Cyrus Mehta

Trump’s Latest Attack on Birthright Citizenship Is Still Blatantly Unconstitutional

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Following defeat in the Supreme Court in Trump v. Barbara on constitutional grounds of a presidential order limiting birthright citizenship, President Trump signed two new executive orders on August 6, 2026, to limit birthright citizenship for those he deems not to “fall within the rule of birthright citizenship announced by the Supreme Court”: 

  • Continuing to Protect the Meaning and Value of American Citizenship, which “identifies, non-exhaustively, and prescribes action concerning certain categories of children of aliens who do not fall within the rule of birthright citizenship as announced by the Supreme Court”; and
  • Ending Birth Tourism, which aims to “prevent the entry into the United States of, or the granting of any visa or other travel authorization to, any alien entering or attempting to enter the United States for the purpose of engaging in birth tourism; revoking the visa or travel authorization and permanently barring entry of any alien who enters or attempts to enter the United States for the purpose of engaging in birth tourism; denial of entry to, or removal of, any alien who previously engaged or plans to engage in birth tourism; or other appropriate action against entities, organizations, or individuals, within or outside of the United States, responsible for facilitating or enabling birth tourism in any manner.” 

The first order identifies several categories of persons it asserts are not covered by birthright citizenship, including those with a parent who is an “alien enemy,” such as a member of a designated Foreign Terrorist Organization or a Specially Designated Global Terrorist; those with a parent who is a foreign government employee, including ambassadors, certain embassy or consular employees, officials of foreign governments, or employees of international organizations with immunity; those whose parent engaged in a commercial transaction or fraudulent activity to obtain or access birthright citizenship, including arrangements to ensure that the mother or a surrogate is present in the United States or a U.S. territory to give birth; and those born in a U.S. territory or territorial waters where citizenship is not conferred by federal statute.

Even if a child is born in the US to any member of a designated terrorist organization, he or she is still a US citizen under the 14th amendment. A member of a designated terrorist organization is still subject to US law. They are not like children of members of an invading army who have seized control of US territory thus preventing the exercise of US jurisdiction. The child born in the US to a person who may have committed acts of terrorism is still a US citizen. The sins of the parent should not be passed onto a new born child.

Unless the parent personally enjoys diplomatic or comparable immunity, however, the child should remain a U.S. citizen at birth. The order is ambiguous because it is unclear whether it applies only to employees who themselves possess immunity, or more broadly to any employee of an international organization that enjoys institutional immunity. If the latter interpretation were adopted, the child of a rank-and-file UN employee, such as a janitor who is fully subject to U.S. law, could be denied birthright citizenship—an absurd result that underscores the order’s overbreadth.

A child born in the United States remains a U.S. citizen even if the parent entered through a commercial arrangement or so-called birth tourism. Trump v. Barbara covers birth tourism as well, a point underscored by Justice Alito’s dissent criticizing that practice. Even if the child is born through a surrogate in the US, the child is a US citizen. If the surrogate is a US citizen herself, that should remove any doubt regarding the child’s US citizenship.

Children born in territory where citizenship is not conferred by federal statute may not claim birthright citizenship. This seems to be American Samoa, and it is true that children born in American Samoa are not conferred US citizenship.

In the second order “Birth tourism” is defined as “(a) the entry of any foreign national into the United States via a nonimmigrant visa for the purpose of giving birth on American soil; or (b) any effort by any foreign national to facilitate the entry of any foreign national into the United States via a nonimmigrant visa for the purpose of giving birth on American soil.” The order on birth tourism states that U.S. immigration laws “establish discrete categories of temporary nonimmigrant visas to allow foreign visitors into the United States for study, exchange, temporary employment, tourism, and other transitory activities that are now exploited by birth tourism operators. Participants in birth tourism schemes abuse these categories to establish a permanent foothold in the United States by securing the advantage of citizenship for their children and then potentially for themselves.”

Apart from being unconstitutional, the second order will sow confusion and fear well beyond the narrow category of people it purports to target. A long-term nonimmigrant who has been living lawfully in the United States in F-1, H-1B, L-1, O-1, or other temporary status, and who briefly travels abroad before returning while pregnant, could be wrongly suspected of entering for the impermissible purpose of giving birth. Consular officers and CBP inspectors may feel pressured to probe pregnancy, medical plans, family intentions, or future immigration possibilities, even where the person’s primary purpose remains study, employment, business, or another lawful activity. The order thus risks turning ordinary visa adjudications and admissions inspections into intrusive inquiries into reproductive status and motive, with unpredictable consequences for lawful visa holders, their employers, universities, and families. It may also deter pregnant nonimmigrants from traveling, seeking medical care, or candidly answering routine questions, because any mention of childbirth in the United States could be misconstrued as evidence of “birth tourism.” In this way, the order operates not merely as an attack on birthright citizenship, but as a dragnet that can chill lawful travel and destabilize settled lives even before any court strikes it down.

Both orders are blatantly unconstitutional and should meet the same fate as the initial executive order rejected in Trump v. Barbara. The Fourteenth Amendment does not permit the President to create disfavored categories of children born on U.S. soil and then strip them of citizenship because of their parents’ status, motives, associations, or manner of entry. Nor may the government evade the constitutional command by recasting birthright citizenship as a privilege to be withheld from children whose parents it labels undesirable. These orders would invite arbitrary enforcement, chill lawful travel, and unsettle the citizenship of children whom the Constitution places beyond presidential discretion. Courts should therefore reject this renewed attempt to narrow birthright citizenship and reaffirm the simple rule that has long anchored constitutional citizenship: with narrow exceptions, a child born in the United States and subject to its jurisdiction is a citizen at birth.

 

Cyrus Mehta & Kaitlyn Box*

ICE Targets Noncitizens at Domestic Airports Even When They Are Authorized to Remain

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, reports have abounded of increased ICE arrests at domestic airports. Arrests occurred at airports in at least 15 different states, which some of the impacted noncitizens traveling only on domestic flights. Although airport ICE arrests are not a new phenomenon, particularly during the Trump administration, the categories of noncitizens being targeted has broadened dramatically. In the past individuals with a removal order or a criminal history might have been vulnerable to apprehension by ICE at airports, but individuals who were authorized to remain in the U.S., even if they did not have a valid nonimmigrant status, generally faced a low risk of enforcement during domestic travel. 

The new wave of arrests at airports, however, has primarily targeted noncitizens whose nonimmigrant status has expired. Many of the noncitizens who were arrested, however, had pending adjustment of status,  asylum applications or a request to extend or change nonimmigrant status, which allows them to remain lawfully in the United States. Some of the impacted noncitizens reportedly had no criminal history and were in possession of valid Employment Authorization Documents (EADs) and/or Advance Parole (AP) documents at the time of their detention. There does not appear to be any particular policy or rule change driving this pattern of increased apprehension at airports. 

