught in the crushing backlogs in the legal immigration system. It was unimaginable that the ideas proposed in this groundbreaking article in 2010 would have resulted in actual executive actions, but they did, from the State Department’s dual date visa bulletin to deferred action to parole for beneficiaries of approved visa petitions waiting outside the US. Most recently, the USCIS recognized that the filing date in the dual visa bulletin  could protect the age of the child under the Child Status Protection Act, which Cyrus Mehta  recommended in 2021. Even while Trump tries to snuff out executive actions that provide ameliorative relief, the blueprints for different executive actions outlined  in Tyranny of Priority Dates can never die, and should be protected and brought to life. 

June 15, 2025, marked the 13th anniversary of the Deferred Action for Childhood Arrivals (DACA) program. DACA was created in 2012 to offer deportation relief and work permits to young immigrants who were brought to the U.S. as children. While DACA has allowed hundreds of thousands of Dreamers to pursue education and careers, it remains under legal threat, with new applications currently blocked. Still, even if DACA is on a respirator, it allows recipients to continue to live, work, prosper and contribute to America. DACA has transformed for the better the lives of young, undocumented people who came to the U.S. as children. Without this policy, hundreds of thousands wouldn’t have accessed higher education, started careers, enjoyed the relative stability to start their families and contributed to the US in myriad ways through their skills and talents.  At the same time, with each passing DACA anniversary, there is tremendous uncertainty as the Trump Administration attempted to strip DACA recipients of their protections; an attack on the policy that continues in the courts today. The legal fight will continue into the Supreme Court. Regardless of how the Supreme Court rules on DACA, Congress must step in and provide protection to legal dreamers with a pathway to citizenship. DACA is too precious to be lost and for dreams to shatter. 

In a January 20, 2025 Executive Order entitled “Protecting the American People Against Invasion”, the Trump administration purported to remove the ability for immigration officials to exercise prosecutorial discretion. Notwithstanding the executive order, however, prosecutorial discretion as a concept is embedded in our immigration system and can never truly die. Even Trump himself seems to have acknowledged recently that immigration enforcement taken to the most aggressive extremes may have a deleterious impact. The administration has reportedly asked Immigration and Customs Enforcement (ICE) to “largely pause raids and arrests in the agricultural industry, hotels and restaurants”, recognizing that apprehending and detaining immigrant workers in these key industries was likely to harm the U.S. economy and generate a public backlash. 

Ameliorative executive actions such as deferred action and parole have long been used by prior administrations to provide ameliorative relief to millions of vulnerable immigrants left unprotected due to our imperfect immigration laws which Congress has proved incapable of amending over the past few decades. Even if Trump disfavors executive actions that are inherently moral and do good, these concepts will continue to remain blueprints for future enlightened immigrant and immigrant- friendly administrations to re-activate, as well as serving as models for future legislation. In the meantime, today, across the country, people are marching to stand up to abuse of power, unlawful detentions and the cruel and unjust termination of immigration programs. The movement must continue to swell until the Trump administration realizes that being a dictator to immigrants will backfire and will drive him and his minions out of office and into the dustbin of history. 

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

 

Cyrus Mehta & Kaitlyn Box*

In the Walmart Case, the Government Cannot Have Its Cake and Eat it too

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In a previous blog, excerpted here, we analyzed Walmart, Inc. v. Jean King, which involved a challenged by Walmart to the administrative proceedings against it for violations of immigration-related recordkeeping requirements on the ground that the proceedings were “being conducted by an administrative law judge (“ALJ”) who is unconstitutionally shielded from the President’s supervision. ALJs like Jean King, who was presiding over the proceedings against Walmart and is the Chief Judge within the Office of the Chief Administrative Hearing Officer (OCAHO), can be removed from their position only for “good cause” as determined by the Merits System Protection Board (MSPB) and by the president for “only for inefficiency, neglect of duty, or malfeasance in office”. Walmart alleged that this system violates the Constitution by insulating ALJs “from presidential control by two levels of removal protection”. Walmart argued that Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed”, requires him to have the power to remove executive officers. Only two types of officers have been determined to be exempt from the President’s removal power – principal officers, who report directly to the President, and inferior officers, who are appointed by the President but supervised by others. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). Walmart argued that ALJs do not within either of these exceptions, “so the removal scheme that protects them is unconstitutional twice over”. Chief Justice J. Randal Hall of the United States District Court for the Southern District of Georgia agreed with Walmart and granted its motion for summary judgement, finding that “the multilevel protection from removal present for the OCAHO ALJs is contrary to Article II, and contrary to the executive power of the President.”

