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Trump v. Barbara: How the Supreme Court Dodged a Bullet on Birthright Citizenship

July 1, 2026/0 Comments/in Blog/by Cyrus Mehta & Kaitlyn Box*

By Cyrus D. Mehta and Kaitlyn Box

The Supreme Court’s decision in Trump v. Barbara did far more than invalidate an overreaching executive order – it prevented a wholesale destabilization of American citizenship that could have echoed backward through generations. By a narrow but decisive majority, the Court rejected President Trump’s attempt to narrow birthright citizenship, reaffirmed the core holding of United States v. Wong Kim Ark, and drew clear lines that future administrations will find difficult to cross.

Trump’s executive order tried to rewrite the Fourteenth Amendment’s Citizenship Clause by narrowing the meaning of “subject to the jurisdiction thereof.” Under the executive order, a person born in the United States would not be a citizen at birth if, at the time of birth, both of the child’s parents were either undocumented, or held only a nonimmigrant status (for example, F-1, H-1B, etc.). This clashed directly with the text and history of the Fourteenth Amendment and with 8 U.S.C. § 1401(a), which together embody the longstanding rule that almost all persons born on U.S. soil, regardless of their parents’ immigration status, are citizens at birth.

The majority, in an opinion by Chief Justice Roberts, rejected the government’s theory and reaffirmed the rule announced in Wong Kim Ark at the end of the nineteenth century. The Citizenship Clause, the Court said, is “declaratory” of the common-law principle of jus soli: if you are born in the United States and are subject to its laws, you are a citizen at birth, with only narrow, historically recognized exceptions such as the children of foreign diplomats, enemy occupiers, and, historically, members of Native American tribes before Congress extended citizenship by statute. The majority emphasized that neither the word “legal” nor “permanent” nor any reference to parental status appears in the Citizenship Clause, and it declined to read them in. The Court rejected the idea that the meaning of “subject to the jurisdiction” could be transformed in response to modern political anxiety about unauthorized immigration or “birth tourism.”

“Citizenship, then and now,” Roberts states, “was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ We keep that promise today.”

At oral argument, Justice Amy Coney Barrett had highlighted how “messy” and unworkable a parent-focused test would be. If citizenship turned on parental domicile, lawful presence, or subjective intent to remain, the government would be forced into endless, intrusive factual inquiries. Foundlings—abandoned infants whose parents are unknown—would languish in legal limbo if citizenship depended on the status of parents who cannot be identified. Even where parents are known, the government would have to reconstruct, years later, their precise legal status and even their state of mind at the time of birth. Justice Barrett’s hypotheticals, such as that of a U.S. citizen living abroad who returns briefly to the United States to give birth and then leaves again, underscored the absurdity of tying a newborn’s citizenship to parental “intent to stay.” The majority opinion took those concerns seriously, noting that a constitutional rule that invites such guesswork is not a rule at all, but an invitation to arbitrary decision-making.

Had the executive order been upheld, the immediate consequences for future children would have been profound. Children born in the United States to undocumented parents would no longer have citizenship at birth. Depending on the nationality laws of their parents’ home countries, some might qualify for citizenship elsewhere, but others would not, rendering them effectively stateless.

The order would also have swept in children born to parents in lawful but temporary status, including H-1B professionals, H-4 dependents, students, exchange visitors, and tourists. Newborns, however, are not “admitted” at a port of entry and are not assigned a nonimmigrant status at birth. It is far from clear what lawful status such children could hold, if any, from the moment of birth. Parents would have been thrust into a frantic race to file complex applications with U.S. Citizenship and Immigration Services days after the child’s birth, and innocent errors or delays could lead to their infants being treated as out of status and removable.

Beyond these immediate disruptions, the order threatened to draw U.S. citizen parents into the same web of suspicion. Once citizenship no longer flows automatically from birth on U.S. soil, vital records offices, hospitals, and federal agencies could start to demand proof that a child meets whatever conditions the executive or Congress has grafted onto the Constitution. Parents might have been asked to demonstrate not only their own citizenship or lawful status, but also that they were domiciled in the United States and intended to remain here at the time of birth. A U.S. citizen who had long resided abroad and returned home to give birth and before resuming life overseas, could have found her child’s citizenship questioned on the ground that she lacked the necessary “ties” at the crucial moment. What is now a simple administrative act—recording the birth of an American child—could easily have become an adversarial process.

The most dangerous implications, however, laid in the potential retroactive use of a narrowed constitutional rule. During oral argument, Justice Sotomayor recalled the historical episode in which Native Americans, who had previously been treated as citizens in some contexts, were denied that status and even stripped of it based on shifting interpretations of law and policy. If the Court were to declare that the Fourteenth Amendment never guaranteed citizenship at birth to those whose parents were unlawfully present or only temporarily in the country, that logic would not be confined to future births. It would invite litigation and executive action to revisit and undo the citizenship of people now living as American citizens.

The majority addressed this concern obliquely by emphasizing continuity and reliance. It cited over 150 years of practice and precedent in which the United States has consistently treated birth on U.S. soil, with very limited exceptions, as sufficient for citizenship. By framing Wong Kim Ark as both historically grounded and repeatedly reaffirmed, the Court signaled that citizenship acquired under that understanding is not a mere policy choice but a constitutional baseline. To overturn that baseline would not simply correct an error; it would reorder the political community in ways the Fourteenth Amendment was adopted to prevent.

Justice Kavanaugh’s concurrence, while more cautious in its constitutional analysis, helped solidify the result. He expressed some sympathy for the view that Congress might, in theory, have authority to define by statute certain narrow categories of noncitizens born here, but concluded that the existing statute, 8 U.S.C. § 1401(a), plainly grants citizenship at birth to almost all persons born in the United States. Whatever Congress’s latent power might be, the President lacks any authority to override this statutory command by executive order. Kavanaugh’s opinion stressed separation of powers: even if one accepts a more limited view of the Citizenship Clause, it is for Congress, not the president acting alone, to make changes of this magnitude. That concurrence, grounded in statutory interpretation and institutional humility, provided an additional barrier against presidential attempts to unsettle citizenship by decree.

In contrast, the dissents sketched the alternate future the country narrowly avoided. In the principal dissent, Justices Thomas and Gorsuch adopted a narrow reading of the Fourteenth Amendment’s Citizenship Clause and would have upheld Trump’s executive order. They argued that “subject to the jurisdiction thereof” does not simply mean being subject to U.S. laws in the ordinary sense, but requires a fuller, genuine allegiance and a lawful, consensual relationship with the United States. In their view, the Framers of the Fourteenth Amendment did not intend to confer automatic citizenship on the U.S.-born children of parents who had no legal right to remain in the country or who were present only fleetingly and conditionally. The dissenters relied heavily on historical sources and Reconstruction-era debates to claim that the Clause was aimed at freeing formerly enslaved people and securing their status, not at constitutionalizing a broad jus soli rule for all comers, regardless of parental status. They treated Wong Kim Ark as either wrongly decided or at least tightly limited to its facts: a child born in the United States to parents who were long-term, legally resident subjects of a foreign sovereign. From that perspective, the dissenters maintained that the Trump administration’s interpretation was a permissible, even necessary, restoration of the original understanding of the Citizenship Clause, and that the executive order did not contradict the Constitution but implemented it.

Justice Alito wrote separately to stress practical and policy concerns, though he agreed with the core constitutional reasoning of Thomas and Gorsuch. He accepted the premise that “subject to the jurisdiction” incorporates a concept of allegiance and lawful, non-transient presence. He argued that, in a modern context of large-scale unauthorized migration and what he termed “birth tourism,” it is reasonable to interpret the Clause so that birthright citizenship does not extend to the children of those who deliberately evade the immigration laws or enter solely to secure citizenship for a child. Alito’s dissent emphasized that the Constitution should not be read to “lock in” what he viewed as unintended consequences of a broad jus soli rule. He suggested that the political branches must retain flexibility to respond to contemporary problems, and saw Trump’s order as a permissible exercise of that flexibility. While he disclaimed any desire to strip citizenship from those long recognized as Americans, his framework did not supply a clear constitutional barrier against future retroactive efforts; instead, he gestured to reliance interests and administrative practicality as reasons to proceed cautiously

Gorsuch also wrote a separate brief dissent, in which he suggested that Trump’s executive order might violate the Constitution as it applies to the children of undocumented immigrants who intend to live in the United States permanently. “If those parents are not domiciled here,” Gorsuch queried, “then where are they domiciled? And if the answer is nowhere,” he continued, “how can we reconcile that conclusion with this Court’s longstanding recognition that every person is domiciled somewhere?” Because the challengers in this case have argued that Trump’s order is invalid in all circumstances, rather than just some, Gorsuch explained, “these questions may not be properly before us. But their answers are undeniably important to a Nation committed to a view of citizenship open to all children born here to parents who can call this country their home.”

Layered over these doctrinal disagreements was a deeper dispute about the nature of citizenship itself. The majority and concurrences treated citizenship as a foundational status that must be stable, knowable, and insulated from day-to-day politics. They viewed the Citizenship Clause as a hard-won guarantee, adopted in direct response to Dred Scott and the exclusion of Black Americans from the political community, meant to fix in the Constitution a clear, objective rule for who belongs. The dissents, by contrast, cast citizenship as more contingent and malleable, something that can be recalibrated to reflect current policy concerns about migration and enforcement. Under that vision, the meaning of “subject to the jurisdiction” becomes a tool for shaping the membership of the polity rather than a safeguard against its manipulation. Had the dissenters’ view prevailed, the multigenerational implications would have been staggering. If X, born in the United States decades ago to parents now classified as outside the Fourteenth Amendment’s protection, was never a citizen at birth, then X could not have lawfully passed citizenship to Y. If Y is not a citizen, Y cannot transmit citizenship to Z. Family trees that stretch back for generations in the United States would be legally reimagined as never having produced a single American citizen. Many who championed the executive order in the name of restricting immigration might have awoken to find that their own citizenship, and that of their children and grandchildren, rested on the very understanding of the Fourteenth Amendment they sought to undo.

By rejecting that path, the Court has allowed the United States to dodge a constitutional bullet. Trump v. Barbara confirms that citizenship acquired by birth on U.S. soil, subject to U.S. law, is not a revocable privilege but a constitutional guarantee. It closes the door, at least for now, on efforts to use executive power to narrow that guarantee and to reopen settled questions about who is American. It also restores a clear line between the political branches: whatever debates may arise in Congress about the outer edges of citizenship, the President cannot, by unilateral order, rewrite the constitutional and statutory rules that have defined the national community for more than a century.

Trump and many of his supporters envision mass deportations as a way to reshape the country’s demographic and political future. What Trump v. Barbara underscores is the peril in trying to achieve that goal by tampering with the foundations of citizenship itself. Had the Court blessed the executive order, it would have created the legal and conceptual space to question the citizenship of millions, including many who never imagined their status could be in doubt. By instead reaffirming the Fourteenth Amendment’s broad and inclusive promise, the Court has preserved not only the rights of today’s newborns, but also the stability and integrity of American citizenship across generations.

Mullin v. Doe: Blessing a Race-Neutral Cover for Racial Animus

June 25, 2026/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D Mehta and Damira Zhanatova*

The Supreme Court’s decision in Mullin v. Doe is a major setback for TPS holders and a deeply troubling signal about how the Court is willing to treat racialized immigration policy. By allowing the Trump administration to move forward with ending Temporary Protected Status (TPS) for Haitians and Syrians, the Court not only stripped away a critical layer of protection for hundreds of thousands of people, but also dismissed powerful evidence that racial animus infected the decision to terminate Haiti’s TPS designation.

The majority opinion, written by Justice Alito, begins with the statute’s judicial-review bar. The Court reads 8 U.S.C. §1254a(b)(5)(A) to mean that courts may not review “any determination” by DHS “with respect to the designation, or termination or extension of a designation” of a foreign state. In the Court’s view, the word “determination” is broad enough to cover not only the final decision to terminate TPS, but also the entire chain of events leading to it. That reading allows the Court to reach the sweeping conclusion that the statute “squarely bars all of respondents’ non-constitutional claims.”

That holding is especially significant because it forecloses APA challenges based on process. The district courts had concluded that DHS failed to comply with the Immigration and Nationality Act’s mandatory consultation requirements before ending TPS for Haiti and Syria. Justice Kagan’s dissent explains the point clearly: the statute requires the Secretary, “after consultation with appropriate agencies of the Government,” to review country conditions and determine whether the TPS criteria continue to be met. The mandatory steps are not optional, and the government’s scant email exchange with the State Department did not satisfy them. As she puts it, the communications were about “foreign policy concerns,” not about whether the countries were actually safe for return, and that meant the Secretary did not fulfill the consultation requirement. In her words, “After today, a secretary can announce to the world that she didn’t consult with anyone – more, that she didn’t evaluate country conditions at all – before making, extending, or terminating a TPS designation. And the courts will be powerless to intervene.”

The majority’s reading makes procedural defects far harder to challenge, even where the agency skipped or truncated the very steps Congress prescribed. It also means that if a client’s TPS termination challenge rests on consultation failures, arbitrary review practices, or other process defects, the path to relief is now far narrower.

That reading of the statute is already troubling. But the Court went further. It also rejected the claim that Haiti’s TPS termination was driven by racial animus. The record included repeated disparaging comments by President Trump and former Homeland Security Secretary Kristi Noem about Haitians, immigrants, and TPS recipients. Trump said Haitian immigrants were eating people’s pets and claimed unlawful immigrants are “poisoning the blood of our country” and have “bad genes.” Noem described some immigrants as “leeches,” “entitlement junkies,” and “foreign invaders” who “suck dry our hard-earned tax dollars.” Justice Alito acknowledged that political discourse has become “increasingly couched in terms that would have scandalized the public just a short time ago,” but he still concluded that the statements were not enough to show Haiti’s TPS designation was terminated because of the race of the Haitian people.

That is where the majority’s reasoning becomes most dangerous. It treats racialized hostility as legally irrelevant so long as the government can recast it as general immigration policy. Justice Kagan’s dissent forcefully pushes back. She said the majority was wrong to hold that the courts cannot review whether the Secretary followed the statute’s required procedures. In her view, a secretary cannot skip consultation, terminate TPS, and then claim the decision is insulated from judicial scrutiny. She also said the racial evidence was “plain to see” and that the President’s statements were “so repellent and racially inflected” that the majority would not even repeat them in full. As she put it, “[t]he statements fairly shout, in their racial undertones and overtones alike, that race entered into the president’s resolve to remove Haitians from this country.” Justices Sotomayor and Jackson joined her dissent.