A noncitizen who has a pending adjustment of status or asylum application and is, therefore, in a period of authorized stay is not necessarily exempt from arrest or detention. INA § 287(a)(2) provides ICE the authority to arrest “to arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest…” INA § 236(a) provides that: “On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Ordinarily, however, a noncitizen who is in a period of authorized stay is unlikely to be a priority for detention. Individuals who are eligible for a benefit like asylum or adjustment of status may not be removable. Detaining noncitizens cannot be removed only contributes to the already lengthen immigration court backload, and is an inefficient use of government resources. 

Likewise, DHS may initiate removal proceedings under INA § 237(a)(1)(B) against a noncitizen whose nonimmigrant status has expired, even if that individual  has a pending adjustment of status application. Sure enough, this individual may be able to ultimately rely on the pending adjustment of status application as a defense against removal proceedings before an Immigration Judge. But in the meantime, the noncitizen must endure the burden of  being placed into removal proceedings, including the risk of detention, disruption to employment and family life, and the expense and uncertainty of defending against removal despite having a pending application that may ultimately provide a path to lawful permanent residence.  

Given the increased risk of arrests in airports, noncitizens who have an expired I-94 are advised to avoid travel domestically, even if they are in a period of authorized stay. An individual who filed an employment-based adjustment of status application which is still pending because his priority date retrogressed might be a target for apprehension by ICE if he did not maintain his underlying H-1B status and his I-94 has now expired. Similarly, those who did not extend their nonimmigrant status, but have a pending marriage-based adjustment of status application or asylum application, may be vulnerable to detention at airports. A noncitizen who has an expired green card and has filed a pending I-751 petition may be unlikely to be targeted, however, if she has a valid I-551 stamp as proof of her conditional LPR status. 

Given this recent uptick in ICE arrests at airports, individuals who do not have valid nonimmigrant status but are in a period of authorized stay face a serious risk of apprehension when they travel, even domestically. Noncitizens traveling within the United States should carry proof of their status or authorization to remain, such as an unexpired Form I-94, green card, I-551 stamp, Employment Authorization Document, Advance Parole document, or receipt notice for a pending application, in the event of an encounter with ICE. But the burden should not fall on noncitizens who are following the rules to avoid routine travel out of fear that they may be detained. 

The chilling effect may extend even to U.S. citizens, who may fear being mistaken for noncitizens and questioned about their status. U.S. citizens traveling domestically are required only to present TSA-accepted identification, which can include a state-issued driver’s license or ID. They should not feel compelled to carry a U.S. passport or other proof of citizenship to protect themselves from immigration enforcement encounters.

Directing enforcement resources toward people who are authorized to remain in the United States imposes significant costs on employers, families, and the immigration system without any clear corresponding government benefit. More troublingly, it transforms ordinary spaces like airports into sites of immigration surveillance and intimidation, fostering fear and police state-like conditions for noncitizens whose only vulnerability may be an expired I-94 coupled with a pending application. Americans should not tolerate the Trump administration’s decision to wield immigration enforcement in this manner against people who have complied with the law and are awaiting adjudication of their applications. A system that detains individuals who are authorized to remain does not promote public safety or the rule of law; it undermines both by using fear as an instrument of governance.

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

Cyrus Mehta & Kaitlyn Box*

Blanche v. Lau: The Supreme Court Has Degraded the Rights of Lawful Permanent Residents

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By Cyrus D. Mehta and Kaitlyn Box*

On April 23, 2025, the Supreme Court heard oral argument in Blanche v. Lau, a case that confronted the issue of whether the government, in seeking to remove a lawful permanent resident (LPR) who was paroled into the United States on the basis that he committed a crime involving moral turpitude (CIMT) under INA 212(a)(2), must prove that it possessed clear and convincing evidence of the crime at the time of the LPR’s most recent reentry.

On June 23, 2026, in a 6–3 decision, the Supreme Court answered that question in the government’s favor – and in doing so, it sharply degraded the statutory and practical protections that Congress intended LPRs to enjoy when they return from trips abroad. The Court has now authorized the government to do precisely what the Second Circuit in Lau v. Bondi warned against: parole a returning LPR based on suspicion, confiscate the green card, wait for a conviction, and then “travel back in time” to satisfy its heavy burden after the fact.

The facts in Blanche v. Lau illustrate the stakes. Mr. Lau, an LPR who had traveled outside the U.S. with a pending charge of third-degree trademark counterfeiting in New Jersey before being paroled into the country in 2012, argued that there is a presumption LPRs are already admitted when they reenter the U.S. after travel abroad. The government, on the other hand, asserted that Lau falls within an exception to this presumption because he had already “committed” a crime at the time of his reentry, although he had not yet been convicted.

Under INA 101(a)(13)(C) an LPR shall not be regarded as seeking admission in the US unless, among other things, the LPR has committed an offense identified in section 212(a)(2), which includes crimes involving moral turpitude or drug offenses. Congress set a clear default: LPRs returning from abroad are not to be treated as seeking admission, unless the government can show, in one of a few narrow circumstances, that this protection does not apply.

Justice Thomas, writing for the 6–3 majority, took a narrow, text-focused view of the statute. In his reading, INA 101(a)(13)(C) does not impose any “clear and convincing evidence” requirement at the border itself. Instead, it is enough that the government ultimately proves in removal proceedings, by clear and convincing evidence, that the LPR fell within a 212(a)(2) exception and was properly treated as seeking admission.

The majority emphasizes administrative practicality and continuity with past practice. Justice Thomas stresses that border officers routinely act on incomplete information, and he rejects the Second Circuit’s insistence that DHS must already possess clear and convincing evidence at the exact moment of reentry. For the Court, the statute regulates the government’s burden in removal proceedings, not the evidentiary threshold for front-line CBP decisions.

According to the majority, nothing in the INA’s text or structure forbids DHS from initially classifying a returning LPR as an applicant for admission based on an indictment or other non-conviction information, so long as the government later carries its heavy burden in court. In the majority’s view, this approach preserves the government’s flexibility to police the border while still requiring clear and convincing proof before an LPR is actually ordered removed. One striking omission in Justice Thomas’s majority opinion is any engagement with Woodby v. INS, 385 U.S. 276 (1966), the very case in which the Court itself articulated the “clear, unequivocal, and convincing” standard in deportation proceedings. Woodby is not merely background noise; it is the foundational precedent that explains why Congress built a heavy evidentiary burden into removal of lawful residents. The majority’s silence on Woodby is telling: by ignoring that history, it becomes easier to recast the clear-and-convincing standard as a backward-looking formality in court, rather than a real constraint on how and when the government may strip an LPR of the protections of admission at the border.

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

“And my concern is that I could actually see a world in which [1] would be in the government’s interest. And it’s a situation in which people who are lawful permanent residents who have green cards leave the country and, when they return, based on a suspicion or even an indictment that’s in the government’s control, they flag this person as being returning under parole as opposed to lawful admission. They take this person’s green card, which then makes it much, much harder for this person to actually live and work and continue in their life here in the United States, perhaps so much so that this person self-deports because it’s really, really difficult without a green card to operate in this country. So you could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration.”