The federal government appealed this finding, and the US Court of Appeals for the Eleventh Circuit heard in the case on Friday, June 6. Attorney Jeff Johnson, representing Walmart, argued that the statutory defect invalidates ALJs’ authority, stating: “I’m saying when you bake in an unseverable removal restriction, that takes away their power to act just as much.” The government, on the other hand, stated that it would not defend the constitutionality of the removal provisions for ALJs, but, at the same time, argued that ALJs should still be left with the authority to penalize Walmart and other employers in enforcement proceedings.  Joshua Salzman, attorney for the government, stated: 


“Here they are saying all I-9 enforcement has to stop unless and until Congress is able to act. And it’s not just I-9 enforcement — that actually wildly understates the stakes of the potential implications of their argument”, noting the wide range of administrative proceedings over which ALJs preside. 

[…]


“I could go on and on and on…but the logic of the district court’s opinion here is, all of it stops unless and until Congress amends the statute.”

 

The Supreme Court has previously held that two types of officers have been determined to be exempt from the President’s removal power – principal officers, who report directly to the President, and inferior officers, who are appointed by the President but supervised by others. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). As it stands, ALJs may not fall within either of these categories. Even if they are considered inferior officers, because they cannot be easily removed, their appointment may still be unconstitutional.  If the court can sever only the problematic removability clause from the statutory provision giving authority to ALJs, perhaps ALJs can be interpreted to be constitutionally appointed. The 11th Circuit panel indicated that if the government was unwilling to defend the constitutionality of the removal provisions, it would appoint a third party to take up the defense of those protections’ constitutionality. “The court can’t simply accept the government’s concession of unconstitutionality without evaluating the issue for itself,” they said.

It is noteworthy that the administration has refused to defend the constitutionality of the removal procedures of ALJs. Earlier in February 2025,  Acting Director Sirce Owen of the Executive Office for Immigration Review (EOIR) issued Policy Memorandum (PM) 25-23 stating that, in the context of any future personnel actions and after additional review, EOIR may decline to recognize the multiple layers of for-cause removal restrictions for all of EOIR’s inferior officers if they are determined to be unconstitutional.  If the government is unwilling to defend the statute regarding the removal procedures for ALJs, and  the court cannot remedy it,  then Congress should step in to amend it. Although it is easy to assume that Congress is in a logjam and is not capable of intervening, it should nonetheless do its job and act. Otherwise, the ALJ system should be dismantled and judges who are not constitutionally appointed should have no authority to sanction employers.  The government cannot have its cake and it it too!

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

 

Cyrus Mehta & Kaitlyn Box*

The Great Betrayal: Supreme Court’s Ratification Of Trump’s Termination of CHNV Parole

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On March 25, 2025, DHS terminated parole programs that had allowed an estimated 530,000 Cubans, Haitians, Nicaraguans, and Venezuelans to enter the United States legally in 2022 and 2023. The federal register notice stated that “Paroled aliens, including those paroled under the CHNV parole programs, may apply for any immigration benefit or status for which they may be eligible, including discretionary employment authorization under the [8 CFR 274a.12(c)(11)] employment eligibility category…” However, on February 14, 2025 USCIS implemented an administrative hold on processing of all applications for benefits filed by CHNV parolees, as well as individuals who entered the United States pursuant to the United for Ukraine program, or the Family Reunification Parole process.

DHS’ termination of these parole programs was quickly challenged through litigation. See Svitlana Doe, et al., v. Noem, et. al., No. 25-cv-10495 (D. Mass. Apr. 14, 2025). On April 14, 2025, the United States District Court for the District of Massachusetts temporarily stayed the early termination of the CHNV parole programs, as well as EADs issued in connection with these programs. The district court held that Plaintiffs were likely to succeed in their claims that DHS’ termination of the program was arbitrary and capricious, reasoning that the Federal Register Notice

“gave no explanation or support for the conclusion that the CHNV programs were addressing relevant humanitarian concerns through something other than case-by-case determinations. The FRN also gave no rationale for its conclusion that such humanitarian concerns no longer justified the existing parole programs and offered no reasons for categorically revoking parole despite the humanitarian concerns previously articulated by DHS. Finally, despite asserting that “DHS believes that consideration of any urgent humanitarian reasons for granting parole is best addressed on a case-by-case basis consistent with the statute, and taking into consideration each alien’s specific circumstances,” 90 Fed. Reg. at 13612, the FRN provides for no individual case-by-case determination as to the humanitarian concerns facing each parolee whose parole is being truncated.”