Justice Kagan’s dissent is also candid and persuasive. She explains that the equal protection framework is Arlington Heights, under which plaintiffs need only show that race was “a motivating factor” in the decision, not the only or even the primary one. She emphasizes that courts must consider historical background, sequence of events, and contemporary statements by decisionmakers. She then quotes the President’s statements at length, and the force of her language is strikingly forthright in contrast to the majority that was too embarrassed to quote him. Haitians, she writes, were described as “eating the dogs,” “eating the cats,” and “eating the pets of the people that live [in Springfield, Ohio].” Haitians in the United States “probably have AIDS.” Haiti was called a “shithole country,” “filthy, dirty, [and] disgusting.” Haitian immigration was said to be “like a death wish for our country,” and Haitians were accused of “poisoning the blood” of the country. She notes the contrast with the desire for people from “Norway” and “Sweden.” Her point is direct: “Haitians are Black. (Norwegians and Swedes not so much.)” The references to filth, disease, and primitiveness are, in her words, “shot through with racial stereotypes and tropes.” She concludes that “[t]he statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.”

The dissent makes clear that discriminatory purpose can be inferred from context, not just explicit racial slurs. That is particularly important in immigration cases, where coded language, historical animus, and repeated disparagement often substitute for direct racial labels. Justice Kagan also explains that the majority’s “race-neutral explanation” does not defeat the claim. Under Arlington Heights, the question is not whether race was the sole cause. It is enough if race was one motivating factor among others. In her view, if race entered the decision at all, the Haiti TPS termination is “irretrievably tainted.”

That is why the majority’s treatment of the record is so troubling. It does not deny the ugly rhetoric. It simply says the statements are not “overtly racial” and can be understood as policy views about immigration and TPS. It sends the message that a president and his administration can use racially loaded language about Haitians and other immigrants from poorer countries, then shield the resulting policy decision behind a facially neutral administrative rationale. The Court unfortunately took a similar approach in 2018 in Trump v. Hawaii, looking past Trump’s overt animus towards Muslims to uphold a travel ban targeting Muslim-majority nations under the guise of national security.

Justice Thomas’s concurrence makes the implications even broader. He would hold that the TPS statute’s “no judicial review” language bars constitutional claims too. In his view, Congress’s intent to preclude judicial review is clear, and there is no constitutional obstacle to stripping federal courts of jurisdiction over these claims. He goes further and argues that “aliens have no equal protection rights against the federal government.” He says the Constitution’s Equal Protection Clause applies to the states, not the federal government, and he criticizes the Court’s recognition of an equal protection component in the Fifth Amendment’s Due Process Clause. He also maintains that even if the Due Process Clause contains some nondiscrimination principle, it would not apply here because TPS is a government-created privilege, not a protected right.

Thomas’s concurrence is notable because it points toward an even more restrictive future in which not only APA claims, but also constitutional claims, could be barred entirely in TPS litigation. That position is not the law of the majority opinion, but it underscores how fragile judicial review has become in this area.

The practical consequences of the decision are immediate and severe. It could affect roughly 350,000 Haitians and 6,100 Syrians who hold TPS, and it could also reverberate for hundreds of thousands of other TPS holders from more than a dozen countries whose status has been terminated. The government’s ability to expel people quickly will depend in part on whether they already have deportation orders pending. In many instances, TPS holders do not have such orders, which may give them some ability to contest removal from the country as well as seek relief either before or in removal proceedings. But where removal orders are already in place, the government may be able to move more quickly.

That distinction matters in practice. TPS holders are not abstract legal categories. They are clients, coworkers, students, caregivers, parents, and long-time residents who have lived lawfully in the United States and built lives here. Many have succeeded in college, advanced in their careers, supported U.S. citizen family members, and contributed to their communities. The decision is especially cruel because it strips away protection while minimizing the legal significance of the rhetoric that helped produce the policy in the first place.

Our earlier blog captured this same pattern months before the Supreme Court ruled. That post explained how Trump and J.D. Vance used baseless claims about Haitian immigrants in Springfield, Ohio, and why such rhetoric had real-world consequences for Haitian TPS holders. It also linked those comments to the broader Trump-era effort to terminate TPS protections for Haitians and other non-white immigrant communities. Mullin v. Doe now reflects the same dynamic at the highest judicial level: the Court has accepted a legal framework that makes it easier to separate poisonous rhetoric from policy consequences, even when the two are plainly connected.

The administration celebrated the ruling as a win for temporary status and administrative discretion. White House spokesperson Abigail Jackson called it “a tremendous win,” and DHS general counsel James Percival said, “The T in TPS stands for TEMPORARY.” But that framing misses the central issue. The case is not only about whether TPS is temporary. It is about whether the government can use racially charged rhetoric against Haitians and other immigrant communities, terminate their protection through procedures lower courts found defective, and avoid meaningful judicial review. In Mullin v. Doe, the Court’s majority unfortunately said yes.

Congress can still protect vulnerable TPS recipients by passing a bill that could legalize their status notwithstanding the Supreme Court decision. There would need to be a supermajority vote of 60 in the Senate even if the House passes a bill with a simple majority. While this may seem daunting given that the GOP has a majority in both chambers of Congress, the composition and control of both chambers might change after the midterms in November 2026! While the Trump administration may be taking a victory lap, history will not be too kind to it and this Supreme Court. This case that condoned Trump’s despicable racism towards Haitians will be relegated to history’s dustbin like Dred Scott, Plessy v. Ferguson and Korematsu.

From USCIS Approval to Consular Refusal: Is a 214(b) Denial of an O-1 Visa Legally Justified?

June 21, 2026/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta and Manjeeta Chowdhary *

For many beneficiaries, approval of an O-1 petition by U.S. Citizenship and Immigration Services (“USCIS”) feels like the final hurdle has been cleared. After all, USCIS has already reviewed the petition and determined that the beneficiary qualifies for O-1 classification as an individual possessing extraordinary ability or achievement in the relevant field. Yet, in practice, some beneficiaries encounter an unexpected obstacle at the consular stage: a refusal under Section 214(b) of the Immigration and Nationality Act (“INA”).

Section 214(b) provides that every applicant for a nonimmigrant visa, other than applicants for certain expressly dual-intent categories such as H-1B, L, and V, is presumed to be an immigrant unless the applicant establishes entitlement to the requested nonimmigrant classification. However, the analysis does not stop there. The statute also requires that the applicant “establish…that he is entitled to a nonimmigrant status under Section 101(a)(15).” According to the US Department of State, a refusal under INA Section 214(b) may occur where an applicant either fails to establish qualification for the requested visa category or fails to overcome the presumption of immigrant intent where required by law. In many visa classifications, this inquiry focuses heavily on demonstrating strong ties abroad, such as employment, residence, family, or financial commitments outside the United States. The burden remains on the applicant to establish eligibility for the requested classification pursuant to Section 291 of the INA.

The O-1 visa category differs from other traditional nonimmigrant classifications such as the B or F-1. The Foreign Affairs Manual (FAM), which guides consular officers in visa adjudications, recognizes that O-1 does not fit neatly within the conventional immigrant-intent framework that applies to many other nonimmigrant visas.

Under 9 FAM 402.13-10(U), an O-1 applicant remains subject to INA Section 214(b) and is therefore “presumed to be an immigrant” until the applicant establishes eligibility for O-1 nonimmigrant status. At first glance, that rule appears no different from the standard applied to many other nonimmigrant categories. The analysis, however, is more nuanced. The FAM explains that although “an intent to remain temporarily in the United States is a requirement for O-1 classification,” an O-1 applicant “does not have to have a residence abroad which they do not intend to abandon.” It also recognizes that “dual intent” is permissible for O-1 visa holders. This distinction is significant.

Unlike visitor, student, and certain other nonimmigrant categories – where applicants are often expected to show strong ties abroad and an intent to leave the United States after a temporary stay – an O-1 applicant need not prove an unabandoned foreign residence. At the same time, O-1 classification is not formally recognized as a statutory dual-intent category like H-1B or L-1, as Congress has not explicitly stated that it is dual intent. Instead, it occupies a quasi-dual-intent position within immigration law, reflected in regulation and Department of State guidance.

Indeed, 8 C.F.R. Section 214.2(o)(13) expressly states that the approval of a permanent labor certification or the filing of an immigrant preference petition “shall not be a basis” for denying O-1 classification or admission. The regulation also recognizes that an O-1 beneficiary may lawfully enter the United States on a temporary basis while simultaneously seeking permanent residence. Likewise, 9 FAM 402.13-5(B) confirms that the approval of a permanent labor certification or the filing of a preference petition, standing alone, should not support denial of O-1 classification. The same principle applies to O-3 visa applicants. O-2 classification, however, is treated differently, as O-2 applicants generally must show a residence abroad that they do not intend to abandon.

This raises a frequently misunderstood question. If an O-1 beneficiary may lawfully pursue permanent residence, need not maintain a foreign residence that they do not intend to abandon, and may still qualify for O-1 classification, what then supports a refusal under INA Section 214(b)?

Although the O-1 category permits substantial flexibility regarding immigrant intent, temporary intent remains essential. The governing regulations contemplate that an O-1 beneficiary may lawfully pursue permanent residence while simultaneously intending to remain in the United States only for the temporary period authorized under O-1 classification. Accordingly, the inquiry in an O-1 case may shift toward whether the applicant genuinely intends to enter the United States for the approved temporary engagement and has otherwise established entitlement to O-1 nonimmigrant classification.

As part of the inquiry of whether the applicant has established entitlement to the O-1 nonimmigrant classification, a consular officer may evaluate issues extending beyond traditional immigrant-intent concerns. These may include: whether the applicant sufficiently understands the proposed work or engagement; whether interview responses align with the approved petition and DS-160; whether the petitioner relationship and proposed employment arrangement are sufficiently clear and consistent with the petition; whether the proposed itinerary is consistent with the petition; whether the applicant has adequately established temporary intent consistent with O-1 classification; and whether the applicant has sufficiently established qualification for the requested nonimmigrant classification. This distinction is important because Department of State guidance makes clear that INA Section 214(b) is not limited solely to immigrant-intent concerns. A refusal may also result where an applicant has not sufficiently established qualification for the requested nonimmigrant classification. INA Section 214(b) can also conveniently be used to deny the visa when it may be more cumbersome to deny the visa on criminal inadmissibility or security grounds

For applicants and attorneys alike, preparation for the visa interview remains critical. Beneficiaries should be prepared to clearly explain the proposed engagement or employment, understand the petitioner and the nature of the professional relationship, maintain consistency between the petition, DS-160, and interview responses, and explain the temporary nature of the approved stay while thoughtfully addressing questions concerning future immigration plans.

At the same time, visa adjudications are highly discretionary and often conducted under significant time constraints. In some circumstances, questions may arise regarding documentation, petition details, or an applicant’s explanation of the proposed engagement. Department of State guidance separately contemplates referral of approved O petitions to USCIS for reconsideration where concerns exist regarding the continuing validity of the approved petition itself. Likewise, certain cases may warrant additional administrative review or submission of further documentation before a final determination is reached. This raises an important practical distinction between concerns relating to an applicant’s present eligibility for visa issuance and concerns regarding the underlying basis of the approved O-1 petition itself.

Importantly, a refusal under INA Section 214(b) is not necessarily the end of the road. Applicants may reapply for an O-1 visa and, where appropriate, address the concerns that may have contributed to the refusal. Where a refusal appears to rest solely on the applicant’s supposed inability to overcome the presumption of immigrant intent – for example, if the officer focused heavily on “ties” to the home country – a reasonable argument can be made that the officer misapplied the O-1 framework, which does not require an unabandoned foreign residence. In such cases, the applicant may consider seeking an advisory opinion from the State Department’s Visa Office. By contrast, where the refusal is grounded in a conclusion that the applicant has not established entitlement to O-1 status itself, it may be more difficult to obtain an advisory opinion because such requests are generally considered only when the dispute is over the legal standard, not the underlying facts of eligibility. In practice, advisory-opinion requests through LegalNet are usually framed by counsel, highlight a clear legal misinterpretation, and seek clarification rather than a reconsideration of factual determinations. Unfortunately, the doctrine of consular non-reviewability would preclude judicial review of a Section 214(b) denial.

Ultimately, approval of an O-1 petition is highly significant, but it does not end the inquiry. Visa issuance remains a distinct adjudicative process. Understanding the nuanced interaction between INA Section 214(b), temporary intent, and O-1’s unique flexibility regarding immigrant intent remains essential to effective preparation and successful visa processing. Anecdotal evidence suggests that there have been a spate of recent § 214(b) denials, many of which are unwarranted. Although this blog has focused on O-1 refusals under INA § 214(b), similar analytical issues can arise in other nonimmigrant visas that enjoy quasi-dual intent – such as E, R, and P visas – where there must still be an intent to depart the United States at the end of the authorized stay, even if long-term or permanent immigration plans are also being pursued.

*Manjeeta Chowdhary is an Associate at Cyrus D. Mehta & Partners PLLC.

Deportation Judges

June 13, 2026/0 Comments/in Blog/by Prof. Stacy Caplow

By Prof. Stacy Caplow, Brooklyn Law School^[1]

Do you want to be a judge? Hurry up to apply—the deadline is July 17, 2026. Look no further than this ad which says:

“Help write the next chapter of America. Apply today to become a deportation judge. Define America for Generations.”^[2]

The Trump administration is remaking the Immigration Court in its own image springing into a hiring frenzy following the rapid-fire depletion of more than 100 experienced Immigration Judges.^[3] Between February 2025 and May 2026, this aggressive recruitment effort netted 134 new full time and 22 temporary IJs.^[4] The general qualifications of the individuals who heeded this call surprised no one: Their numbers overwhelmingly included immigration enforcement lawyers, prior prosecutors and veteran or active military officers. A mere three new IJs had any obvious experience representing immigrants, and even those career interludes were brief and in the past.

Another troubling revelation was how many individuals appointed to this stressful, high volume, complex job lacked any apparent prior knowledge of or experience in immigration law. In addition to this minimal level of relevant substantive experience, a significant number had received JD degrees within the past 15 years and a few even had earned that degree in less that the supposedly requisite seven years. Adding insult to injury, the EOIR reduced their training from six weeks^[5] so that some new judges were presiding over merits hearings only a few weeks after being sworn in.^[6]

These preferences should surprise no one who has paid attention to the goals of this administration to reduce, if not eliminate, grants of relief such as asylum or cancellation of removal, to reduce decades of due process guarantees by ordering removal without an evidentiary hearing, and to deter judicial independence with the threat of firing. By all reports, the restaffing of the immigration court has achieved these goals. resulted in higher rates of denials in asylum cases. Over the last twelve months, the Immigration Court asylum grant rate has plummeted.^[7]

The posted job qualifications are very broad yet do not prioritize or even specify any prior knowledge of or experience in immigration law and practice in addition to the minimum requirements of a law degree and law license.^[8] The remaining preferred prior experience includes litigating criminal cases, including in the military, or conducting administrative hearings. It is not unexpected, therefore, that a great number of the new IJs have government enforcement, military, and/or prosecution backgrounds. Many have a combination of some or all of these credentials.

Despite this rapid-fire hiring binge, the credentials of these newly appointed IJs actually hew pretty closely those IJs appointed during the first Trump administration. Once again, large numbers of IJs are drawn from the ranks of government employees. They come from enforcement offices, particularly ICE Office of the Principal Legal Advisor, as well as USCIS and EOIR. Similar numbers of IJs have military and prosecution backgrounds, or both. The number of new judges with past judicial experience is comparable also.