Justice Jackson’s dissent in Blanche v. Lau bears out exactly this concern. She squarely recognizes how dangerous it is to allow officers to strip an LPR of the presumption of admission based on allegation or indictment, then let the government justify that downgrade years later once a conviction is in hand. Unfortunately, the majority brushed those concerns aside.

If the Supreme Court had sided with the Second Circuit and with Lau, it would have held that an LPR who is accused of committing a crime and paroled into the U.S. is still treated as already admitted unless the government can clearly and convincingly show, at the time of reentry, that a 212(a)(2) exception applies. Instead, the Court has blessed a regime in which the government can downgrade an LPR now and meet its heavy burden later. It is hard to overstate how much this undermines the security of LPR status at the border.

The Supreme Court’s ruling is tailor-made for abuse by any administration that is hostile to immigrants and LPRs. By taking the position that an LPR is “seeking admission” rather than arguing that the individual is deportable, the government can more easily pursue removal. In order to remove an LPR who was admitted, the government would have to show that the individual had been “convicted of a crime involving moral turpitude committed within five years” of the admission. The government must have clear and convincing evidence in order to determine that an LPR is seeking admission after having committed a crime under INA 212(a)(2), and that burden should only be met if the LPR has actually been convicted of the crime involving moral turpitude, or has admitted to the elements of the crime. Blanche v. Lau now allows the government to pretend that this burden can be fulfilled retroactively.

An LPR can voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K–, 7 I&N Dec. 594 (BIA 1957).

The Board of Immigration Appeals also held in Matter of Guevara, 20 I&N Dec. 238 (1990) that an alien’s silence alone does not provide sufficient evidence under the standard in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. This has also been more recently affirmed by the Board of Immigration Appeals in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011).

As the late Justice Ginsburg observed in Vartelas v. Holder, 566 U.S. 257 (2012), “[2]rdinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.” Piepowder, or “dusty-feet courts,” as Justice Ginsburg’s decision notes, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in medieval Europe while the merchants’ feet were still dusty.

Justice Ginsburg’s observation was not a historical curiosity; it was a pointed warning. Our immigration system at the border is not supposed to devolve into ad hoc mini-trials run by front-line officers, improvising accusations and extracting admissions from tired travelers. Her admonition should have restricted a CBP officer’s ability to simply suspect that an LPR has committed a crime, as opposed to relying on a conviction or a properly obtained admission to the essential elements of the crime. The CBP officer should also not be able to extract a confession.

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

The Supreme Court majority has now rejected that common-sense, text-based reading. It has effectively authorized the very “dusty-feet” border justice that Vartelas rejected, and then gone a step further: it has allowed the government to time-shift its burden. Under Blanche v. Lau, the government may:

Treat a returning LPR as seeking admission based on an indictment or suspicion, without clear and convincing proof that the person has “committed” a qualifying offense at the moment of entry.

Parole the LPR into the United States, confiscate the green card, and consign the person to years of “immigration limbo” with only a temporary document.

Wait for a conviction or additional evidence, and only then, at a later removal hearing, attempt to satisfy the clear-and-convincing standard – retroactively justifying the decision that was made at the border long ago.

This is the “time travel” that Justice Jackson’s dissent forcefully criticizes. The heavy burden that is supposed to protect LPRs at the very moment their status is being downgraded is no longer doing that work. Instead, the burden has been moved into the future, where it becomes a mere after-the-fact rationalization.

In other words, the majority has converted Congress’s protective presumption into a hollow shell. Justice Ginsburg’s warning against turning returning LPRs into suspects standing before “pied-powder courts” and “dusty-feet courts” has gone unheeded. Blanche v. Lau makes it easier for the government to suspect first, punish immediately by stripping the LPR of their status protections and green card, and only later build the evidentiary record needed to defend that choice.

Justice Jackson’s dissent is more faithful to the statutory text, to Vartelas, and to basic principles of fairness. She understands that the timing of the government’s burden is not a technicality – it is the whole ballgame. If the government can meet its burden years later, based on evidence that did not even exist at the time of entry, then the statutory protection for returning LPRs is illusory. The dissent rightly insists that Congress meant what it said: LPRs “shall not be regarded as seeking an admission” unless and until the government can actually demonstrate that an exception applies.

By allowing the government to meet its heavy burden only after paroling the LPR, waiting for the conviction, and then using that conviction to retroactively justify treating the LPR as seeking admission, the Supreme Court has indeed authorized a form of time travel – and with it, a profound degradation of the rights of lawful permanent residents at our borders.

 

Cyrus Mehta

USCIS Withdraws Appeal in Mukherji: What Changes – And What Does Not?

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By Cyrus D. Mehta and Manjeeta Chowdhary

In our previous blog, we discussed the decision of a district court in Nebraska in Mukherji v. Miller, which relied on Loper Bright principles to overturn an EB-1A denial based on USCIS’s use of the “final merits determination” framework. As explained in that post, the court questioned whether USCIS could lawfully impose an adjudicatory structure that was not expressly grounded in statute or regulation. USCIS had appealed that decision to the U.S. Court of Appeals for the Eighth Circuit. Brian Green, who was lead counsel in Mukherji v. Miller has posted that USCIS has withdrawn its appeal.

While the withdrawal of the appeal is noteworthy, its practical significance should not be overstated. The decision does not necessarily signal an immediate change in how USCIS adjudicates extraordinary ability petitions.

To briefly recap, the district court in Mukherji held that USCIS improperly denied the petitioner’s EB-1A petition by relying on a second evaluative step—the so-called “final merits determination”—that, according to the court, was not properly adopted through notice-and-comment rulemaking under the Administrative Procedure Act (APA). Rather than continuing to litigate the matter before the Eighth Circuit, USCIS has now chosen to withdraw its appeal, leaving the district court’s ruling intact in that individual case.

The withdrawal of the appeal is undoubtedly significant, but it is equally important to understand what it does not mean.

First, the withdrawal does not create a binding precedent beyond the district court case itself. Had the Eighth Circuit issued a decision affirming the lower court, the ruling may have carried broader precedential value within that jurisdiction and potentially influenced courts elsewhere. By withdrawing the appeal, USCIS avoided an appellate ruling on the merits.

Second, USCIS has not rescinded its long-standing adjudicatory approach to extraordinary ability petitions, and it does not appear that the government withdrew the appeal because it plans to rescind the final merits determination policy. USCIS is still likely to continue adjudicating EB-1A and EB-1B petitions using the familiar framework associated with the Ninth Circuit decision in Kazarian v. USCIS, including a broader evaluation of whether the evidence collectively demonstrates sustained acclaim and whether the beneficiary has risen to the top of the field. Petitioners should therefore continue preparing filings with the expectation that a holistic review will occur. Indeed, the USCIS has been denying EB-1A petitions even where the petitioner has met three or more of the ten criteria for determining extraordinary ability. 