DHS appealed to the First Circuit, which declined to overturn the stay, and ultimately to the Supreme Court.

On May 30, 2025, the Supreme Court issued an abbreviated order blocking the district court’s stay. This order in effect allows DHS’ termination of the parole programs to continue even while the First Circuit makes a decision on the merits of the case. In her dissent, joined by Justice Sotomayor, Justice Ketanji Brown Jackson argued that the Court’s order “undervalues the devastating consequences of allowing the Government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending…While it is apparent that the Government seeks a stay to enable it to inflict maximum predecision damage, court-ordered stays exist to minimize—not maximize—harm to litigating parties.”

The Trump administration’s abrupt termination of the program leaves hundreds of thousands of individuals vulnerable to being placed in removal proceedings and potentially returned to turbulent and unsafe home countries. It also puts into doubt the validity of the EAD under 8 CFR 274a.12(c)(11). Although the EAD under (c)(11) may be valid on its face if it has not expired, a public announcement of the termination of the program would put employers on notice that impacted employees are no longer authorized to work under 8 USC 1324(a)(1)(A) and (2). The Supreme Court order has stayed the District Court’s order that prevented the DHS from terminating CHNV parole, including (c)(11) EADs issued pursuant to the program.   Still, employers may not know whether the (c)(11) EAD is associated CHNV parole or some other kind of parole, and it may be discriminatory to ask an employee to provide the basis for the (c)(11) EAD. EADs issued to CHNV parolees bear the same code as EADs issued to other parolees, unlike, for example, DACA EADs, which have a different code from other deferred action cases. Moreover, it is entirely plausible that that many CHNV parolees may have c(8) EADs by now based on pending I-589 asylum applications, and 8 USC 1324(a)(B) does not obligate an employer to ask. Employers have to walk a fine line to avoid discrimination in requesting additional documents from employees to determine if an employee is no longer work authorized.  AILA advises  that “organizations employing CHNV parolees should evaluate the risks and potential consequences associated with identifying this specific population of their workforce, how to update I-9 records and confirm these individuals’ continued (in)eligibility to work in the United States, providing these individuals with an opportunity to present other documents from the List of Acceptable Documents, and the potential impact on the organization’s workforce planning strategies and the continuity of their business operations.” See AILA Doc. No. 25042408.

The Supreme Court’s ratification of this betrayal is even more disappointing, however. Individuals who entered the United States pursuant to these parole programs did so legally, only to have the rug cruelly ripped out from under them.

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

Cyrus Mehta & Kaitlyn Box*

Fighting Back Trump’s Attacks on Foreign Students

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In recent weeks, the Trump administration has launched a concerted assault on international students and their ability to remain in the U.S.  In the latest volleys against Harvard University, the Trump administration ordered the revocation of Harvard’s Student and Exchange Visitor Program (SEVP) certification, which will ban the university from enrolling international students and force international students currently studying at Harvard to transfer or risk falling out of status. After Harvard filed a complaint, a U.S. district court judge ordered the ban to be halted temporarily in the face of ongoing litigation. International students reportedly make up more than a quarter of Harvard’s student body.

According to reports, U.S. Immigration and Customs Enforcement has also recently began sending warning notices to certain F-1 students who have been enrolled in the Optional Practical Training (OPT) program for more than 90 days but have not reported any employment status.

The notices afford impacted students 15 days to update their Student and Exchange Visitor Information System (SEVIS) record with employment information. If no action is taken, the student’s SEVIS record could then be terminated for a violation of status on the grounds that they failed to timely report OPT employment or exceeded the maximum permissible 90-day period of unemployment during OPT. The notice further warns that failure to take corrective action may result of the student being placed in removal proceedings.

Moreover, the administration has evidenced a desire to thwart international students’ ability to remain in the U.S. and work post-graduation. Joseph Edlow, nominated by the president to be the Director of USCIS, stated the following of the OPT program during his Senate confirmation hearing:

“I think the way in which OPT has been handled over the past four years, with the help of certain decisions coming out of the D.C. Circuit Court, have been a real problem in terms of misapplication of the law.

[…]

What I want to see would be essentially a regulatory and sub-regulatory program that would allow us to remove the ability for employment authorizations for F-1 students beyond the time that they are in school.”