Credential

2017-2020^[9]

2025-2026^[10]

Gov’t Immigration Enforcement Background

46%

42%

Military Background

22%

31%

Prosecution Background

51%

40.2%

Judicial Background

17%

13.4%

Government Employment Background

Former Government-Side Immigration Lawyers

Immigration Gov’t Enforcement Background

Forty-two percent, 54/134, new IJs have at one time practiced with the ICE’s Office of the Principal Legal Advisor (OPLA), the Immigration Court prosecutors, worked for USCIS as asylum officers or legal counsel or have been lawyers at EOIR. This number closely tracks the forty-six percent of the IJs appointed during the first Trump administration who also had this background. These credentials are not prima facie objectionable since this background reflects a deeper understanding of immigration law and court practice, but a one-sided career may produce judgment distortion and possibly affect objectivity. In addition, the many edicts issued by EOIR that subvert transparent fact-finding processes of immigration court hearings by granting pretermission with a hearing,^[11] restricting online access to observers,^[12]creating “mega/mass master calendar hearings^[13]are designed to diminish the individual discretion and decisional autonomy of IJs. Given past loyalties to these enforcement institutions, and the chilling track record of terminations without any stated cause, IJs, especially the new appointees, likely rightly fear for their jobs if they deviate from these dictates. Independence is undermined by both the selection process and the oversight of EOIR.

Military and Prosecution Background

Again, these credentials have always been well represented on the Immigration Court bench. Often the IJ has both credentials on their resume. Many of the former government lawyers also combine past military and prosecutorial backgrounds.

Thirty-one percent, 42/134, of the new IJs have been or are currently service members. This number represent a significant increase likely due to the controversial reassignment of JAG lawyers to the immigration bench.^[14]

Military Background

Former prosecutors also proliferate the new ranks of IJs. Forty-two percent, 54/134 have been former prosecutors in either state or federal offices. This is likely an undercount since some EOIR biographies refer to general positions with a “State’s Attorney” or US Attorney’s Office and do not specify civil or criminal divisions. Unless this distinction was clear, that individual was not counted as a former prosecutor.

Prosecution Background

Government lawyer backgrounds do not conclusively create anti-immigrant bias, but for someone who has worked almost exclusively in an authoritarian workplace routinely opposing various forms of relief, beholden to orders and policies that might undercut or eschew discretion and open-mindedness, and be subject to discipline for perceived deviations, judicial independence may be difficult to imagine or achieve.

Indeed, the very title Deportation Judge and the language used in the job announcement encourage a perception of the position as enforcement and anti-immigrant. For example, the ad describes the job as “Ensur[ing] adherence to the law; combat[ing] fraud and ensur[ing] those seeking to exploit vulnerabilities in our immigration system are not successful,” implying that the system is riddled with bad actors who need to be ferreted out and deported. There is no message of the benefits or humanitarian role of the Department of Homeland Security other that a reference to deciding “who gets to stay.”

Judicial Experience

Prior judicial experience is unquestionably a plus for any adjudication setting, even the unique immigration court.^[15] Slightly more than 13% (18/134) of the new IJa worked either full or part-time in local administrative courts although none had any immigration focus and often were tribunals for state agencies dealing with commercial, family or health matters. A few had been judicial law clerks. But as is so often pointed out, the law, especially in these unstable times, is complex, the decisions in immigration court are life-altering and almost always require an exercise of discretion.^[16] The evaluation and application of discretionary factors is a sensitive and quite subjective process that relies on well-developed tools of evaluation and judgment in often highly fact-sensitive cases. While some prior adjudicators may have developed solid judgment in their respective realms, immigration, with its potentially drastic consequences, poses different. Balancing. Judicial temperament and administrative skills may not be sufficient to assure fair and just outcomes.

Judicial Experience

Prior Immigration Law/Practice Experience

Typically, many IJs come to the bench with immigration law practice experience, most often as ICE Trial Attorneys. As such, they are, or should be, familiar with the proceedings and the applicable legal principles. Nevertheless, more than 50% of new IJs (67/134) lack any obvious, perceivable immigration law background. Again, this complete lack of relevant knowledge of this complex legal regime, combined with hasty, shallow training in substantive law, contradicts the usual qualifications for a judge in a specialized practice area. Thrown into presiding over full hearings or applying the swiftly evolving new case law from the BIA as well as the policy dictates of EOIR, these judges have a recklessly steep learning curve. As they are learning, they have to decide life-or-death claims.

Since these newly appointed judges are refilling the ranks of more, and in many cases much more, experienced IJs, their appointments are not equivalencies for the judges they are replacing.

No Obvious Immigration Law Experience

Age and General Legal Experience

The 2026 appointments present a “goldilocks” problem since many judges are very early in their careers while many are very late in their careers. Considering the pressures of the immigration bench, the extent and depth of knowledge needed, and the maturity and temperament to run a courtroom with patience, dignity and respect, this job requires experience.

The stated amount of post-licensing experience is frighteningly undemanding: seven years of any post-bar admission experience.^[17] Although most of the newly named IJs do have more than the bare minimum years of experience, 35 of them have been admitted for less than 15 years. It is difficult to imagine that the 35 individuals who graduated from law school with 15 years or less before taking the bench possess the maturity and disposition necessary for this challenging job. Six of the 35 new IJs graduated after 2016 and one the graduated only in 2018.

Years Since JD

At the other end of the spectrum are the considerable number of new IJs who are older than 60. Assuming they received their undergraduate degrees at age 22 in the 1970s or 1980s, 25 judges are in their 60s or even 70s. Most jurisdictions require judges to retire or take senior status by age 70 although there does not seem to be a mandatory retirement age in EOIR. While these new IJs have had longer, and in some cases more responsible, careers, none of them specialized in immigration law. It is difficult to imagine that they will serve for many years on the immigration bench. Given the time necessary to reach full capacity and mastery, investing in senior IJs may not be an efficient use of resources.

Senior Age

Immigrant Advocacy Backgrounds

Hiring

One of the key differences between the Trump 1.0 and 2.0 appointments and those IJs appointed by Biden is the greater diversity of the Biden judges. Early in 2021, the number of IJs appointed by Biden who had a background as immigrant advocates jumped noticeably. In the first year of his administration, 19.4% of Biden’s new IJs had worked for most, if not all, of their careers at nonprofits or private immigration firms. This contrasts to the 10-11 appointed during the full four years of Trump 1.0. Only three of the biographies of the 2026 appointed noted any immigrant advocacy work experience, and even that occurred during the early years of their careers.

Firing

The Biden administration explicitly valued diversity and inclusion by inviting applicants “from all backgrounds to join our corps of dedicated adjudicators.”^[18] The inescapable impression created by the 100+ purge was that EOIR targeted Biden appointees since all but 15 of them had appointed after 2021. They also consisted of more liberal IJs with higher grant rates many of whom were women, came from identifiable ethnic backgrounds, had immigrant advocacy careers, and/or were recognized as Democrats. Most were summarily fired without explanation. Others were fired after issuing decisions that the administration disliked^.^[19]

Some terminated IJs are fighting back. For example, in Irma Pérez v. Todd Blanche, et al.,^[20]the complaint alleges sex and age discrimination as well as a civil rights violation. Her complaint identifies by name 37 women judges who were fired, seven judges with Spanish surnames, and 4 judges with South Asian or Middle Eastern surnames. Other discrimination lawsuits have been filed in the District of Columbia,^[21] Massachusetts,^[22] Illinois,^[23] and California^[24] advancing similar allegations and facts. An earlier lawsuit challenging the terminations was unsuccessful before the Merit Systems Protection Board so the IJs have turned to the federal courts.^[25]

Conclusion

Immigration Court watchers do not need to be told that the bench has been radically transformed over the past 18 months. Of course, it is dangerous to over-generalize but it is easy to see that the demographics tilt inescapably in favor of people whose backgrounds and experiences imply a sympathy with this administration’s goals. The job description attracts people with identifiable political and ideological beliefs. Diversity and inclusion are not hiring goals. Once appointed, the new judges are going along with the program: terminating applications thus opening the doors for detention and removal; ordering removals to third countries pursuant to Asylum Cooperative Agreements; denying relief in record numbers. Judges whose decisions defy the administration lose their jobs.

Immigration Court has always been a treacherous place to navigate especially for the unrepresented. Today, its hallways and courtrooms are locations of both legal and physical risk, not only to the individuals appearing there but to lawyers and court observers.^[26] Under the thumb of overbearing ideologues, IJs can no longer be counted on to exercise independent, unbiased judgment or to protect the rights of immigrants.

[1] Guest author Prof Stacy Caplow is a leader in the field of clinical legal education. For more than ten years, Prof. Caplow was the law school’s first dean overseeing all aspects of clinical and experiential education. Read her full biography at https://www.brooklaw.edu/contact-us/caplow-stacy/

[2] See https://join.justice.gov/.

[3] The National Association of Immigration Judges (NAIJ) has been collecting information about fired judges. This anonymous list notes that 103 judges lost their jobs. The list does not separate IJs who may have retired but all but 15 were appointed after 2021 so it’s doubtful that any of them left voluntarily, List on file with author.

[4] EOIR Notice May 21, 2026: 77 new judges, https://www.justice.gov/opa/media/1441861/dl; April 8, 2026: 15 new judges, https://www.justice.gov/eoir/media/1435381/dl?inline ; March 11, 2026: 42 new judges, https://www.justice.gov/eoir/media/1430876/dl?inline. In order to facilitate hiring temporary IJs, EOIR promulgated new regulations at 8 CFR §1003.10 that eliminated the level of experience for this position. Formerly, it was restricted to individuals who had either been immigration adjudicators or experienced government attorneys. The new rule mirrors the more lenient requirements for full IJs but limits the term of service. 90 F.R. 41883, Aug. 28, 2025, https://www.govinfo.gov/content/pkg/FR-2025-08-28/pdf/2025-16573.pdf.

[5] Fact Sheet, Executive Office for Immigration Review Immigration Judge Training, https://www.justice.gov/eoir/page/file/1513996/dl?inline

[6] Celine Castronuovo, Trump Immigration Judges Pushed to Deny Asylum in Swift Training, Bloomberg Law, Feb. 4, 2026, https://news.bloomberglaw.com/us-law-week/trump-immigration-judges-pushed-to-deny-asylum-in-swift-training.

[7] Austin Kocher, The Asylum Denial Machine, June 19, 2025, https://austinkocher.substack.com/p/the-asylum-denial-machine ; TRAC Immigration, Immigration Court Asylum Grant Rates Cut in Half, https://tracreports.org/reports/766/ (During August 2025, only 19.2 percent of asylum seekers were granted asylum). A year earlier during August 2024, the grant rate was 38.2 percent).

[8] Applicants must possess qualifying post-licensure litigation or adjudication experience.

Qualifying trial experience includes experience litigating cases in which a complaint was filed with a court or administrative agency, or a charging document (e.g., indictment, notice of violation, or information) was issued by a court, administrative entity, grand jury, or appropriate military authority. Qualifying experience conducting administrative hearings or adjudicating administrative cases includes relevant experience handling cases in which a formal procedure was initiated by a governmental administrative body.

https://www.usajobs.gov/job/853385500

[9] The percentages for the first Trump administration are drawn from Stacy Caplow, The Sinking Immigration Court: Change Course, Save the Ship, 4 A.I.L.A. L.J, 39, 46-50 (2022). In turn, these numbers derive from the various EOIR announcement of new appointments during that time period.

[10] The percentages are drawn from the EOIR Notices, supra n. 3.

[11] Pretermission of Legally Insufficient Applications for Asylum, PM 25-28, Effective: April 11, 2025

[12] Fact Sheet, Observing Immigration Court Hearings, Nov. 2025.

[13] Trump Administration Short Circuits Due Process with New Mass Hearings for Unrepresented Immigrants, Nat’l Immig. Justice Ctr., May 29, 2026.

[14] Memorandum Opinion for the General Counsel Department Of War, Detailing Attorneys to the Department of Justice to Serve as Immigration Judges and Special Assistant United States Attorneys, Oct. 23, 2025 (“The Department of War may detail attorneys to serve as immigration judges on a reimbursable basis.”); Ximena Bustillo , Military lawyers called up to relieve a shortfall in immigration judges, NPR, Sept. 2, 2025; N.Y.C. Bar Ass’n, Report By The Immigration & Nationality Law Committee and the Rule Of Law Task Force Condemning the Use of Military Lawyers as Temporary Immigration Judges, Jan 15, 2026.

[15] See supra note 6.

[16] The famous describes immigration court a deciding “death penalty cases in a traffic court setting.” IJ Dana Marks provided this unforgettable description on an episode of Last Week with John Oliver.

[17] EOIR, How to Become an Immigration Judge, https://www.justice.gov/eoir/how-become-immigration-judge.

[18] Notice, EOIR Announces 24 New Immigration Judges, Oct. 27, 2021, https://www.justice.gov/d9/pages/attachments/2023/05/30/eoir_announces_24_new_immigration_judges_10272021.pdf. In this small but representative batch, 50% of the new IJs had worked at some point as immigrant advocates either for NGOs or in private practice.

[19] Hamed Aleaziz, Nicholas Nehamas and Steven Rich , Judges Fired After Blocking Deportations of Pro-Palestinian Students, NY Times, Apr. 11, 2026; Joshua Goodman, Military Lawyerr Swiftly Fired From Immigration Bench After Defying Trump Deportation Push, AP, Dec. 19, 2025.

[20] 2:26-cv-06173 (C.D. Cal , 2026), https://www.law360.com/articles/2487026?sidebar=true. See also, Celine Castronuovo and Megan Crepeau, Fired Immigration Judges Test Trump’s Executive Power in Suits, Bloomberg News, June 10, 2026, https://news.bloomberglaw.com/us-law-week/fired-immigration-judges-test-trumps-executive-power-in-suits ;

[21] Nemer v. Bondi, 1:25-cv-04170, (D.D.C.); Former Immigration Judge files lawsuit accusing Trump administration of bias in her firing, NBC News, Dec. 2, 2025

[22] Simon Rios, Fired Mass. immigration judge sues Trump administration to get his job back, WBUR, May 18, 2026, https://www.wbur.org/news/2026/05/18/massachusetts-george-pappas-chelmsford-boston-judge-sues-trump.

[23] Espinoza v. Blanche, 1:26-cv-05157 (N.D. Ill., May 5, 2026).

[24] Lilien v. Blanche, No. 3:26-cv-03965 (N.D. Cal.); Chamberlin v. Blanche, 3:26-cv-04390 (May 12, 2026); Luz Pena, Fired Bay Area Immigration Judge sues DOJ alleging discrimination over gender, age and political views, May 7, 2026, https://abc7news.com/post/fired-bay-area-immigration-judge-sues-doj-alleging-discrimination-gender-age-political-views/19054420/.