At the same time, it would be difficult to ignore the broader significance of USCIS’s decision not to pursue the appeal. One possible explanation is institutional caution. If USCIS had proceeded and lost before the Eighth Circuit, it risked creating an unfavorable appellate decision concerning the agency’s authority to impose adjudicatory standards not expressly rooted in regulation. The decision to withdraw the appeal may therefore reflect an effort to preserve flexibility while avoiding a precedential rule with wider consequences, and to allow the USCIS to deny meritorious EB-1A cases with impunity under the final merits determination.

For individuals pursuing extraordinary ability classifications, the practical takeaway is measured rather than dramatic.  While Mukherji eliminated the “final merits determination” in that case, it does  not broadly eliminate the “final merits determination” in all cases,  nor does it automatically alter how petitions will be adjudicated tomorrow. However, the case may provide an additional point of discussion in litigation involving denials where USCIS appears to impose expectations untethered from the regulatory text. It also serves as a reminder that courts may increasingly scrutinize agency-created frameworks in the post-Loper Bright era. It is surprising that the USCIS withdrew its appeal in the Eight Circuit, which is conservative, which means that after Loper Bright the final merits determination is vulnerable in any federal court. 

Probably the DHS may want to codify the “final merits determination” through a formal regulation, which may fortify it against challenges in future litigation. Even so, such a rule will not be immune from challenge under Loper Bright as there is nothing in the INA that authorizes a subjective  second step analysis.

Whether Mukherji ultimately proves to be an isolated district court decision or the beginning of a broader reassessment of extraordinary ability adjudications remains to be seen. What is clear, however, is that USCIS’s withdrawal of its appeal leaves unresolved—but very much alive—the broader debate over the limits of agency authority in immigration adjudications that are not tethered to the INA, particularly in the post-Loper Bright landscape.

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

Cyrus Mehta & Kaitlyn Box*

ICE Presence at Domestic Airports Blurs the Line Between Airport Security and Immigration Enforcement 

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By Cyrus D. Mehta and Kaitlyn Box*

In recent weeks, President Trump has dispatched ICE agents to some major airports, purportedly to fill in for TSA workers who are furloughed as a result of the DHS shutdown. Tom Homan, the Trump administration’s border czar, has hinted that ICE agents may remain in airports even after TSA agents return to work. This measure has raised serious concerns among immigration advocates and immigrant communities. Fears abound that ICE agents may be exceeding the scope of normal TSA operations, and may ask travelers who appear to be non-U.S. citizens or present documents such as foreign passports immigration status related questions, or target them for enforcement measures. 

The ICE presence in airports may be unsettling even for travelers who are in a lawful immigration status. Many undocumented individuals fly domestically within the United States, however, as do individuals whose immigration status may be more ambiguous – because, for example, they are in a period of authorized stay after having filed an adjustment of status or asylum application. If targeted by ICE agents in airports for enhanced scrutiny, these individuals could be at risk for detention or deportation. 

This policy is just the latest in a series of Trump administration measures aimed at thwarting immigration and facilitating removal. The Trump administration has also adopted an extremely broad interpretation of the immigration laws and  regulations in order to expand the categories of noncitizens who can be detained without bond. In a reversal of longstanding policy, the Board of Immigration Appeal (BIA) has reinterpreted INA 235(b)(2)(A) and INA 236(a) to hold that noncitizens who are present in the United States after having entered without inspection (EWI) are subject to detention without bond, whether or not they separately “seek admission”. The Eighth Circuit in Avila v. Bondi recently upheld the BIA’s interpretation in Matter of  Yajure Hurtado, holding that “the structure of § 1225(b)(2)(A) does not indicate that ‘seeking admission’ is a separate requirement for detention under the statute”. The court further found  that “because the text does not place such emphasis on “seeking admission,” and since the phrase means virtually the same thing as ‘applicant for admission,’ in the context of the statute the two phrases are synonymous”. In its decision, the Eighth Circuit cited the Fifth Circuit’s decision in Buenrostro-Mendez v. Bondi, which held that noncitizens who entered without inspection are ineligible for bond.

The ICE presence at airports will result in more vulnerable noncitizens getting caught up in the ever-expanding dragnet for detention and removal. A person who is in removal proceedings with a meritorious application for relief such as cancellation of removal may get detained without bond if they encounter an ICE officer at an airport if they initially entered the country without inspection. Likewise, one who has a pending adjustment of status application, but whose nonimmigrant status has expired could also be amenable to be placed in removal proceedings. 

Even if the initial objective is for ICE agents to assist TSA officers during the shutdown, this policy will blur the line between airport security, which is paramount, and immigration enforcement that is not required at domestic airports. ICE officers may be prone to questioning the immigration status of passengers when the role of TSA is to ensure that those boarding planes have the necessary identification documents. Even US citizens and those residing in the US lawfully could be suspected of being in the US illegally, resulting in needless distractions from TSA’s mission to maintain airport security.  While the stated purpose of ICE presence at airports is to facilitate the process of getting people through TSA lines, ICE is an agency that was created with a different mandate, which is to identify potential immigrants who are not in the country legally.  

As a result of the ICE presence, people may be deterred from flying even domestically especially those who have been targeted by the Trump administration for immigration enforcement. President Trump’s post on Truth Social has not helped to allay fears as he said that agents would be doing “security like no one has ever seen before, including the immediate arrest of all Illegal Immigrants who have come into our Country, with heavy emphasis on those from Somalia.” ICE agents have perpetrated abuses against American citizens by breaking down doors of homes and shattering the windscreen of cars in pursuit of apprehending noncitizens who are allegedly not in the US legally. ICE agents have also shot and killed Americans Renee Good and Alex Pretti, who were protesting against their activities. ICE presence at airports is bad news, which will further create the conditions for a police state in America!  

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

 

Cyrus Mehta

AC21 Trap for H-1B Workers Caught in the Green Card Backlogs and Who Have Changed Jobs

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By Cyrus D. Mehta and Manjeeta Chowdhary*

H-1B status is typically limited to six years in up to three-year increments. One statutory exception is § 104(c) of the American Competitiveness in the 21st Century Act (AC21) (8 CFR § 214.2(h)(13)(iii)(E)), which permits three-year extensions for workers with an approved I-140 petition while no immigrant visa number is available. The worker in H-1B status may change employers and continue to obtain AC21 § 104(c) three-year extensions so long as an approved I-140 remains in place and no immigrant visa number is available. This is the prevailing situation for many EB-2/EB-3 workers in backlogged categories—often for years—while they lawfully maintain status through successive § 104(c) extensions and employers. However, once the priority date becomes current, § 104(c) can no longer be used to seek extensions because a visa number is now available. 