Endlow was undoubtedly referring to the U.S. Court of Appeals for the D.C. Circuit’s decision in Washington Alliance of Technology Workers v. the U.S. Department of Homeland Security (“Washtech v. DHS”), which upheld the STEM OPT extension as authorized under the Immigration and Nationality Act. Washtech was analyzed at length in a prior blog, which is excerpted here. The case involved a challenge to the rule permitting eligible students in STEM fields to seek an additional 24 month OPT extension beyond the usual 12 month OPT period by the Washington Alliance of Technology Workers (Washtech), a union representing tech workers. Washtech read INA § 101(a)(15)(F)(i) as authorizing DHS to allow F-1 students to remain in the U.S. only until they have completed their course of study, as the provision does not specifically mention post-graduation practical training. The court upheld the STEM OPT extension, reasoning that it is a valid exercise of DHS’ authority under in INA § 214(a)(1) to promulgate regulations that authorize an F-1 student’s stay in the U.S. beyond graduation. The court further noted that “practical training not only enhances the educational worth of a degree program, but often is essential to students’ ability to correctly use what they have learned when they return to their home countries. That is especially so in STEM fields, where hands-on work is critical for understanding fast-moving technological and scientific developments.” Judge Pillard, who authored the opinion, noted that the concept of post-coursework practical training for foreign students predates the Immigration and Nationality Act of 1952, pointing to a 1947 rule which “allowed foreign students ‘admitted temporarily to the United States . . . for the purpose of pursuing a definite course of study’ to remain here for up to eighteen months following completion of coursework for ‘employment for practical training’ as required or recommended by their school”. Practical training has been authorized even prior to the enactment of the INA in 1952.

While there is no explicit authorization in the INA for OPT, it has been around for over 70 years and predates the Immigration and Nationality Act of 1952, as the court emphasized in Washtech.  Under Lorillard v. Pons, 434 U.S. 575, 580 (1978), Congress is presumed to be aware of an administrative interpretation of a statute and to adopt that interpretation when it reenacts its statutes without change. One can argue the reverse of Lollilard v. Ponce in a challenge to a proposed DHS rule that would limit or eviscerate OPT. OPT is so baked into the longstanding interpretation of  INA § 101(a)(15)(F)(i) ought to be, which allows a student to enter the U.S. in F-1 status to complete a course of study, and affords additional time beyond the course of study through Optional Practical Training. This is how Congress intended § 101(a)(15)(F)(i) to operate over the several decades even as it amended the Immigration and Nationality Act of 1952 several times. Thus, any curtailment of OPT would arguably not be authorized under INA § 101(a)(15)(F)(i).

Any efforts by the Trump administration to abolish OPT could also be vulnerable to challenges under the Administrative Procedure Act (APA). Abolishing OPT would clearly have a devastating impact on U.S. schools, as international student are likely to enroll in fewer numbers if they cannot pursue practical experience in their fields of study. Perhaps the Trump administration would argue that international students in the workforce limit the ability of U.S. workers to get jobs. However, any attempt to argue that international students attending U.S. schools do not add value to the United States appears to clash with INA § 101(a)(15)(F)(i), which makes clear that international student are a Congressionally authorized category of nonimmigrant visa classification, which is implicitly beneficial to the US.

In 2020, in Department of Homeland Security v. Regents of the University of California, the Supreme Court held that the Trump administration had run afoul of the APA when it rescinded the Deferred Action for Childhood Arrivals (DACA) program. Cyrus Mehta discussed this case in a prior blog. The Court found the rescission of DACA to be “arbitrary and capricious,” noting that “[w]e do not decide whether DACA or its rescission are sound policies,” but only “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” Chief Justice Roberts’ opinion faulted the administration for not factoring reliance interests, as DACA recipients had enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae, which estimated that hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. The reliance interests at issue in any effort to rescind OPT would be similarly weighty. International students enroll in degree programs and pay tuition to U.S. universities in reliance on the assumption that they will be able to gain practical experience in their field of study through OPT employment after graduation. If international students are deterred from studying in the U.S., American universities will suffer, as will U.S. employers who can no longer employ talented foreign graduates. Economists too find OPT to be an economic boon to America  and prohibiting OPT will find it musth more difficult for US companies to  retain talent.

Trump does not only want to attack and curb practical training but also  wants to prevent international students from having the opportunity to come to the U.S. and study at Harvard, America’s most prestigious university. Without international students, who should be able their mind or express their views without fear, Harvard will not be Harvard and the American University that has long commanded respect and prestige throughout the world will sink in Trump’s swamp. Finally, Trump has also detained and attempted to remove foreign students for expressing lawful speech that his administration disfavors, and so far the courts are pushing back on grounds that their detention was retaliatory and unconstitutional as we have discussed in our blog on our client  Mohsen Mahdawi’s successful challenge to his unlawful detention.

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