[25]Jackler and Jarosh v. Dep’t of Justice, MSPB Docket No. DA-0752-25-0330-I-1, Mar. 20, 2026

[26] Victoria Bekiemkis, Brad Lander found not guilty of blocking elevator at New York ICE facility, The Guardian, June 11, 2026, https://www.theguardian.com/us-news/2026/jun/11/brad-lander-not-guilty-blocking-elevator-new-york-ice.

Federal Court Strikes Down Trump’s $100,000 H‑1B Fee: INA § 212(f) Is Not a Taxing Power

June 9, 2026/0 Comments/in Blog/by Cyrus Mehta

By Cyrus Mehta, Damira Zhanatova and Kaitlyn Box

On Monday, June 8, 2026, a Massachusetts federal judge delivered a major decision for employers who rely on the H‑1B program. In State of California et al. v. Markwayne Mullin et al., U.S. District Judge Leo T. Sorokin ruled that President Donald Trump’s $100,000 payment requirement on new H‑1B visas is a tax that Congress never authorized the President to impose. He declared the fee unlawful and vacated it in its entirety.

The lawsuit, brought by 20 Democratic state attorneys general, challenged a September 2025 Proclamation that announced an additional $100,000 “supplemental payment” for each new H‑1B petition, dramatically increasing the cost of sponsoring highly skilled foreign workers. Judge Sorokin rejected the government’s central argument that the President’s broad authority under INA § 212(f) to “impose on the entry of aliens any restrictions he may deem to be appropriate” provided legal support for the payment. The court concluded that Congress did not confer taxing power on the President through the Immigration and Nationality Act. As Judge Sorokin wrote, “The court finds that the policy imposes a tax on H‑1B petitions without the requisite delegation by Congress.”

This district court decision is a major victory for H‑1B employers and a sharp reminder that presidential power under INA § 212(f) has real limits although it has been endorsed by the Supreme Court in Trump v. Hawaii to restrict the entry of nationals of certain countries. The court rejected the Trump Administration’s attempt to use § 212(f) to impose a flat $100,000 “supplemental payment” on every new H‑1B petition. In the court’s view, the payment is a tax, the INA does not clearly delegate taxing authority to the President, the implementing Policy violates the Administrative Procedure Act (APA), and the Policy is therefore vacated nationwide.

The court’s core holding is that § 212(f) is not a blank check to tax H‑1B petitions. The government leaned heavily on the phrase “any restrictions he may deem to be appropriate,” arguing that this language is as broad as the tariff authority the Supreme Court upheld in Algonquin under Section 232 of the Trade Expansion Act. The court, however, relies on the Supreme Court’s more recent Learning Resources decision, which sharply narrows how far Algonquin can be pushed.

In Learning Resources, the Supreme Court contrasted Section 232 with the International Emergency Economic Powers Act (IEEPA). Section 232(b) authorizes the President to “adjust imports” and to “take such action . . . as he deems necessary” to do so, in a statutory setting that explicitly references “duties” and “import restrictions.” That context made it natural to read Section 232 as including tariff authority. IEEPA, by contrast, only allows the President to “regulate” imports, omits the “such action as he deems necessary” language, and contains no mention of duties or tariffs. The Supreme Court therefore refused to treat IEEPA’s general regulatory grant as a delegation of tariff or taxing power.

Applying that same framework to the INA, Judge Sorokin notes that §§ 212(f) and 215(a) let the President suspend or restrict entry and prescribe “reasonable rules, regulations, and orders” and “limitations and exceptions” governing entry, but they never mention duties, taxes, or any other revenue‑raising fees. Even though § 212(f) appears broad in isolation, it lacks the specific, duty‑focused context that justified Algonquin’s limited reading of Section 232. Learning Resources underscores that the Supreme Court has long been reluctant to read extraordinary delegations of Congress’s core powers into ambiguous text, especially where the “power of the purse” is involved. Taxing authority, the Court has said, is “core to Congress,” and Judge Sorokin finds nothing in the INA that clearly hands that power to the President.

In his opinion, he emphasizes that the Supreme Court has “long expressed reluctance to read into ambiguous statutory text extraordinary delegations of Congress’s powers,” and that “separation of powers principles and a practical understanding of legislative intent suggest Congress would not have delegated highly consequential power through ambiguous language.” Those principles, he explains, “apply with particular force where, as here, the purported delegation involves the core congressional power of the purse.” The opinion also notes that the government itself conceded that the taxing power is “core to Congress.” Against that backdrop, Judge Sorokin concludes that these considerations “preclude reading INA §§ 212(f) and 215(a) as delegating Congress’s exclusive power to tax.”

That reasoning closely tracks what we identified in our prior blog as a form of the major questions doctrine at work in the immigration context. Without using the label “major questions,” Judge Sorokin applies the same basic logic. The court treats the imposition of a massive, program‑wide $100,000 charge as a “highly consequential power” that Congress would not have handed to the Executive through vague references to “restrictions” on entry. In his view, a de facto tax of that magnitude – one that would fundamentally reshape the cost structure of a central employment‑based visa category – is a decision of great economic and political significance. In that situation, generalized language about “restrictions” on entry is not enough. When the Executive claims authority to take such a consequential step, courts will look for, and insist on, a clear statement from Congress. The major questions doctrine, discussed at length in Learning Resources, and addressed in our prior blog, has implicitly been acknowledged in this recent decision. The Supreme Court’s tariffs decision in Learning Resources influenced the court in California v Mullane in finding Trump’s $100,000 fee unlawful, and although this court did not state so explicitly, under the major questions doctrine where executive actions have major economic or political significance there has to be explicit Congressional authorization, and here there was none notwithstanding the broad authority given to the President under INA 212(f) in determining the entry of noncitizens into the US.

The government tried to recast the $100,000 payment as an incident of the President’s immigration or commerce powers, invoking nineteenth‑century state head‑tax cases (Smith v. Turner and Henderson v. Mayor of New York) and Merrion v. Jicarilla Apache Tribe. The court is not persuaded. Smith and Henderson were about state taxes on arriving foreign passengers and the boundary between state and federal power over foreign commerce. They did not suggest that a tax on entry is purely a commerce regulation or that delegating commerce powers to the Executive silently includes taxing authority. Merrion, in turn, addressed the inherent sovereign power of a tribe to tax on its own reservation. Tribal taxing power does not derive from the U.S. Constitution, whereas the President has no inherent authority to raise revenue at all. That power lies exclusively with Congress under Article I, Section 8. In Skinner, the Supreme Court held that Congress must clearly indicate any intent to delegate taxing power to the Executive. The court sees no such clear indication in the INA, so these lines of cases do not rescue the Proclamation.

The government also argued that the $100,000 payment is simply a “restriction on entry” authorized by § 212(f). The court confronts that argument directly. Textually, § 212(f) speaks of “restrictions.” In ordinary usage, a tax is not a “restriction” on entry. It is a fiscal measure. Congress did not say “any tax, penalty, or condition” but instead chose narrower language. Structurally, the government’s reading would leave “no perceivable limits” on presidential power. On that view, the President could demand a percentage of a company’s equity as a condition for obtaining an H‑1B, require a U.S. citizen sponsoring a spouse to surrender half her assets, or even try to impose incarceration as a “condition” on sponsoring a relative. Government counsel conceded at argument that incarceration would collide with other constitutional protections, but that only underscores how far the asserted reading strays from statutory text and congressional intent. The court’s hypotheticals make this part of the opinion particularly valuable for future litigation, because they show in concrete terms why § 212(f) cannot be converted into an all‑purpose tool for extracting economic value from U.S. sponsors or re‑engineering large parts of the immigration system.

Once the court concludes that the $100,000 payment is an unauthorized tax, its APA analysis follows logically. The government tried to insulate the Policy from APA review by describing it as a mere “extension of the President’s action.” The court adopts what is becoming the prevailing rule: agency actions taken to implement a presidential directive are subject to APA review unless the underlying authority has been committed by Congress to the sole discretion of the President. The authority to tax H‑1B petitions was never delegated to the President at all, much less committed to his exclusive discretion, so DHS and State cannot shelter behind the Proclamation.

The court finds that the memoranda, FAQs, updated webpages, revised H-1B fee schedule, and online payment system collectively amount to “final agency action” under Bennett v. Spear. They marked the consummation of the agencies’ decision making and immediately changed the legal obligations of H-1B petitioners by making payment of $100,000 a prerequisite for approval.

On the APA’s procedural requirements, the court holds that the Policy is a legislative rule adopted without notice‑and‑comment. Because the President lacked statutory authority to tax H‑1Bs, his Proclamation did not itself have the force of law. It was the agency materials that created rights, assigned duties, and imposed obligations. That makes them legislative rules subject to § 553. The court rejects the argument that agencies were compelled to follow the Proclamation: agencies are not obligated to comply with unconstitutional or ultra vires directives, and they cannot use such directives as a shortcut around APA rulemaking. Nor can the foreign‑affairs or good‑cause exceptions save the Policy. The government identified no “definitely undesirable international consequences” that would have flowed from using notice‑and‑comment, and it pointed to no emergency threatening life, property, or public safety that would meet the high bar for good cause. The agencies did not contemporaneously invoke good cause in their documents. The court also refuses to treat the violation as harmless, because notice‑and‑comment might have affected the substance of the policy or forced serious consideration of its impact on state employers and cap‑exempt institutions.

On the substantive side of the APA, the court translates its separation‑of‑powers discussion into an “excess of statutory authority” holding. Agencies literally have no power to act unless Congress has conferred it. No INA provision authorizes DHS or State to impose a $100,000 tax on H‑1B petitions. Section 1356(m) is limited to cost‑recovery adjudication fees, and by the government’s own admission, the Proclamation does not impose a fee to cover costs, does not displace existing fees, and is not collected or used like other adjudication fees. Because §§ 212(f) and 215(a) also do not confer taxing power, there is simply no statutory hook for the Policy. As a result, it is “in excess of statutory jurisdiction, authority, or limitations” under 5 U.S.C. § 706(2)(C).

The court further finds that the Policy is arbitrary and capricious. The agencies offered only thin, high‑level rhetoric about addressing “systemic abuse” of H‑1B visas and protecting American workers, with no reasoned explanation of why a flat $100,000 tax is a rational or tailored response. They failed to identify or assess reliance interests, despite the obvious reality that state schools, hospitals, and universities had built long‑term staffing models around the existing H‑1B cost structure, particularly for cap‑exempt roles. The record shows no consideration of alternatives, such as lower amounts, exemptions or discounts for public or cap‑exempt employers, or less disruptive tools targeted at specific abuses. There is also a stark sector mismatch: the Proclamation’s rationale is aimed at STEM and IT sectors and private tech firms, but the Policy applies equally to human‑services sectors like education and healthcare without any sector‑specific analysis or justification. Finally, the court rejects the argument that agencies cannot be arbitrary when they are merely following a presidential directive. The directive itself was not lawful, and even under a lawful directive, agencies must implement it “to the extent permitted by law,” which includes satisfying APA reasoned‑decisionmaking requirements.

On remedy, the court emphasizes that the APA’s instruction to “set aside” unlawful agency action has long been understood to authorize vacatur. It distinguishes vacatur from injunctions: an injunction is directed at particular parties, while vacatur operates on the rule or policy itself, nullifying the government’s authority to act under it. The court sees no need to limit relief to the plaintiffs and rejects res judicata arguments based on overlapping membership with parties in other cases, noting that mere association membership does not create the kind of privity needed for claim preclusion. It issues a declaratory judgment that the Policy is unlawful and vacates it in its entirety, concluding that a separate permanent injunction is unnecessary so long as vacatur is available.

For immigration practitioners and H‑1B employers, the immediate effect is straightforward. Agencies may not condition H‑1B approval on payment of the vacated $100,000 charge. H‑1B costs are again limited to the statutory charges Congress has enacted and to cost‑recovery adjudication fees lawfully set by DHS under § 1356(m). The decision also sends a broader signal about executive power in immigration. It marks a strong limit on § 212(f), making clear that “restrictions on entry” cannot be used to impose taxes, confiscate equity, or extract other unrelated economic concessions from U.S. sponsors. It reinforces a clear‑statement rule for taxation: if the Executive wants to tie immigration benefits to revenue‑raising exactions, it must point to explicit statutory authority and comply with APA procedures and reasoned‑decision making standards.

The ruling also provides a template for litigation strategy. It shows how to challenge executive actions that blur the line between regulating entry and raising revenue, particularly when they are implemented via FAQs, web postings, and internal memoranda rather than formal rulemaking. The court’s hypotheticals and its reliance on Learning Resources offer useful language to resist over‑broad readings of § 212(f) that would erode the INA’s structure.

Practitioners should adjust current H‑1B counseling and filings to reflect that no $100,000 “supplemental payment” may be imposed under this vacated Policy. It is prudent to monitor closely for any new attempts, whether by rulemaking or new proclamation or through the government appealing the decision, to alter the H‑1B fee structure, and to scrutinize those efforts for a clear statutory basis and APA compliance. For clients who hesitated to file H‑1Bs because of the proposed charge, counsel can now revisit those decisions and, where appropriate, move forward under the restored statutory framework, while keeping an eye on potential appeals or replacement policies that might test these same legal boundaries in new ways.

Dorcas v. USCIS: Federal Court Reaffirms That USCIS Must Adjudicate, Not Stonewall, Immigration Benefits

June 5, 2026/0 Comments/in Blog/by Cyrus D. Mehta & Damira Zhanatova

By Cyrus D. Mehta and Damira Zhanatova∗

In Dorcas International Institute of Rhode Island v. USCIS, No. 26‑cv‑132‑JJM‑PAS, Chief Judge John J. McConnell Jr. held that USCIS’s Trump‑era “Travel Ban Countries” policies violated both the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA). He found that the agency had thrown “the lives of countless immigrants living in the United States into indeterminate legal limbo” by placing an indefinite pause on the adjudication of immigration benefit requests for individuals from 39 African, Asian, Latin American, and Middle Eastern countries (“Travel Ban Countries”) and by re‑opening already approved benefits, based solely on applicants’ countries of birth. Each of the four policies at issue was declared unlawful, vacated, and set aside.

The plaintiffs were a coalition of nonprofits and unions: Dorcas International Institute of Rhode Island and Refugee Dream Center in Providence, SEIU, UAW, African Communities Together, the Venezuelan Association of Massachusetts, the Partnership for the Advancement of New Americans, and American Gateways. They represent thousands of noncitizens from Afghanistan, Iran, Nigeria, Somalia, Sudan, Syria, Venezuela, and other Travel Ban Countries whose asylum, adjustment, work authorization, visa, and naturalization applications were frozen or sent into re‑review solely based on nationality and date of entry. Judge McConnell noted that these immigrants followed all required legal processes – filing applications, paying fees, giving biometrics, and appearing for interviews – yet USCIS “refuses to adjudicate” their cases, and he concluded that “the rule of law has to apply to everyone equally” and that USCIS has neither “followed the law” nor “done things the right way.”