Another statutory exception, AC21 § 106(a) (8 CFR § 214.2(h)(13)(iii)(D)) authorizes one-year H-1B extensions when a PERM labor certification or I-140 immigrant petition has been filed at least one year before the final of the 6th or final year in H-1B status. The worker who is ineligible under AC21 §104(c) can rely on this provision, § 106(a), as the underlying labor certification supporting the I-140 petition was filed long before the end of the sixth year. 

The problem arises when an H-1B worker who has changed employers finds that neither provision fits. Once a visa number becomes available, § 104(c) no longer supports three-year extensions by definition (its protection ends when a visa is immediately available), and the H-1B worker typically cannot adjust status through the I-140 petition of the prior employer because the underlying job offer no longer exists.  At the same time, § 106(a)—which permits a one-year extension as the underlying labor certification was filed more than one year prior to the sixth year — may also be unavailable if the priority date has become current and the H-1B worker has not yet filed for adjustment of status or sought an immigrant visa within one year of visa availability.

This is the AC21 trap for H-1B workers who have changed jobs. At the moment a visa number becomes available, the H-1B worker cannot seek a three-year extension and may also not be able to seek a one-year extension as they cannot use the prior employer’s I-140 petition to adjust status and thus extend H-1B status under § 106(a). 

 8 CFR § 214.2(h)(13)(iii)(D)(10) provides:  

 An alien is ineligible for the lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D) of this section if the alien is the beneficiary of an approved petition under section 203(b) of the Act and fails to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability.  If the accrual of such 1-year period is interrupted by the unavailability of an immigrant visa, a new 1-year period shall be afforded when an immigrant visa again becomes immediately available. USCIS may excuse a failure to file in its discretion if the alien establishes that the failure to apply was due to circumstances beyond his or her control. The limitations described in this paragraph apply to any approved immigrant visa petition under section 203(b) of the Act, including petitions withdrawn by the petitioner or those filed by a petitioner whose business terminates 180 days or more after approval.

This means that if an individual’s I-140 immigrant petition has been approved and a visa number becomes available for that person’s preference category and country of chargeability, one has only one year to take the next step, either file an application for adjustment of status while in the United States, or apply for an immigrant visa through consular processing abroad. If one fails to apply within that one-year period, one becomes ineligible for further H-1B extensions beyond the six-year limit under the “lengthy adjudication delay” rule. However, USCIS may, in its discretion, excuse a failure to apply within that one-year period if one establishes that the failure was due to circumstances beyond one’s control. 

 Thus, 8 CFR § 214.2(h)(13)(iii)(D)(10) provides an exception if the H-1B worker can demonstrate that the failure to file was due to circumstances beyond his or her control. When a H-1B worker changes employers and cannot file for adjustment of status because the new employer has not initiated PERM labor certification or a pending PERM remains unapproved, he or she may be able to establish “that the failure to apply was due to circumstances beyond his or her control.” In seeking a favorable exercise of discretion, the H-1B worker would explain that it was impossible to apply for adjustment of status within the one-year period because the new employer’s PERM labor certification was still pending, and an adjustment of status can only be filed once the labor certification is approved—followed by the concurrent filing of an I-140 and adjustment of status while recapturing the priority date from the prior employer’s approved I-140. It can also be further argued that a PERM labor certification can take between 18 to 24 months to get approved and this can also be used to demonstrate that the failure to file for adjustment of status was beyond the control of the alien. However, the USCIS’s decision in such cases is discretionary, and approval is not guaranteed. Of course, the H-1B worker can also extend H-1B status based on recaptured H-1B time spent outside the US before invoking § 106(a).  In the meantime, if the new employer’s PERM labor certification comes through, the worker will be eligible to file an adjustment of status, thus facilitating the extension under § 106(a). 

The AC21 framework was designed to preserve status for professionals navigating the lengthy backlogs in the employment-based green-card process. Yet, in today’s fluid labor market, § 104(c) and § 106(a) do not always align with career mobility, especially with those who are caught in the lengthy green card backlogs. 8 CFR § 214.2(h)(13)(iii)(D)(10) serves as a warning that timely action must follow or eligibility for further § 106(a) one-year extensions may lapse, thus causing the H-1B worker to fall into the AC1 trap where they can neither rely on § 104(c) nor § 106(a). An H-1B worker who has changed jobs and obtained a three-year extension under § 104(c) cannot hope to indefinitely seek three-year H-1B extensions. They must have the new employer to timely start a new labor certification so that they can apply for adjustment of status within one year of the visa becoming available. 

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

David Isaacson

The Exception that Disproves the Rule: How Matter of K-E-S-G-‘s FGM Exception Exposes Its Incoherence

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In its recent decision in Matter of K-E-S-G-, 29 I&N Dec. 245 (BIA 2025), the Board of Immigration Appeals (BIA) held that “a particular social group defined by the alien’s sex or sex and nationality, standing alone, is overbroad and insufficiently particular to be cognizable under the INA” as a basis for asylum. Matter of K-E-S-G-, 29 I&N Dec. at 152. Several organizations have already explained why this decision is an unlawful attack on refugee women that will have horrible consequences. In this blog post, rather than duplicating that work, I want to focus on why an exception that the BIA made in multiple footnotes of K-E-S-G- for cases relating to female genital mutilation (FGM) actually makes clear that the entire decision is logically incoherent.

The BIA in K-E-S-G- rejected the claim of the Salvadoran asylum applicant in that case, and seemingly attempted to pre-empt the asylum claims of all other women who assert that they face persecution due to their gender and nationality (absent other factors). In footnotes 7 and 8 of its decision, however, the BIA states that K-E-S-G- “does not involve a claim of female genital mutilation and our holding in this case does not affect the viability of such claims in the future” and on this basis distinguishes Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007), which recognized a particular social group of Somali females in the context of a claim based on FGM.

The BIA’s exception for FGM was presumably made because of case law such as Hassan, and perhaps because of a more general realization that it would be facially ludicrous to deny that women subjected to FGM have faced persecution—although even if the BIA had taken that ludicrous step, Court of Appeals cases like Hassan and Mohammed v. Gonzales, 400 F.3d 385 (9th Cir. 2005), would exist whether the BIA acknowledged them or not. Upon further analysis, however, this exception for asylum claims based on FGM exposes why the overall holding of K-E-S-G- does not make sense.

The BIA says of Hassan that the Eighth Circuit there “held that “Somali females” was a particular social group because of the prevalence—98 percent—of female genital mutilation in the country.” Matter of K-E-S-G-, 29 I&N Dec. at 151 n.7. The implication seems to be that, according to the BIA, other forms of persecution of women are not so statistically prevalent, and that women in other contexts thus cannot constitute a particular social group even if they can constitute a particular social group in the FGM context in a country where the prevalence of FGM is so high. (The BIA does not make entirely clear how it would analyze an FGM case involving a lower prevalence than 98%, although footnote 8 of K-E-S-G- broadly exempts FGM claims from the decision’s holding without reference to a numerical cutoff.)