The court’s opinion carefully reconstructs how the policies arose. On the first day of his second term, the President issued Executive Order 14161, directing enhanced vetting and screening of “all aliens who intend to be admitted, enter, or are already inside the United States, particularly those aliens coming from regions or nations with identified security risks.” The order instructed senior officials to submit a report identifying countries whose vetting and information‑sharing were so deficient that entry of their nationals should be partially or fully suspended under INA § 212(f), 8 U.S.C. § 1182(f).

Based on that report, the President issued Proclamation 10949, restricting entry of nationals from 19 countries deemed “deficient with regards to screening and vetting,” and later Proclamation 10998, expanding the Travel Ban list to 39 countries and certain Palestinian Authority travel documents. These presidential actions were explicitly grounded in § 212(f) and related statutes and focused on entry at the border. They did not address, much less mandate, any change to domestic processing of asylum, adjustment, work authorization, or naturalization applications for people already inside the United States.

Two high‑profile security incidents involving Afghan nationals then became the catalysts for a radical shift in USCIS policy. In June 2025, Nasir Ahmad Tawhedi pled guilty to conspiring and attempting to provide material support to ISIS in connection with a 2024 Election Day attack plot. In November 2025, Rahmanullah Lakanwal allegedly shot two National Guard members in Washington, D.C., killing one and critically injuring another, which DHS publicly characterized as a terrorist attack.

Immediately after the D.C. shooting, the President and then–DHS Secretary Kristi Noem issued inflammatory public statements about immigrants. The President described the “foreign population” as “most of which are on welfare, from failed nations, or from prisons, mental institutions, gangs, or drug cartels,” and blamed immigrants for “failed schools, high crime, urban decay, overcrowded hospitals, housing shortages, and large deficits.” Secretary Noem declared that she had recommended “a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies,” calling immigrants “foreign invaders” who “slaughter our heroes, suck dry our hard-earned tax dollars, or snatch the benefits owed to AMERICANS,” and concluding: “WE DON’T WANT THEM. NOT ONE.” Days later, the President referred at a rally to a “permanent pause on Third World migration, including from hellholes like Afghanistan, Haiti, Somalia, and many other countries,” and repeated his earlier remark wondering why the U.S. admitted people from “shithole countries” instead of places like Norway and Sweden. Judge McConnell recounted these statements in detail and later found them probative of anti‑immigrant animus behind the policies.

Against this political and rhetorical backdrop, USCIS enacted the four Challenged Policies through formal memoranda and Policy Manual revisions.

First, the Global Asylum Hold Policy. In PM‑602‑0192 (the “December Memorandum”), USCIS ordered a hold on “all applications for asylum and withholding of removal, regardless of the applicant’s country of nationality,” pending a “comprehensive review.” The memo explicitly stated that this “hold will remain in effect until lifted by the USCIS Director through a subsequent memorandum.” While USCIS later announced on its website that asylum processing had resumed for “non high‑risk countries,” it never issued a Director‑level memorandum lifting the global hold. The court therefore assumed that the Global Asylum Hold remained in effect and treated it as one of the policies to be reviewed and set aside.

Second, the Benefits Hold Policy. PM‑602‑0192 and PM‑602‑0194 placed a hold on “pending benefit requests for aliens from, pending a comprehensive review, regardless of entry date.” The January memo clarified that a “hold” allowed cases to proceed through some processing steps but barred “any final adjudication,” defined as “the issuance of a final decision on a case, such as an approval, denial, or dismissal.” This Benefits Hold applied to adjustment of status, employment authorization, naturalization, and other immigration benefits for nationals of all 39 Travel Ban Countries. The hold, like the asylum hold, would “remain in effect” until lifted by a subsequent Director memorandum.

Third, the Comprehensive Re‑Review Policy. The December memorandum also directed USCIS personnel to “conduct a comprehensive re-review of approved benefit requests for aliens from countries listed in the Travel Ban who entered the United States on or after January 20, 2021.” Those individuals were required to undergo a “thorough re-review process, including a potential interview and, if necessary, a re-interview, to fully assess all national security and public safety threats along with any other related grounds of inadmissibility or ineligibility.” This affected prior grants of asylum, withholding, adjustment of status, EADs, and possibly naturalization, based solely on nationality and date of entry, not on any individualized indicator of risk.

Fourth, the Country‑Specific Factors Policy. On November 27, 2025, USCIS issued Policy Alert PA‑2025‑26 (the “November Memorandum”), amending the Policy Manual. It instructed that, “effective immediately,” adjudicators must consider “any relevant country-specific factors such as those specified in the Travel Ban as significant negative factors in the adjudication of discretionary benefit requests.” The alert specified that “insufficient vetting and screening information” from identified countries should be treated as a significant negative factor, and it declared that the new guidance “is controlling and supersedes any related prior guidance.” In effect, for discretionary benefits linked to immigrant visas, being from a Travel Ban Country became itself a negative factor adjudicators were required to weigh.

USCIS tried to anchor these policies in INA § 212(f) and the President’s Proclamations 10949 and 10998, and it repeatedly invoked national security. Judge McConnell, however, emphasized that § 212(f) “addresses only the President’s authority and concerns only a single aspect of federal immigration law: restrictions on entry.” It empowers the President to “suspend the entry” of classes of noncitizens, but it does not govern USCIS processing of benefit applications by people already inside the United States. The travel‑ban proclamations themselves regulate “entry into the United States” and do not mention any holds on asylum, adjustment of status, work authorization, or naturalization. The court therefore held that “nothing in Section 1182(f) or the Presidential Proclamations authorize the Challenged Policies at issue here” and that USCIS could not bootstrap presidential entry powers into a broad domestic benefits freeze.

The government also argued that INA § 1252’s jurisdiction‑stripping clauses barred judicial review of the policies and that, in any event, adjudicating immigration benefits is “committed to agency discretion by law.” Judge McConnell rejected those arguments. He noted the “presumption favoring judicial review of administrative action” and explained that § 1252(a)(2)(B)(i)–(ii) is best read to bar review of individual discretionary denials (e.g., one person’s adjustment denial), not “collateral actions challenging general policies and procedures.” He distinguished the plaintiffs’ broad pattern‑or‑practice challenge from direct appeals of individual outcomes and applied Kucana v. Holder to hold that § 1252(a)(2)(B)(ii) applies only when Congress itself, “by legislation,” makes a decision discretionary. USCIS cannot insulate new powers from review by declaring them discretionary in internal memoranda. The government’s reliance on 8 U.S.C. §§ 1255(a) and 1324a as sources of discretion to adopt nationality‑based holds did not persuade the court, because those statutes focus on individual eligibility and define unauthorized work, not on any power to impose categorical, indefinite moratoria based on country of origin.

The court then examined the INA and USCIS regulations to test the government’s claim that the policies were unreviewable because they were “committed to agency discretion.” It found “more than enough law” across the asylum, adjustment, EAD, and naturalization frameworks to provide judicially manageable standards and to confirm that USCIS has nondiscretionary duties to adjudicate applications. For asylum, 8 U.S.C. § 1158(d)(5)(A)(iii) requires that, absent “exceptional circumstances,” final adjudications “shall be completed within 180 days,” and 8 C.F.R. § 208.9(a) directs that “USCIS shall adjudicate the claim of each asylum applicant whose application is complete” and that “in all cases” proceedings must be conducted in accordance with the asylum statute. For naturalization, 8 U.S.C. §§ 1446 and 1447 and 8 C.F.R. § 335.3(a) require personal investigations, examinations, and a decision (“shall grant” or deny) at or within 120 days of the exam. Adjustment and EAD regulations state that applicants “must file” and that USCIS “shall” notify them of decisions and reasons for denials. Taken together, these sources show that Congress and USCIS expected benefits to be processed and decided, not left in limbo. The policies therefore could not be shielded from APA review as matters “committed to agency discretion by law.”

On finality, the court rejected USCIS’s claim that its holds were interim. The memoranda were “effective immediately,” bound USCIS staff, and explicitly said that holds would remain until lifted by a Director‑level memo. Later carve‑outs for narrow categories, like Operation PARRIS cases, certain family petitions, and physicians, did not undo the core policies for Travel Ban nationals. Under Bennett v. Spear, these memoranda marked the “consummation” of the agency’s decision‑making and had clear legal consequences: they stopped cases from reaching decisions, caused individuals to lose work authorization and miss naturalization ceremonies, and increased the risk of arrest and removal. That was enough to constitute final agency action under the APA.

The court held that the claims were ripe because the policies were already in force, USCIS had already offered its national‑security rationales, and the core legal questions – whether the policies exceeded statutory authority and violated the APA – turned on events that had already occurred. Plaintiffs were not required to wait for individual denials. Their injury stemmed from USCIS’s refusal to decide at all. In terms of hardship, Judge McConnell highlighted unrebutted evidence that many individuals had lost jobs and status, that organizations like Dorcas and RDC were prevented from taking on new clients or had to reopen hundreds of closed files, and that substantial staff time was being devoted to counseling and support.

On the merits, Judge McConnell held that each policy was both “contrary to law” and “arbitrary and capricious.” For the Global Asylum Hold, he stressed that Congress’s repeated use of “shall” in § 1158(d)(5)(A)(iii) and the asylum regulations created a nondiscretionary duty to adjudicate asylum and withholding claims, and that withholding and CAT protections are mandatory once eligibility is established, under both statute and regulation. A blanket suspension of these adjudications, including for non–Travel Ban nationals, could not be squared with the statutory and regulatory scheme, especially because the government did not rely on the “exceptional circumstances” exception.

For the Benefits Hold Policy, he observed that naturalization law requires USCIS to investigate applicants, conduct examinations, and decide applications with reasons; regulations add that decisions must be made at or within 120 days of the interview and that applications that meet requirements “shall” be granted. Adjustment and EAD regulations impose filing obligations on applicants and notification and explanation duties on USCIS. Congress’s “sense” in 8 U.S.C. § 1571(b) that benefits “should” be processed within 180 days reflects an expectation that adjudication would proceed, not that USCIS could freeze adjudications for entire nationality‑based categories indefinitely. The government’s reliance on security inadmissibility provisions and information‑sharing statutes was misplaced because those provisions address entry and law‑enforcement cooperation, not domestic adjudication holds. In the court’s view, the Benefits Hold Policy was “fundamentally inconsistent” with the INA and USCIS’s own regulations and had to be set aside.

For the Comprehensive Re‑Review Policy, Judge McConnell pointed out that Congress has already prescribed how asylum, permanent residence, naturalization, and employment authorization may be revoked or terminated, through individualized procedures based on ineligibility, fraud, or other enumerated grounds. USCIS could not cite any statute conferring power to order a mass re‑review of all approved benefits for entire nationalities based solely on country of origin and entry date. While some courts recognize narrow inherent reconsideration power for agencies, that power does not apply “where Congress has spoken as to the proper procedure for reversing a decision.” Here, Congress had spoken, so USCIS’s attempt to subject all approvals for certain nationalities to a new re‑review regime exceeded its authority.

The Country‑Specific Factors Policy violated 8 U.S.C. § 1152(a)(1)(A). Judge McConnell described the history of that provision, enacted in 1965 to abolish national‑origin quotas and to “eliminate nationality-based discrimination in the immigration system.” He acknowledged that Trump v. Hawaii held § 1152(a)(1)(A) does not limit the President’s § 212(f) entry powers but emphasized that Hawaii itself recognized that § 1152(a)(1)(A) “prohibits discrimination in the allocation of immigrant visas based on nationality.” Adjustment and many employment‑based benefits depend on immigrant‑visa availability, so the nondiscrimination rule applies. By directing officers to treat Travel Ban country‑based “factors” as “significant negative factors” in these benefits, USCIS was effectively penalizing applicants for nationality or place of birth, in direct conflict with § 1152(a)(1)(A). The court rejected the government’s attempt to frame this as simple exercise of discretion, reminding USCIS that it has no discretion “to violate the binding laws, regulations, or policies that define the extent of his official powers” citing Red Lake Band of Chippewa Indians v. United States.

The court also found all four policies arbitrary and capricious. Two incidents involving Afghan nationals and generalized references to travel‑ban proclamations did not reasonably justify indefinite holds and re‑reviews for all nationals of 39 countries and a worldwide asylum freeze. Judge McConnell wrote that extrapolating “the criminal conduct of two noncitizens to thousands of other noncitizens, from dozens of countries around the world, does not rank as reasoned decisionmaking.” USCIS’s two‑sentence acknowledgment that these policies would cause “processing delays,” coupled with a bare assertion that such delays were “necessary and appropriate,” fell far short of the APA’s requirement that agencies weigh serious reliance interests, especially after “decades of … reliance on prior policy.”

On pretext, Judge McConnell applied the APA’s bad‑faith exception, supplementing the record with contemporaneous statements in which the President and Secretary referred to immigrants as “killers, leeches, and entitlement junkies” from “hellholes” and “shithole countries.” He characterized these remarks as “statements of ethnic hostility and prejudice” demonstrating “bad faith and impermissible animus,” and he refused the government’s invitation to ignore them merely because they were not quoted in the memoranda. Courts, he wrote, “are not required to exhibit a naiveté from which ordinary citizens are free,” and officials rarely admit discriminatory motives on the face of policy documents. The court also highlighted the carve‑outs for athletes and physicians as further evidence of pretext: if nationals of Travel Ban Countries as a class could not be trusted with benefits, it made little sense to exempt particular subgroups facing similar alleged vetting deficiencies. Taken together, the record revealed “a significant mismatch between the decision the agency made and the rationale it provided,” confirming that the national‑security rationale was contrived.

As a remedy, Judge McConnell followed the APA’s directive that courts “set aside” unlawful agency action. He vacated all four policies nationwide: the Global Asylum Hold Policy, the Benefits Hold Policy, the Comprehensive Re‑Review Policy, and the Country‑Specific Factors Policy. Vacatur renders those policies legally void and prevents USCIS from applying them going forward. The court also entered a declaratory judgment that each policy is unlawful under 5 U.S.C. § 706(2)(A) and (C). He declined to issue a permanent injunction, reasoning that vacatur and declaratory relief already provide complete relief because USCIS cannot rely on the invalidated policies, and that any future, substantively similar measures could be challenged on their own records if promulgated. Injunctions, he noted, are an “extraordinary” remedy, and here less drastic remedies sufficed. He also applied the doctrine of constitutional avoidance to decline ruling on plaintiffs’ Fifth Amendment due-process and equal-protection claims, denying the government’s motion to dismiss those claims without prejudice because the case was fully resolved on APA grounds.

Judge McConnell closed by stating that USCIS’s policies “did not simply place a hold on adjudications. More fundamentally, the Challenged Policies placed the lives of countless individuals on hold – solely by virtue of their countries of birth.” Many remained “without work, without legal status, and without any meaningful ability to plan for their futures.” It is not the court’s role to judge the wisdom of immigration policy, he wrote, but it is its duty to decide whether those policies comply with the law. Here, they did not – and so had to be “vacated and set aside.”