Asylum, however, does not require that persecution have a 98% likelihood, or anything close to that. The statutory standard under 8 U.S.C. § 1158(b)(1)(A) and 8 U.S.C. § 1101(a)(42)(A) is, instead, a well-founded fear of persecution. The Supreme Court clarified many years ago in INS v. Cardoza-Fonseca, 408 U.S. 421 (1987), that “to show a “well founded fear of persecution,” an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country.” Rather, “a showing of a ten percent likelihood of persecution could suffice to establish that an applicant’s fear is well-founded.” Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir. 2006) (citing Cardoza-Fonseca, 408 U.S. at 431). Ordinarily, of course, one cannot quantify a likelihood of persecution with statistical certainty, but the basic point remains: the chance of persecution required in order to support an application for asylum is much, much lower than the 98% suggested by the evidence in Hassan.

Given this, however, the BIA’s basis for distinguishing Hassan and FGM while attempting to maintain an otherwise broad rule against gender as a particular social group is logically unsustainable. Under Cardoza-Fonseca, the outcome in Hassan should have been the same if only 10% of women in Somalia were subject to FGM, if that implied a 10% probability that a particular asylum applicant would be so subject by virtue of being a woman. The same is logically true of any other form of mistreatment, sufficiently severe to qualify as persecution, that a woman is exposed to with a 10% or greater likelihood, in a particular country, by virtue of being a woman—keeping in mind, again, that statistical certainty is usually not obtainable in these matters.

Since the regulations at 8 CFR 208.13(b)(1) and 8 CFR 1208.13(b)(1) provide that a victim of past persecution benefits from a presumption of a well-founded fear of future persecution, there will be many cases in which it will not make sense to require a (previously persecuted) asylum applicant to make any statistical showing at all. Moreover, a conflation of likelihood of persecution with the particularity of a particular social group is potentially problematic to begin with, since the evaluation of a particular social group and the evaluation of likelihood of persecution are supposed to be different stages of the asylum analysis. But even if we accept that an approximate statistical assessment may be relevant, as the BIA indicates in footnote 7 of K-E-S-G-, we must accompany that acceptance with the realization that under Cardoza-Fonseca, the relevant statistical threshold is nowhere near the 98% at issue in Hassan. If, as the BIA has implied in footnote 7, persecution of 98% of women in a particular country by means of FGM mandates their acceptance as a particular social group, then significantly lower rates of persecution of women ought to do so as well.

Even apart from the issue of the percentage chance of harm required to make out a claim, the BIA’s acknowledgement of an exception for the 98% prevalence of FGM in Somalia according to Hassan exposes another flaw in its logic. As the Court of Appeals for the Second Circuit explained in Ordonez Azmen v. Barr, 965 F.3d 128 (2d Cir. 2020), assessments of a particular social group must be done on a case-by-case basis, with reference to the record evidence pertaining to a particular country. The BIA has not overruled the case law relied upon by the Second Circuit in Ordonez Azmen (and perhaps could not do so without itself being overruled by a court), and yet it seems, in K-E-S-G-, to be trying to suggest that a social group of all women of a particular nationality can never be a particular social group, regardless of the record evidence regarding that particular country. In addition to this proposition being inconsistent with the Second Circuit’s decision in Ordonez Azmen (and thus legally non-viable within the Second Circuit or other Circuits that have held similarly), however, this proposition is falsified by the BIA’s own FGM exception. Apparently, the BIA accepts that the record in Hassan revealed such widespread persecution of women in Somalia that asylum was warranted in that case. But the BIA has no logical basis for categorically ruling out the possibility that the same could be true of some other country in which a sufficient number of women face some other form of persecution.

The BIA appears to have avoided immediate judicial review of its logically incoherent decision in K-E-S-G- by remanding the specific case to the Immigration Court for further consideration of an application for cancellation of removal, meaning that there is currently no final order of removal regarding which a petition for review could be filed under 8 U.S.C. § 1252. It is this author’s view, however, that lawyers handling other cases that present the possibility of a PSG based on gender should not merely accept the BIA’s decision in K-E-S-G- at face value, but should preserve the issue for future challenge on a petition for review, while of course also asserting any other PSGs or other protected grounds that remain available even under the BIA’s current view of the law. When the issue does come before the various Court of Appeals, some or all of those courts may recognize that the BIA’s attempt to cabin gender-based claims to one particular form of persecution, and an overly-demanding threshold of probability, should be rejected.

Cyrus Mehta

Although DOS Resumes Visa Processing for Foreign Students,  the Enhanced Vetting Guidance Undermines American Values of Free Speech and Expression

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On June 18, 2025, the Department of State resumed visa processing for new and returning students and exchange visitors (F, M, and J nonimmigrants) but announced enhanced social media and online presence screening and vetting procedures. All applicants for F, M, and J nonimmigrant visas will be instructed to adjust the privacy settings on all of their social media profiles to “public” at their visa interviews. If the consular officer finds them otherwise eligible for the visa sought, the officer will issue the student an INA § 221(g) decision while they gather more information and documentation before issuing a final determination.

The guidance directs consular officers to review visa applicants’ online presence for “any indications of hostility towards the citizens, culture, government, institutions or founding principles of the United States.” Consular officers will review more than just social media accounts with particular attention to applicants with a history of political activism. Officers will comprehensively screen every visa applicant “for potential security and non-security related ineligibilities.” Although the online content found may not alone be sufficient to deny a student’s visa, officers will conduct additional vetting to determine if the applicant will respect U.S. laws and “engage only in activities consistent with” their status. While some travelers have taken to temporarily wiping their social media accounts, consular officers will be taking screenshots during their vetting process to preserve records of their findings. 

Lack of a public online presence or refusal to make sites accessible will raise a red flag. If no derogatory information is found, the officer may make a decision on the visa application. However, according to the guidance, “[i]f potentially derogatory information is found, post should refuse the case under the appropriate refusal code; or, if needed, post should call the applicant back for a follow-up interview.”

According to the guidance, consular posts may resume processing of expedited appointment requests and are directed to prioritize physicians applying for J visas and applicants studying at U.S. universities where international students constitute 15 percent or less of the total student body.

The guidance is very authoritarian and not befitting American values that cherish freedom of speech and expression, and is aimed at stifling all forms of critical speech that is integral to a student’s expression. For instance, a student may have randomly posted on social media about the blandness of American cuisine because of the dominance of McDonalds in a small  town he visited in comparison to New York or San Francisco. Could this post now be used as a basis to refuse the student visa because he displayed hostility towards US culture? Or what if a student of international affairs writes an essay in the college newspaper critical of President Trump’s decision to bomb Iran without Congressional authorization even though many elected representatives in Congress share this view? One can go on and one with ridiculous examples of how a student may be refused a visa under this policy. 