For immigrants and employers, the court’s ruling – grounded in the INA and the APA as the opinion makes clear – means that USCIS may no longer rely on these four vacated policies to categorically freeze adjudications or to treat nationals of the 39 Travel Ban Countries as presumptively disfavored in immigrant‑visa–linked benefits. Going forward, USCIS must operate within the statutory and regulatory framework the court described: complete, properly filed applications must be adjudicated; nationality‑based penalties in immigrant‑visa allocation are prohibited by 8 U.S.C. § 1152(a)(1)(A); and broad, nationality‑based moratoria and mass re‑review programs exceed the authority Congress has given the agency.

The court itself spelled out the practical consequences. It held that the Global Asylum Hold, Benefits Hold, Comprehensive Re‑Review, and Country‑Specific Factors Policies are “declared unlawful and are hereby vacated and set aside”. That means applications that were frozen solely because the applicant is from a Travel Ban Country must return to ordinary adjudication channels under the INA and USCIS regulations. Asylum and withholding applications for those nationals can no longer be held in indefinite limbo based on the vacated policies. Work authorization, adjustment of status, and naturalization applications filed by people from the 39 countries must be processed without categorical, nationality‑based holds or across‑the‑board negative presumptions. Previously approved benefits may not be subjected to a special, country‑based re‑review regime. If USCIS seeks to rescind or terminate benefits, it must use the individualized grounds and procedures Congress defined for asylum termination, rescission of adjustment, denaturalization, or EAD revocation. And adjudicators may not treat Travel‑Ban‑derived “country-specific factors” as automatic negative weights in immigrant‑visa–linked discretionary decisions in a way that conflicts with § 1152(a)(1)(A).

For practitioners, the opinion points to clear next steps rooted in the court’s reasoning: identify clients from Travel Ban Countries whose asylum, EAD, adjustment, or naturalization cases have stalled, been reopened, or had oath ceremonies cancelled since late 2025; confirm whether those delays were attributable to the now‑vacated policies; and consider targeted agency follow‑up or, where appropriate, litigation that invokes the vacatur and declaratory relief in Dorcas. For affected communities, Judge McConnell’s decision reaffirms a core principle: the federal government may not close lawful immigration pathways or single out entire national‑origin groups for adverse treatment “solely by virtue of their countries of birth,” under the guise of national security, when the INA and the APA provide no such authority and the record reveals policies that placed “the lives of countless individuals on hold” for reasons the law does not permit.

Dorcas v USCIS does not apply to the State Department’s January 21, 2026 pause on visa issuances at US consulates who are nationals of 75 specified countries. The 75 country ban is subject to a separate lawsuit, Clinic v. Rubio.

The following passage from the opening lines of the decision are worth quoting:

“In ruling on these motions, the Court is reminded of a line often repeated in discussions around immigration policy: If people wish to immigrate to the United States, they ought to ‘follow the law’ and ‘do things the right way.’ This case serves as a perfect example of immigrants doing just that. Plaintiffs and their members have observed the legal processes that Congress enacted by statute and USCIS promulgated by regulation so that they may one day obtain immigration benefits. They have, for example, filed the appropriate paperwork, paid the required filing fees, submitted to the requested biometrics collections, and attended the necessary in-person interviews. Even so, Plaintiffs and their members are stuck waiting, for months on end, for benefit requests that USCIS refuses to adjudicate.

But the rule of law has to apply to everyone equally and, as evident here, USCIS has neither ‘followed the law’ nor ‘done things the right way.’ Indeed, the agency has violated the very immigration laws that Congress has charged it with administering, as well as the administrative laws that govern the agency’s actions. In enacting its latest immigration policies, USCIS: claims statutory and regulatory authority that it does not possess; makes decisions without the reasoned explanations that it must provide; acts without regard for the reliance interests of applicants that it must consider; and justifies its actions with pretextual concerns of ‘national security’ that mask anti-immigrant sentiments that it is forbidden from letting influence its decision-making. In legal terms that means USCIS’s actions are contrary to law and arbitrary and capricious.

Accordingly, as set forth below, each of the Challenged Policies that USCIS enacted—the Benefits Hold Policy, the Global Asylum Hold Policy, the Comprehensive Re-Review Policy, and the Country-Specific Factors Policy—are declared unlawful and are vacated and set aside.”

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

The Credibility Problem in Extraordinary Ability Cases: Why Evidence Matters More Than Ever in EB-1 and O-1 Petitions

May 31, 2026/0 Comments/in Blog/by Cyrus Mehta

By Cyrus D. Mehta and Manjeeta Chowdhary *

In visa categories such as EB-1 and O-1, evidence is the cornerstone of the petition. The USCIS Policy Manual identifies the types of evidence that may support O-1 and EB-1 petitions, underscoring that these classifications are fundamentally evidence-driven. In EB-1 cases, the central issue is whether the beneficiary has achieved sustained national or international acclaim and reached the top of the field. O-1 petitions similarly require evidence of distinction, extraordinary ability, or extraordinary achievement in the beneficiary’s profession. USCIS decides these cases based on documentary proof. Put simply, evidence is the lens through which the agency determines whether a beneficiary is truly extraordinary. Where evidence is central, credibility is essential. That is precisely why caution is warranted when evidence appears formulaic, crowdsourced, or manufactured.

One increasingly visible pattern in EB-1 and O-1 petitions is the repetition of strikingly similar combinations of supporting documentation: the same professional memberships, the same categories of awards, similar judging invitations, comparable forms of published material, and increasingly familiar expert opinion structures and narratives. In many instances, these strategies are not developed independently based on the beneficiary’s unique career trajectory, but are influenced by online discussion forums, Reddit threads, WhatsApp groups, Discord communities, YouTube videos, paid consultants, and informal immigration networks where beneficiaries exchange information about “what worked” in prior cases.

This concern becomes particularly relevant in the context of paid publications, staged awards, or carefully developed judging opportunities. The issue is not necessarily whether money changed hands or whether an opportunity was strategically pursued. Public relations firms serve legitimate business purposes, some reputable awards involve nomination or participation fees, and professional visibility is often a normal aspect of career advancement. Nor is there anything inherently improper about pursuing speaking, judging, or leadership opportunities. The more difficult inquiry is whether the evidence genuinely reflects independent recognition within the field or whether it appears manufactured primarily to satisfy an immigration criterion.

There is a meaningful difference between media recognition that arises because a beneficiary’s work generated genuine professional attention and media coverage obtained primarily to create “published material” evidence. Likewise, there is a difference between a respected and competitive award recognized within a profession and an accolade that appears prestigious in title but carries limited significance in practice. Judging opportunities may strongly support extraordinary ability where a beneficiary was selected because of recognized expertise; however, where judging opportunities appear carefully arranged primarily to generate immigration evidence, questions regarding probative value inevitably arise.

The concern becomes more serious when supporting evidence contains exaggerated, unsupported, or potentially misleading information. In extraordinary ability petitions, the question is not simply whether a document fits a regulatory category, but whether the underlying claims are accurate, independently supported, and reflective of genuine professional recognition. When publicity-generated articles, curated awards, or arranged judging opportunities include overstated claims, credibility concerns begin to emerge. In these evidence-driven classifications, unsupported factual assertions carry greater consequences because they go to the central question USCIS must decide whether the beneficiary has truly achieved distinction in the field.

A related concern is the increasing reliance on Artificial Intelligence to develop extraordinary ability narratives. When relied upon uncritically, AI may generate generalized expert letters, polished but unsupported narratives, or language that overstates the evidentiary record. In extraordinary ability petitions, persuasive drafting cannot substitute for independently verifiable facts. We also refer our readers to a prior blog, “To What Extent Can Immigration Practitioners Ethically Rely on Chat GPT to Aid their Practice”, https://blog.cyrusmehta.com/2023/09/to-what-extent-can-immigration-practitioners-ethically-rely-on-chatgpt-to-aid-their-practice.html, where we demonstrate that a support letter for an O-1B petition generated by ChatGPT may be polished but superficial. It is incumbent on the applicant to provide more details and not simply rely on the AI generated product. The USCIS may also be able to detect a letter generated by AI and not give it the same weight.

This phenomenon is understandable. Extraordinary ability classifications remain among the most subjective areas of immigration law. Unlike petitions based on clearly defined educational or occupational requirements, EB-1 and O-1 petitions often require USCIS to evaluate concepts that are inherently more difficult to assess objectively, including distinction, acclaim, originality, influence, recognition, or significance within a field. Given this uncertainty, it is natural for beneficiaries to seek predictability and to look toward examples of successful cases, online discussions, and recurring forms of evidence that appear to have persuaded USCIS in prior filings.

To be clear, there is nothing inherently improper about shared information or recurring forms of evidence. Professional memberships, judging opportunities, media coverage, published articles, and industry awards may all serve as highly probative evidence in the appropriate context. Online communities may also play an important educational role by helping applicants better understand complex regulatory criteria that might otherwise seem inaccessible. Similarly, artificial intelligence can be an effective tool for organization, drafting, issue spotting, and synthesizing large volumes of information.

The concern, however, arises when strategy becomes so standardized that evidence begins to appear curated for immigration purposes rather than reflective of genuine professional distinction. Extraordinary ability petitions are not intended to function as checklist exercises. The inquiry is not whether a beneficiary has assembled the same evidence discussed online or obtained credentials others have successfully relied upon. Rather, the relevant question is whether the evidence persuasively demonstrates that this beneficiary has attained sustained acclaim, distinction, or extraordinary achievement within the field.

Recurring evidence is not inherently weak or improper, and beneficiaries need not avoid it simply because others have used it successfully. The problem is not repetition, but the use of evidence chosen mainly to satisfy a regulatory category rather than to reflect genuine professional distinction. That is when credibility concerns begin to arise, especially if the supporting evidence is exaggerated, unsupported, or detached from authentic recognition in the field.

This issue also raises ethical concerns. Immigration attorneys must critically evaluate evidence, not simply compile it. Third-party materials, particularly publicity-driven articles, questionable awards, or strategically arranged judging opportunities, require close review when their claims seem exaggerated, unsupported, or unrelated to genuine professional recognition. The fact that similar evidence succeeded in earlier cases does not make it reliable, and meeting a regulatory category does not prove the underlying claims are true. When factual assertions cannot be independently verified, the issue is no longer just evidentiary weakness, but credibility. The USCIS can potentially charge the noncitizen applicant with fraud or misrepresentation, which would result in permanent inadmissibility under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA). Knowingly, submitting fraudulent material about one’s credentials can also incur criminal liability under federal penal statutes such as 18 USC 1001. An attorney who knowingly assists their client in submitting such material can also be charged criminally with aiding or abetting conspiracy. Moreover, the attorney would also be violating their ethical obligations under the state analog of ABA Model Rule 3.3 and pursuant to 8 CFR 1003.102(c) for knowingly making a false statement, which is part of the federal rules that sanction immigration practitioners.

Recent developments further reinforce the importance of evidentiary credibility in extraordinary ability petitions. In Matter of Texperts, Inc., 29 I&N Dec. 491 (AAO 2026), the Administrative Appeals Office issued a significant precedent decision confirming that USCIS may continue to preserve findings relating to fraud or willful misrepresentation even after a petition has been withdrawn. Although the case arose in the H-1B context, the AAO’s reasoning rests upon broader USCIS authority and immigration principles that are not confined to a single visa category. For evidence-driven petitions such as EB-1 and O-1 filings—where eligibility often turns on documentary submissions—the practical implication is difficult to ignore: withdrawal may not necessarily resolve concerns arising from unsupported or misleading evidence once it enters the administrative record. The decision serves as an important reminder that, in evidence-driven petitions, credibility concerns may outlast the petition itself.

*Manjeeta Chowdhary is an Associate at Cyrus D. Mehta & Partners PLLC.

USCIS New Policy Limiting Adjustment of Status Eligibility Is Bad Policy and Contrary to Law

May 23, 2026/0 Comments/in Blog/by Cyrus D. Mehta & Damira Zhanatova

By Cyrus D Mehta and Damira Zhanatova*

As previously addressed here, on May 21, 2026, USCIS issued Policy Memorandum PM-602-0199 (“memo”), announcing that filing an I-485 adjustment of status (AOS) application in the United States will be treated as an “extraordinary” form of relief and emphasizing that most individuals seeking permanent residence should instead complete immigrant visa processing abroad through a U.S. consulate. USCIS presents this as a reaffirmation of a “consistent and longstanding approach” and a return to the “original intent” of INA 245, but the practical effect is a sharp break from decades of adjudicatory practice in which eligible applicants routinely adjusted status from within the United States in both employment-based and family-based categories. The policy is expected to have substantial consequences for employers, families, and individuals who have relied on adjustment of status as the central mechanism for obtaining permanent residence.

The standard set forth in this memo is not only an abrupt upheaval of established USCIS policy, but also in contravention of the law. INA 245(a), codified at 8 U.S.C. 1255(a), states only that “Any alien who has been lawfully admitted for temporary status… such status not having been terminated, may apply for adjustment of status…” Although adjustment of status is a discretionary benefit pursuant to INA 245(a), it has never been interpreted as an “extraordinary” form of relief. The characterization of adjustment of status as “extraordinary relief” is not present anywhere in the INA and would surely have been spelled out by Congress if this was, in fact, its intent. USCIS’s interpretation of the word “may” in INA 245(a) to mean “extraordinary” is not only illogical, but contrary to the meaning of the statute and to longstanding USCIS policy.

The memo’s core message is that adjustment of status is not the norm but an exception. USCIS repeatedly characterizes AOS as “a matter of discretion and administrative grace,” citing decisions such as Matter of Blas, where the BIA characterized adjustment as discretionary relief and described it as “extraordinary” because it allows a noncitizen to avoid the ordinary consular visa-issuing process. The memo quotes that adjustment “was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases,” and it points to federal cases like Chen v. Foley for the proposition that adjustment is not meant to replace consular processing. It then extends this characterization to current practice by stating that, as a general matter, nonimmigrants and parolees are expected to depart once the purpose of their admission or parole is fulfilled and that seeking AOS instead “contravenes” Congressional expectations.

Under the memo, remaining in the United States and applying to adjust status rather than departing and consular processing will often be treated as an adverse discretionary factor. USCIS says that, with limited exceptions, the statutory scheme suggests that Congress expects paroled and nonimmigrant entrants to depart and pursue immigrant visas abroad, and it notes that applicants who do not depart typically have violated status, overstayed, or engaged in unauthorized employment. The memo invokes Matter of Blas for the proposition that such adverse factors may need to be offset by “unusual or even outstanding equities,” while explicitly stating that the mere absence of adverse factors is not enough to show such equities. What the memo does not mention, however, is that the BIA’s precedent decision in Matter of Arai is still the law. In Matter of Arai, the Board held that where there are adverse factors weighing against the approval of an adjustment of status application, the applicant may need to offset those factors by showing “unusual or even outstanding equities,” but in cases where there are no adverse factors present, adjustment of status will ordinarily be granted, albeit still as a matter of discretion. In other words, Arai makes clear that the presence of statutory eligibility and the absence of negatives should normally result in a grant. The memo adopts the “unusual or even outstanding equities” language while omitting Arai’s equally important holding that, when there are no adverse factors, adjustment should generally be approved.

This is a significant shift assuming USCIS intends to implement the new policy. Historically, although adjustment under INA 245(a) has always been technically discretionary, USCIS adjudications in employment-based and family-based cases focused on statutory eligibility, inadmissibility, and policy-manual guidance on discretion. Eligible applicants in lawful status, particularly employment-based applicants in H-1B or L-1 status and family-based immediate relatives of U.S. citizens, were not treated as asking for “extraordinary” relief merely because they sought to adjust status rather than depart for consular processing. The new memo aims to reverse that presumption by recasting AOS as an act of “administrative grace” that should generally yield to consular processing.

This interpretation depends heavily on a novel reading of the word “may” in INA 245(a). The statute provides that the status of an eligible alien “may be adjusted by the Secretary, in his discretion.” That language plainly grants discretion, but it does not say that adjustment must be “extraordinary,” rare, or disfavored. Elsewhere in the immigration statute, Congress has explicitly used heightened standards like “clear and convincing evidence” when it wished to impose special burdens or reserve relief for exceptional cases. Indeed, INA 245 itself contains provisions that require “clear and convincing” evidence in specific contexts. If Congress intended adjustment of status in 245(a) to be limited to “extraordinary” circumstances, it knew how to say so directly and did not. Interpreting “may” to mean “extraordinary” has no support in the statutory language of 8 U.S.C. 1255. It is a policy choice layered on top of the statute rather than an interpretation compelled by the statute itself.

The broader structure of section 245 and related provisions confirms that Congress saw adjustment as a central, normal mechanism for those already in the United States. Through 245(i), Congress allowed certain individuals who would otherwise be barred (for example, for unauthorized employment or unlawful presence) to adjust upon payment of a penalty, thereby expanding access to adjustment. Through 245(k), Congress created a targeted cure for certain employment-based applicants with limited status violations of 180 days or less from their last admission. Congress also affirmatively created and preserved dual-intent categories like H-1B and L, which only make sense if pursuing permanent residence, including through adjustment, while in nonimmigrant status is an anticipated and legitimate use of the system. At no point did Congress amend 245(a), 245(i), or 245(k) to say that adjustment in those contexts is “extraordinary” or a disfavored exception. When Congress enacted INA section 204(j) portability through the American Competitiveness in the Twenty-First Century Act (AC21), it also included sections 104(c) and 106(a), specifically to allow H-1B workers pursuing permanent residence to extend status beyond normal limits while their adjustment cases remained pending. Those provisions reflect that adjustment of status for dual intent H-1Bs and Ls is routine and normal, not an extraordinary exception.

The structure of 245 and related AC21 provisions thus shows a legislative intent to use adjustment as a central pathway for those present in the United States who meet detailed eligibility criteria, not as a marginal, almost unattainable form of grace. By insisting that the ordinary, statutorily authorized use of these pathways is now disfavored “extraordinary” relief, the USCIS memo runs directly against what Congress actually did in INA 245 and AC21.

In the wake of the Supreme Court’s Loper Bright decision overturning Chevron deference, this kind of aggressive agency reinterpretation of “may” in INA 245(a) should be especially vulnerable. Under Chevron, agencies received considerable leeway to interpret ambiguous statutes. Post-Chevron, courts will be far more willing to ask whether an agency’s reading is consistent with the statutory text and structure. A court looking at 8 U.S.C. 1255 could reasonably conclude that USCIS’s attempt to convert ordinary discretionary language “may” into a requirement that adjustment be rare, “extraordinary” relief is not a permissible interpretation but a rewriting of the statute. The lack of notice-and-comment rulemaking for a shift this sweeping strengthens an Administrative Procedure Act challenge, because the memo functions more like a substantive rule than a minor interpretive clarification.

The memo is also incomplete in its treatment of prior BIA case law. While it leans on decisions like Matter of Blas to characterize adjustment as an “extraordinary” remedy, it omits reference to BIA decisions that recognize the central role of adjustment for immediate relatives and other core categories. For example, BIA cases dealing with spouses and children of U.S. citizens, such as Matter of Cavazos and Matter of Ibrahim, required a favorable exercise of discretion but also acknowledged that strong equities in those relationships often warranted granting adjustment where statutory eligibility and admissibility were satisfied. These decisions do not treat immediate-relative adjustment as rare “extraordinary” relief but as the expected mechanism Congress intended for uniting U.S. citizens with close family. The memo’s silence about that line of cases underscores how selective its reliance on precedent is.

Beyond the prevailing policy of this administration, adjustment of status under INA 245 is the linchpin of the modern legal immigration system for people already in the United States. For employment-based applicants, AOS permits continued work authorization and stable employment relationships while multi-year immigrant visa backlogs clear, sparing both employers and employees the disruption and risk of consular trips and administrative processing abroad. For family-based applicants, especially those with U.S. citizen spouses and children, adjustment is often the only realistic way to avoid lengthy family separation during the green card process. For noncitizens from countries that have faced travel bans or other entry restrictions, consular processing may be effectively impossible or extremely risky. Those who leave may be subject to a visa refusal under INA 221(f). In these circumstances, a USCIS policy that treats AOS as disfavored “extraordinary” relief threatens to leave many with no viable path at all. The US approves over 1 million people to become lawful permanents, and about half of them apply through adjustment of status. The policy memo, if implemented will bar over 600,000 people from getting green cards through adjustment of status.

The memo’s approach is especially severe for applicants in long-backlogged categories who are already living and working lawfully in the United States and raising U.S. citizen children. For these families, a pending adjustment application functions as a lifeline: it anchors work authorization, travel permission, and a basic measure of stability in an otherwise precarious system. By recasting adjustment as a rare exception and steering applicants toward consular processing, the policy threatens to tear that safety net away. The harm is magnified by existing conditions at U.S. consulates, where many posts already struggle with long appointment queues, expanded security screening, and unpredictable administrative processing. Forcing large numbers of cases that historically would have adjusted domestically into these consular pipelines will almost inevitably worsen backlogs and delays, compounding the disruption.

The practical consequences for employers will be substantial. If officers, following the memo, routinely decline to exercise discretion favorably in adjustment cases and instead encourage or effectively require consular processing, employers can expect more frequent international travel disruptions, extended periods during which key employees are stuck abroad awaiting immigrant visas, higher legal and logistical costs, and greater uncertainty in workforce planning and retention. These burdens will sit on top of the already-documented consular constraints, including resource limitations and enhanced social media and security vetting, which have made visa processing timelines increasingly unreliable.

For individuals and families, particularly those in backlogged preference categories who are lawfully employed and caring for U.S. citizen children here, the memo threatens to strip away a critical stabilizing mechanism. A pending adjustment application does more than just move a case forward. It provides employment authorization, travel permission, and a degree of protection that is especially vital for people who cannot safely or realistically return abroad for consular processing because of travel bans, persecution risks, or severe consular delays. Under a regime that treats adjustment as an extraordinary indulgence rather than an integral, congressionally designed component of the system, many families will be forced into impossible choices between prolonged separation and abandoning their pursuit of lawful permanent residence altogether.

Since the memo’s release, there has already been an indication that USCIS is attempting to water down its message in response to immediate backlash, an implicit acknowledgment of how vulnerable the policy is under the statute and how disruptive it is likely to be for employers, workers, and families. A recent report on X describes USCIS officials as suggesting that those with applications that “provide an economic benefit or otherwise are in the national interest” will be permitted to continue on their current adjustment path, while others may be asked to apply for immigrant visas abroad depending on their individualized circumstances. Even this “watering down” is contrary to INA 245(a) and will result in more subjectivity and denials. Creating a vague, extra-statutory category of cases that supposedly serve “economic” or “national interest” goals does not cure the underlying legal defect. It simply adds another layer of unconstrained discretion. In addition to the new policy being driven by animus towards noncitizens, whether they are legal or not, it reflects sheer incompetence given the disruption it will cause to businesses and families.

In sum, INA 245 does not preclude adjustment of status, and the memo does not change the law. USCIS has always had discretion to approve or deny and adjustment of status application. Matter of Arai holds that if there are no adverse factors present, adjustment of status should be granted as a matter of discretion. Applicants may still file adjustment of status applications, and respond to requests for evidence, if issued, regarding whether they merit the favorable exercise of discretion. We need to continue to evaluate how the USCIS will adjudicate currently pending adjustment of status applications and new applications. If there are arbitrary denials because USCIS has begun to view adjustment of status as “extraordinary” relief, applicants and their lawyers can challenge them in federal court. Until then, adjustment of status still remains a viable option as before and should not be foreclosed based on a USCIS memo that unlawfully reinterprets the law.

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

The Diplomatic Exception to Birthright Citizenship: Paths to Permanent Residence and Naturalization

May 17, 2026/0 Comments/in Blog/by Cyrus D. Mehta & Damira Zhanatova

By Cyrus D Mehta and Damira Zhanatova*

One of the most misunderstood areas of U.S. immigration law is the treatment of children born in the United States to foreign diplomats. Most people assume that anyone born on U.S. soil is automatically a U.S. citizen. In reality, the Fourteenth Amendment and federal regulations carve out a narrow exception for children born to certain accredited diplomats. These children are generally not U.S. citizens at birth, but they have a unique, voluntary path to lawful permanent residence (a green card) that is effective from birth and, from there, to U.S. citizenship. When that framework is ignored or mishandled, the consequences can be deeply disruptive.

Birthright citizenship comes from the Fourteenth Amendment, which grants citizenship to those “born or naturalized in the United States, and subject to the jurisdiction thereof.” The phrase “subject to the jurisdiction thereof” is crucial. The Supreme Court has long held that this clause excludes only a few narrow groups, including children of foreign diplomats and children born to enemy forces in hostile occupation. Accredited diplomats are treated under international law as remaining under the jurisdiction of their own governments rather than the United States. The State Department’s Foreign Affairs Manual explains that diplomatic agents are immune from U.S. criminal jurisdiction and, with limited exceptions, from civil and administrative jurisdiction as well. Because they are not fully subject to U.S. law, their U.S.-born children are not considered “subject to the jurisdiction” of the United States and therefore do not acquire citizenship at birth.

This legal framework is implemented through the regulations at 8 CFR 101.3 and 8 CFR 264.2, as well as the corresponding guidance in the USCIS Policy Manual. Under these authorities, a child born in the United States to a foreign diplomatic officer accredited by the Department of State may voluntarily register to be treated as a lawful permanent resident from birth. Because such a child was not born “subject to the jurisdiction of the United States,” they do not gain citizenship under the Fourteenth Amendment, but they can choose to be considered a permanent resident as of their date of birth. This registration is voluntary and requires an application. It is not automatic.

The diplomatic exception itself is narrow and depends on the parents’ exact legal status when the child was born. It covers foreign sovereigns on official visits and accredited diplomatic officials such as ambassadors, ministers, chargés d’affaires, counselors, agents and secretaries of embassies, and attachés and other staff attached to an embassy. It also reaches people with comparable diplomatic status and immunities who are assigned to the United Nations or the Organization of American States, or who otherwise hold comparable status under international agreements. In practice, the key question is whether the parent’s accredited title appeared on the State Department’s Diplomatic List, known as the Blue List, at the time of the child’s birth. Only Blue List officers, who enjoy full diplomatic immunity, fall within the regulatory definition of “foreign diplomatic officer” for this purpose. Not all A or G nonimmigrants are on the Blue List or have full immunity. Many consular officers and staff, for example, have more limited protections and are not on the Blue List. Their U.S.-born children are generally citizens at birth because those parents are treated as subject to U.S. jurisdiction.

For someone who does fall under the diplomatic exception, immigration law provides a clear path. A child born in the United States to a qualifying foreign diplomatic officer is not automatically a citizen, but under 8 CFR 101.3 the child may be “considered a lawful permanent resident at birth” if a record of permanent residence is properly created under 8 CFR 264.2. This status is not conferred automatically. The person must submit a Form I‑485 application to create that record. USCIS guidance explains that this process allows a U.S.-born child of an accredited foreign diplomatic officer to voluntarily register permanent resident status, retroactive to birth.

To do that, the child (or a parent, if the child is under 18) files Form I-485 with the fee, supported by a U.S. birth certificate, a list of all U.S. entries and exits, proof of continuous residence, two passport photos, and official confirmation that at least one parent was a Blue List diplomatic officer at the time of birth, including that parent’s classification and title. The applicant also submits Form I-566 (showing A or G status history) and Form I-508 to waive any diplomatic rights and immunities, since lawful permanent residents must be fully subject to U.S. law. USCIS then confirms the parent’s diplomatic status with the Department of State. If all requirements are met, the application is approved, the person is classified as DS1 (Born Under Diplomatic Status in the United States), and permanent residence is treated as having begun on the date of birth, not the approval date. The adjudication does not involve the usual admissibility analysis or discretionary balancing that apply in many other adjustment cases. Instead, the focus is on whether the specific eligibility criteria in the regulations are met.

From there, the path to citizenship is the same as for other permanent residents. Once USCIS approves the I‑485, the person is an LPR effective from their date of birth. When they satisfy the statutory naturalization requirements, they may file Form N‑400 to become a citizen. Because their LPR date is deemed to be their date of birth, most will already meet the residence‑duration requirement at the time they register, as long as they have maintained the residence and presence required by the naturalization laws.

Despite this clear regulatory framework, the diplomatic exception is often missed for years. Local vital records offices issue standard U.S. birth certificates to everyone born in their jurisdiction, including children of diplomats. Those certificates do not reflect the parents’ diplomatic status, and local staff generally do not investigate whether a parent is a foreign diplomatic representative. On the basis of that birth certificate, many children of diplomats obtain Social Security numbers, U.S. passports, and driver’s licenses, and may even register to vote and be called on for jury duty. To agencies and institutions, these individuals appear indistinguishable from U.S. citizens. Yet if their parents held full Blue List diplomatic status at the time of their birth, they may never have acquired citizenship under the Fourteenth Amendment. This discrepancy often comes to light only when they apply for, or attempt to renew, a U.S. passport, or when a more detailed status review prompts a closer examination of their parents’ diplomatic history and Blue List records.

One widely reported case shows how disruptive this can be. A U.S.-born physician in his early sixties, who had lived in the United States his entire life, practiced internal medicine in Northern Virginia for more than three decades, and paid taxes for years, applied in 2023 to renew his U.S. passport. Instead of a routine renewal, the State Department informed him that his citizenship had been a “mistake.” Officials determined that his father had been an accredited Iranian diplomat at the time of his birth. Because of his father’s diplomatic immunity, they concluded that he was not “subject to the jurisdiction” of the United States at birth and had never lawfully acquired citizenship. In a single letter, he went from being a long‑time U.S. citizen in the eyes of his community to being treated as a non‑citizen and essentially stateless. He could not travel, faced uncertainty about his medical license and ongoing employment, and had to retain legal counsel and begin the process of applying for lawful permanent residence under the diplomatic‑birth framework rather than simply renewing a passport. His case underscored that what the government characterizes as a correction under 8 CFR 101.3 can, in practical terms, overturn a person’s life.