Unfortunately, it is difficult to challenge a consular officer’s refusal of a student visa but there may be some legal foundation. In Kleindienst v. Mandel, the Supreme Court held that the government has broad discretion to  refuse entry of a noncitizen seeking entry to the US. So long as there is a  “facially legitimate and bona fide reason” to refuse entry, courts will not question that decision or weigh it against the First Amendment rights of those seeking to communicate with the noncitizen.  One may be able to argue in court  that denying a student visa to one who has posted critically against “McDonald culture” does not meet the “facially legitimate and bona fide reason” standard, but courts have still  historically been reluctant  to question a consular officer’s decision or gone behind it so long as the officer provided a decision. It may be more feasible to seek review in court  if the challenge intersects with a claim under the First Amendment and if US based plaintiffs are involved. In American Academy of Religion  v. Napolitano, the Second Circuit Court of Appeals held that the lower district court had jurisdiction to consider US organizations’ First Amendment claims despite consular non- reviewability in the denial of a B visa to an Islamic scholar.  The Court  found the First Amendment rights of U.S. organizations are at stake when foreign scholars, artists, politicians and others are excluded, quoting from Kleindienst v. Mandel that the organizations have a First Amendment right to “‘hear, speak, and debate with’ a visa applicant.” The appeals court also found that the government cannot exclude an individual from the U.S. on the basis of “material support” for terrorism without affording him the “opportunity to demonstrate by clear and convincing evidence that he did not know, and reasonably should not have known, that the recipient of his contributions was a terrorist organization.”

The State Department policy will either dissuade or deprive thousands of foreign students from studying in the US. It will also lead to processing delays as consular officers will be required to vet all student visa applicants for potential security and non-security ineligibility. This is turn will further undermine the ability of US universities to enroll foreign students who generally pay fees at full freight. It will erode America’s credibility as a destination to attract the best and the brightest, and it will also undermine the ability of universities to foster critical thinking as well as sow fear lest one’s published views lead to retaliation. The policy could also be applied arbitrarily, potentially leading to visa denials based on innocuous or irrelevant online activity. This could further support a challenge by demonstrating that the policy lacks clear standards and is inconsistent with American values of free speech and expression. Furthermore, the policy’s potential to dissuade or deprive foreign students from studying in the U.S. could undermine the ability of U.S. universities to foster critical thinking and academic exchange. This impact on U.S. institutions could strengthen the argument that the policy is detrimental to the First Amendment interests of U.S. entities.

If Trump’s State Department does not come to its senses and rescinds its unwise policy, visa applicants who have been baselessly denied visas and impacted US organizations should consider  challenging the policy in federal court under American Academy of Religion v. Napolitano.  

 

Cyrus Mehta

Trump’s Executive Order Restricting Birthright Citizenship Is So Unconstitutional that Even the Supreme Court May Reject It

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By Cyrus D. Mehta and Kaitlyn Box*

On January 20, 2025, Inauguration Day, Donald Trump signed an executive order entitled “Protecting the Meaning and Value of American Citizenship”, which interprets the language “subject to the jurisdiction thereof” in the Fourteenth Amendment to mean that U.S. citizenship does not extend to individuals born in the United States: 

1. when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, 

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

The executive order further directs agencies not to “issue documents recognizing United States citizenship, or accept documents issued by State, local, or other governments or authorities purporting to recognize United States citizenship” to individuals falling within these categories. Further, the executive order specifies that it applies “only to persons who are born within the United States after 30 days from the date of this order”, and does not speak to whether the U.S. citizenship of a child who has already been born to two non-U.S. citizen or LPR parents will continue to be recognized. 

The American Civil Liberties Union has already sued the Trump administration over this executive order. The complaint argues that the Fourteenth Amendment was indented to confer U.S. citizenship on all persons born in the United States, regardless of the citizenship status of their parents, and asserts that the executive order violates the Fourteenth Amendment, 8 U.S.C. § 1401, which mirrors the Fourteenth Amendment’s language, and the Administrative Procedure Act. 

The granting of automatic citizenship to a child born in the US is rooted in the first sentence of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”

Lost in the heated political rhetoric surrounding Trump’s executive order is that it is next to impossible to amend the hallowed Fourteenth Amendment, which was enacted to ensure birthright citizenship to African Americans after the Civil War, and following the infamous decision in Dred Scott v. Sanford  that held that African Americans could not claim American citizenship.   In  United States. V Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court  extended the Fourteenth Amendment to an individual who was born to  parents of Chinese descent and during a time when Chinese nationals were subjected to the Chinese exclusion laws:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owning direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciles here, is within the allegiance and the protection, and consequently subject to the jurisdiction of the United States. 

Although in Elk v. Williams, 112 U.S. 94 (1884), those born within Native American tribes were not born “subject to the jurisdiction” of this country because they owed allegiance to their tribal nations rather than the United States,  this preclusion was  eventually eliminated by the Indian Citizenship Act of 1924. Even the Board of Immigration Appeals in Matter of Cantu, Interim Decision #2748, broadly held that one who was born on a territory in 1935, the Horcon Tract, where the United States had impliedly relinquished control, but had not yet ceded it to Mexico until 1972, was born “subject to the jurisdiction” of the United States and thus a US citizen.

 Other lawsuits are sure to follow, and the executive order may be blocked by federal courts. As the recent decision on DACA in the Fifth Circuit, which enjoined the program only in Texas, demonstrates, a federal court decision could result in the different definitions of who is a U.S. citizen depending on the jurisdiction. Thus, even if plaintiffs prevail in the legal action in federal court in New Hampshire, the court may not issue a nationwide injunction. A Trump appointed federal judge in Texas in a different lawsuit may reach a different conclusion based on his or her interpretation of “subject to the jurisdiction thereof” in the Fourteenth Amendment.  Given its current conservative composition, however, Trump is hoping that the  Supreme Court may ultimately accept his administration’s reinterpretation of the “subject to the jurisdiction thereof” language and uphold the executive order. Even that is unlikely as the parents of a child who are undocumented or in nonimmigrant status are always subject to prosecution,  unlike a diplomat who enjoys immunity, and are thus subject to the jurisdiction of the US. It is also highly unlikely that nonimmigrant parents would be considered enemies during a hostile occupation of  a part of  US territory even if Trump might like to imagine so! 

In the meantime, the executive order creates much ambiguity and poses severe consequences for individuals who otherwise would have been U.S. citizens. The executive order applies not only to children of two undocumented parents, but also to the U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4. How will a child as soon as it is born acquire H-4 status? One needs to be admitted into the US in H-4 status or change from another nonimmigrant status into H-4 status. Perhaps, the Trump administration may need to issue a regulation recognizing H-4 status of the child at the time of its birth.    As we noted in a prior blog, the best chance for Indian-born beneficiaries of approved I-140 petitions who are trapped in the employment-based second (EB-2) and third (EB-3) preference backlogs to obtain permanent residence without waiting for several decades could be sponsorship by a U.S.-born adult child. Parents of children born after the effective date of the executive order may no longer have this opportunity. The executive order will cruelly create a permanent underclass of noncitizens. The child in H-4 status would have to leave the US when it turns 21 unless it finds a way to change to another nonimmigrant status or obtain permanent residence independently such as through marriage with a U.S. citizen. 

The executive order’s application to other categories of children born in the U.S. is unclear. For example, would U.S. citizenship extend to the child born to a mother in valid H-1B status, but who also had a pending I-485 application and is able to exercise portability under INA § 204(j)? Similarly, would a child born to a nonimmigrant mother be considered a U.S. citizen if the father is an anonymous sperm donor in the U.S.? Based on the plain language of the executive order, it appears likely that U.S. citizenship would not extend to either of these children. 

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

Update:  Since the publication of the blog, on January 23, 2025 Judge Coughenhour in the US District Court Western District of Washington at Seattle issued a temporary injunction stating “This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”

Cyrus Mehta

Does the Signing of the I-485 Supplement J By a New Employer Constitute Visa Sponsorship?

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Cyrus D. Mehta and Jessica Paszko*

Portability under Section 204(j) of the Immigration and Nationality Act (INA) allows certain employment-based green card applicants to change jobs or employers while their adjustment of status (Form I-485) application is pending. Portability becomes available once the I-485 has been pending for at least 180 days. It must be exercised by submitting Supplement J (Form I-485J), which confirms the new job offer and its compliance with the same or similar occupational classification as the original job offer that was the basis of Form I-140. Once an applicant’s I-140 priority date is current, there is a race to file an I-485J before the I-485 is approved to ensure the new employment details are recognized and to avoid any potential complications in the adjustment process or later at the time of naturalization. Foreign nationals with backlogged Form I-140 priority dates are generally not envied by their counterparts whose priority dates are current or about to become current. Ironically, the latter group may find themselves green with envy, wishing their non-current priority date could afford them additional time to secure a job offer when faced with unemployment upon their I-140 priority date becoming current.

We’ve previously addressed the dilemma of a green card being approved prior to filing the I-485J, as well as the uncertainties faced by foreign nationals terminated during the “Twilight Zone” with an I-485 pending for less than 180 days. Yet, in exploring these issues, we may have overlooked a crucial element of the I-485J: the employer’s willingness to endorse it. A laid-off worker with a distant priority date need not fear these dilemmas or uncertainties, even if their adjustment has been pending for less than 180 days. They can diligently pursue new opportunities for similar employment, assuming their I-765 application for an Employment Authorization Document (EAD) has been approved, and then request their new employer to execute an I-485J on their behalf. However, navigating this process may not be straightforward, particularly when addressing the standard screening question posed by employers to avoid a charge of discrimination or bias: “Do you now, or will you in the future, require sponsorship for employment visa status (e.g., H-1B visa status, etc.) to work legally for our company in the United States?”

Arguably, a foreign national employed under a valid EAD does not necessitate ‘sponsorship’ for a visa. Yet, the new employer must execute an I-485J on their behalf. Is an I-485J synonymous with sponsorship? Technically speaking, probably not, though the new employer should be apprised of this material fact which raises the question of when it would be appropriate to raise this with the employer?

Answering the screening question in the negative can be defended, as signing an I-485J does not imply the type of ’employment visa’ sponsorship the question typically refers to. While the need for an I-485J may not need to be disclosed during initial screening, could withholding this information until after signing the offer letter be justified? Introducing the I-485J requirement during the interview process, before the offer letter is finalized, could potentially complicate matters although the timing of such a disclosure should be determined on a case by case basis. From the foreign national’s perspective, it may be prudent to delay discussing the I-485J until after accepting the offer. However, if the employer learns of this requirement earlier and withdraws the offer, could the foreign national claim discrimination under INA 274B? Prevailing in such a claim is unlikely under these circumstances.

In the eyes of immigration practitioners, and employers who have been through the PERM process once or hundreds of times, hiring a foreign national with an approved I-140 and pending I-485 is a hard-to-pass-by bargain especially if they have the ideal sought after skills for the job. The new employer does not need to start the time consuming and costly PERM process anew and gets all the benefit of hiring a foreign national that has been vetted as qualified for the job by both the Department of Labor and USCIS. Surely, it would be silly for any employer to pass on hiring a prospective employee upon learning that just one simple form needs to be endorsed for the employer to take over an I-140 that another company spent significant time and resources to obtain. Although that might be the inherent reaction of the employer familiar with immigration visa sponsorship, alarm bells might go off in the ears of the cautious employer that has never sponsored any foreign nationals. From the cautious employer’s perspective, a signature in the employer’s section on the I-485J could expose them to perjury. The I-485J contains one section that must be signed by the applicant and another section that must be signed by the prospective employer who has to describe the job title, duties, and the Standard Occupational Classification (SOC) code, which may be daunting for the employer to figure out, and even more so in light of signing under penalty of perjury.

An employer’s unwillingness to attest to the contents of the I-485J under penalty of perjury may not be the only consideration. A fearless employer who has a hard time believing the government would bother bringing perjury charges against him for something like this would gladly sign off on an I-485J but for the form’s request for information that is fundamentally at odds with the employer’s business practices. Indeed, an employer who solely offers employment-at-will or who never specifies job duties or job duration in offer letters may be hesitant to change its longstanding practice and provide information in the I-485J it has never put in writing. The employer’s unwillingness to endorse an I-485J because to do so would contradict its normal business practices would also cut against a claim that the employer engaged in discrimination. On the other hand, would a discrimination claim fare any better if the employer’s long standing practice is to include job duties and job duration in its offer letters? From that employer’s perspective, despite its long standing practice, denying an offer of employment to a foreign national in need of an I-485J is not commensurate with discrimination because a signature on the I-485J exposes it to perjury, a major liability that its long standing practice does not even contemplate.

The pre-2017 era prior to the requirement of I-485Js offered a simpler process for adjustment applicants who sought job flexibility. During that time, applicants were generally only required to demonstrate, if questioned during a naturalization interview, that they had moved to a same or similar job. However, this approach introduced uncertainty regarding whether applicants were obligated to disclose changes in employment. With the introduction of regulations like 8 CFR § 240.25(a) many years after the enactment of INA § 204(j), clarity has been enhanced: applicants can now use Form I-485J to affirmatively demonstrate ongoing employment with the sponsoring employer or a new job in the same or similar occupation, after the application has been pending for 180 days. While not explicitly mandatory under 8 CFR § 240.25(a), the instructions on Form I-485J have effectively made it a requirement. However, although there is more certainty with the I-485J, applicants may find themselves penalized if the I-485J does not get submitted before the issuance of a green card. This creates a paradoxical situation where those who secured employment before their I-485 approval may benefit more than those who did not, assuming that the employer is not reluctant to sign its part the first place after being confronted with an I-485J asking for job duties and an SOC code.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.