USCIS and the State Department’s position in such cases is not that citizenship is being revoked in the denaturalization sense, but that citizenship never attached under the Constitution and 8 CFR 101.3 because the parents’ Blue List diplomatic status placed the child outside U.S. jurisdiction at birth. The proper remedy, in their view, is not a citizenship adjudication, but registration as a permanent resident through 8 CFR 264.2 and, if desired, later naturalization.

There is anecdotal evidence of this pattern. In one scenario, a person is born in the United States while both parents are serving here as foreign diplomats, often at a UN mission or embassy. They grow up entirely in the United States, hold a state birth certificate and a Social Security number, and have always assumed they are U.S. citizens. They never applied for a U.S. passport as a child or young adult. Only when they apply for a first passport in adulthood does the State Department review their parents’ records, discover that one or both were Blue List diplomats with full immunity at the time of birth, and deny the passport with an explanation that the applicant is not a U.S. citizen. In another scenario, a person in the same position receives a U.S. passport as a child and may have that passport renewed multiple times. Agencies never examine the parents’ diplomatic history. The person lives in the United States, works, pays taxes, votes, and even serves on juries, believing in complete good faith that they are a citizen. Then, at some later renewal, the State Department undertakes a more thorough review, confirms that a parent was on the Blue List as a fully immune diplomatic officer at the time of birth, and concludes that citizenship was never lawfully acquired. The renewal is denied, and the individual receives a written determination that they are not a U.S. citizen.

From the applicant’s perspective, it feels as if their citizenship is being annulled. But the government’s legal position is that, because the parents were qualifying foreign diplomats, the person was never a citizen at birth. Earlier passports and other documents were issued in error because agencies did not have or did not consider the parents’ diplomatic status. When the State Department now refuses renewal, it is, in effect, correcting that underlying mistake.

At that point, these individuals are no longer simply applying to obtain or renew a passport. They must rebuild their immigration status through the diplomatic‑birth lawful permanent resident framework. In practice, this usually requires filing Form I‑485 under 8 CFR 264.2, with a thorough evidentiary record documenting their U.S. birth, continuous residence, complete travel history, and their parents’ status on the State Department’s Blue List, together with Forms I‑566 and I‑508. Form I‑485 itself poses a series of detailed, high‑stakes questions, including whether the applicant has ever worked in the United States without authorization, whether they have ever falsely claimed to be a U.S. citizen in any context, and whether they have ever voted in violation of federal, state, or local law. For someone who has genuinely believed for decades that they were a U.S. citizen, and who has lived, worked, voted, and paid taxes on that understanding, answering these questions can be especially daunting. Their responses must be crafted with great care and supported by a clear legal and factual explanation so that USCIS understands this history as the product of a long‑standing, government‑reinforced misunderstanding of status, not as deliberate fraud or willful misrepresentation. Fortunately, in this diplomatic‑birth registration setting, USCIS does not apply the usual inadmissibility grounds the way it does in ordinary adjustment cases. When someone is being formally recognized as a permanent resident from birth, their prior good‑faith use of U.S. documents or belief that they were a citizen is not treated as a basis to find them inadmissible for misrepresentation or a false claim to U.S. citizenship.

Once a person in this situation becomes a permanent resident under the DS1 framework authorized by 8 CFR 101.3 and 8 CFR 264.2, they are deemed to have been permanent residents as of their date of birth. For many such individuals, that means they can apply for citizenship as soon as their permanent residence is registered and any separate naturalization‑specific requirements are satisfied.

Children born in the United States to accredited foreign diplomats occupy a unique and often precarious place in U.S. law. They are not citizens at birth because their parents were not “subject to the jurisdiction” of the United States. In practice, they are frequently treated as citizens for years because they receive standard birth certificates and, in some cases, passports and other documents. Under 8 CFR 101.3 and 8 CFR 264.2, however, they have a special, voluntary path to lawful permanent residence that is backdated to birth, and once registered as LPRs, they can pursue naturalization under the ordinary rules. When these issues are recognized and handled proactively, the legal framework allows children of diplomats to move from a misunderstood status to permanent residence from birth and ultimately to secure U.S. citizenship. When they are discovered late, as in some cases, the disruption can be significant. For anyone born in the United States to parents who served here as diplomats, it is essential to understand the parents’ exact Blue List and immunity status at the time of birth, to document residence and travel history, and to pursue the most appropriate and legally sound path.

Our blog has nothing to do with the Trump administration’s executive order denying birthright citizenship to children born to parents who are either not in the U.S. lawfully or who are in the U.S. temporarily. It has always been acknowledged that children born in the U.S. to diplomats who enjoy immunity are not subject to the jurisdiction of the United States and do not acquire citizenship at the time of their birth in the U.S. Such persons can still register as permanent residents and are able to become U.S. citizens through naturalization. They are in a much better position than what might happen to children born in the U.S. if Trump’s executive order was implemented. That kind of policy could have perverse and far-reaching consequences. Children born in the United States to undocumented parents could be left without any lawful status. Because some countries do not automatically confer citizenship to children born abroad based solely on their parents’ status, some children in this situation could even be born stateless. The U.S.-born children of parents who hold a valid nonimmigrant status, such as H-1B or H-4, would also be impacted. A person must either be admitted into the U.S. in H-4 status or change into H-4 from another nonimmigrant status, so it is unclear how a newborn child could acquire a nonimmigrant status from birth. Parents might be forced to scramble and file immigration applications immediately following a child’s birth to ensure that they are not out of status. Because birth in the United States would no longer be sufficient to confer citizenship, even U.S. citizen parents might be forced to provide exhaustive proof of legal status to ensure that citizenship was also extended to their children. These scenarios are analyzed in greater detail in a prior blog. If Trump’s executive order ever takes effect, although we fervently wish it will never happen, children born of parents in any status should be recognized as permanent residents just like children who are born to foreign diplomats.

The hope is that the Supreme Court, in Trump v. Barbara, will reaffirm the settled understanding of birthright citizenship under the Fourteenth Amendment: that, with the narrow and historically recognized exception for children born to accredited foreign diplomats, children born on U.S. soil are citizens at birth. For those born in the United States to foreign diplomats who later discover that they did not acquire citizenship at birth, existing law already provides a clear and workable remedy: they can register permanent residence as of their date of birth and then pursue naturalization under the ordinary rules. Any effort to narrow birthright citizenship beyond this limited diplomatic exception would raise serious constitutional concerns under the Fourteenth Amendment.

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

Navigating the Downgrade of the Indian LL.B in Green Card Sponsorships for Lawyers

May 10, 2026/0 Comments/in Blog/by Cyrus D. Mehta & Damira Zhanatova

By Cyrus D Mehta and Damira Zhanatova*

Over the last few years, many U.S. employers sponsoring Indian-trained lawyers for permanent residence have begun seeing a new kind of I-140 Request for Evidence (RFE). The problem is not usually the lawyer’s experience, bar admission, or the substantive need for foreign law expertise. Instead, the RFE often focuses almost entirely on how AACRAO EDGE now classifies the Indian Bachelor of Laws (LLB) degree.

Sometime around 2022, EDGE updated its guidance to treat the Indian LLB as comparable in level to a U.S. bachelor’s degree rather than a U.S. first professional law degree (JD). That shift has created serious complications in employment-based second preference (EB-2) cases for foreign lawyers, particularly where earlier credential evaluations had treated the LLB as JD-equivalent. This blog explains what is happening, why USCIS is issuing RFEs, and how careful framing of the job requirements and the beneficiary’s credentials can still lead to I-140 approval.

The EDGE update matters because USCIS officers often consult EDGE to evaluate foreign educational credentials. In older cases, credential evaluations concluded that a three-year Indian LLB, earned after a prior bachelor’s degree, was equivalent to a U.S. JD. Now, the updated EDGE entry states that the Indian Bachelor of Laws “represents attainment of a level of education comparable to a bachelor’s degree in the United States,” while also noting, in the author comments, that this credential “functions as a first professional degree in law in India”. The LLB degree can be attained after three years or four years of college followed by three years of study in a law college or the LLB is also attained after five years of study in a law college after twelve years of high school. Both the three year and five-year LLB degrees have been downgraded by EDGE as being comparable to a bachelor’s degree in the US. RFEs have begun quoting only the “bachelor’s-degree-equivalent” language to argue that a beneficiary does not have the equivalent of a U.S. JD or “equivalent professional degree” that the officer believes the position requires, while ignoring the “first professional degree” function in the Indian legal system.

That EDGE language places the Indian LLB in a very different position than certain other Indian professional degrees. For example, EDGE’s entry for the MBBS states: “The Bachelor of Medicine & Bachelor of Surgery represents attainment of a level of education comparable to a first professional degree in medicine in the United States.” In other words, for medicine EDGE is willing to say directly that the foreign degree is comparable to a U.S. first professional degree. For law, it stops short, saying the LLB “represents attainment of a level of education comparable to a bachelor’s degree in the United States” and only that it “functions as a first professional degree in law in India.”

The situation for LLBs from India has remained unsettled as a result. One theoretical approach is to try to extend the “First Professional Degree” language that EDGE applies to Indian credentials in fields like medicine and dentistry and argue that it should likewise cover law. However, given the current LLB wording, that is a weak argument today and unlikely to be persuasive on its own. The qualifiers “functions as” and “in India” signal that EDGE is deliberately not saying that the LLB is comparable to a first professional law degree in the United States.

In the EB-2 context, the core legal standard is set out in the regulations at 8 C.F.R. § 204.5(k). Under that provision, an I-140 can be approved for a “member of the professions holding an advanced degree” if the beneficiary has either an advanced degree (or a foreign equivalent) or a U.S. bachelor’s degree (or a foreign equivalent) followed by at least five years of progressive post-baccalaureate experience in the specialty. The regulation explicitly recognizes that a foreign degree equivalent to a U.S. bachelor’s degree plus five years of progressive experience can satisfy the “advanced degree” requirement, even if the foreign degree itself is not equivalent to a U.S. master’s or JD.

Agency guidance interpreting 8 C.F.R. § 204.5(k) reiterates that where the foreign education is found to be only equivalent to a U.S. bachelor’s degree, the petitioner may still satisfy the advanced-degree standard by documenting at least five years of progressive post-baccalaureate experience in the specialty occupation. That guidance further explains that “progressive” experience must reflect increasing levels of responsibility, complexity, and judgment over time, rather than simply time served in an unchanging role.

This is where the EDGE shift collides with long-standing EB-2 standards. When credential evaluators previously described the LLB as JD-equivalent, many EB-2 filings for Indian-trained lawyers were framed as if the beneficiary already held a foreign professional law degree at the U.S. graduate level. With EDGE now labeling the LLB as bachelor’s-level, adjudicators are much more likely to apply the bachelor’s-plus-five-years track laid out in 8 C.F.R. § 204.5(k)(3)(i)(B). That approach is consistent with the regulation’s text, but it requires petitioners to pay close attention to how they document both education and experience.

At the same time, resources like AACRAO EDGE are not binding sources of law. Officers are ought to treat such tools as aids, but to base final determinations on the totality of the evidence and the regulatory standards in 8 C.F.R. § 204.5(k). Where a foreign degree is only at the bachelor’s level, adjudicators must examine whether the record establishes at least five years of progressive post-baccalaureate experience in the specialty, rather than allowing EDGE alone to determine the outcome.

In practice, effective responses to the Indian LLB-related RFEs have emphasized several key points. One key point is the distinction between EDGE’s “level” description and the LLB’s actual professional function. Even if EDGE now describes the LLB as comparable to a U.S. bachelor’s degree, the same entry acknowledges that it functions as a first professional degree in law in India. Petitioners substantiate this by submitting evidence that the LLB is the credential required for enrollment as an advocate with an Indian bar council, and that without it, an individual cannot practice law in that jurisdiction. Enrollment certificates and bar‑council documentation demonstrate that the LLB is, in fact, the professional law qualification in the foreign system, not a generic academic credential.

Another key point is the importance of the certified job requirements. Where the labor certification permits an LLB or an “equivalent professional degree” among the acceptable qualifications, USCIS’s role at the I‑140 stage is to determine whether the beneficiary possesses that foreign professional law degree and any other DOL‑certified minimums, not to retroactively raise the bar to a U.S. JD alone. The friction introduced by the revised EDGE language should be addressed in the EB‑2 analysis under 8 C.F.R. § 204.5(k), rather than by rewriting the Department of Labor’s minimum qualifications after the fact.

Petitioners have also increasingly grounded their arguments in the bachelor’s-plus-five-years prong of 8 C.F.R. § 204.5(k)(3)(i)(B). If USCIS treats the Indian LLB as equivalent to a U.S. bachelor’s degree, the path forward is to demonstrate that the beneficiary has at least five years of progressive post-baccalaureate experience in the relevant legal specialty. Agency guidance interpreting that provision indicates that experience must show advancement in responsibility and complexity, such as moving from junior work to leading complex matters, supervising other professionals, or managing key client relationships, rather than merely accumulating time. Detailed letters of experience from prior employers, with concrete descriptions of duties and progression, are therefore essential.

Many practitioners continue to use credential evaluations that synthesize EDGE and other authorities to explain why an LLB pursued after a prior bachelor’s degree should be understood as a first professional degree in law in terms of structure and purpose. Evaluations point out that, structurally, the combination of a prior bachelor’s degree and a three-year LLB in India is analogous to the U.S. pattern of an undergraduate degree followed by a JD, and that in both systems, the professional law degree is the prerequisite for bar admission. Even if USCIS adheres to EDGE’s bachelor’s-level characterization for level-equivalency purposes, these evaluations help show that the overall educational and professional pathway satisfies the EB-2 advanced-degree standard when combined with the required progressive experience under 8 C.F.R. § 204.5(k).

The bottom line is that the EDGE “downgrade” of the Indian LLB has changed how many I-140s for Indian-trained lawyers are argued and reviewed, but it has not closed the door on EB-2 classification. By acknowledging the updated EDGE language, highlighting the LLB’s role as a first professional law degree in India and as the gateway to bar admission, aligning job requirements with that foreign professional credential, and deliberately building a record of at least five years of progressive post-baccalaureate experience within the framework of 8 C.F.R. § 204.5(k), employers can continue to obtain I-140 approvals for Indian-trained attorneys despite this new wave of RFEs.

Finally, employers petitioning for H-1B classification on behalf of Indian trained lawyers with an LLB degree should also structure the job requirements as a minimum of a bachelor’s degree rather than a JD degree. The Indian trained lawyer should be able to qualify for H-1B classification as it meets the minimum of a bachelor’s degree to qualify as a specialty occupation. However, many Indian lawyers with LLB degrees have also graduated with a Master of Laws (LLM) degree from a US law school. An Indian lawyer with an LL.M should be able to qualify under EB-2 by virtue of this degree as well as for H-1B classification. Our blog deals more with the lawyer who is being sponsored by a US employer with only an Indian LLB degree and the pitfalls associated with its unfortunate downgrade.

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

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The Diplomatic Exception to Birthright Citizenship: Paths to Permanent Residence and Naturalization

Navigating the Downgrade of the Indian LL.B in Green Card Sponsorships for Lawyers

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