Tag Archive for: Nonimmigrants

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 (1984), 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 1024. 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(c)? 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.

 

Cyrus Mehta

Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas

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By Cyrus D. Mehta & Isabel Rajabzadeh*

One of the many benefits of filing an Adjustment of Status Application (AOS) is the ability to concurrently apply for work authorization (Form I-765/EAD). In addition, the applicant can remain in the United States while the AOS is pending without maintaining status, although most opt to maintain their dual intent nonimmigrant status for as long as possible. One of the most popular dual intent visas are H-1Bs. By extending their nonimmigrant H-1B status, the individual would not start accruing unlawful presence if the AOS is denied for whatever reason. Extending nonimmigrant status while the AOS is pending is also beneficial in some nonimmigrant visa categories, including the H-1B visa, because it allows the individual to continue to work with the same employer without having to separately apply for an EAD.

As USCIS service centers continue to be severely backlogged, we are required to adjust legal strategy to combat these delays. One of the most affected is the processing of work authorization. Earlier this year, the USCIS updated its expedite request policy. Unfortunately, notwithstanding the broadening of the criteria, the requests seem to be met with high scrutiny and are successful in limited cases. Nonetheless, we recommend filing the request if one meets the criteria. Absent a successful expedite request, EADs based on pending AOS applications are taking 9+ months to process. As explained above, individuals therefore find themselves relying on their nonimmigrant status for work authorization while their AOS EADs are pending in the USCIS limbo.

For many nonimmigrant categories, the beneficiary must not have the intent to permanently immigrate to the U.S. As such, an important requirement for most nonimmigrant visas is having “a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.” (INA 101(a)(15)(B)). Although the H-1B visa is a nonimmigrant visa, it allows for dual intent. This means that the H-1B visa holder can have the intention of immigrating to the U.S. while still maintaining his/her H-1B nonimmigrant status. The Immigration and Nationality Act carves out the dual intent doctrine by explicitly excluding H-1B visa beneficiaries from the requirement that “every alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status.” (See INA 214(b)). Therefore, when an H-1B visa holder applies for adjustment of status, he/she is able to maintain both the nonimmigrant status and have the immigrant intent. Other visas permitted to have dual intent also include the L and V visa, under the carve out in INA 214(b). The O, P, and E visas are quasi dual intent visas established by regulations.  While they allow the nonimmigrant to be in the U.S. in that status without needing to have a foreign residence, they still do not permit them to intend to seek permanent residence in the U.S. As an illustration of quasi dual intent, under 8 CFR 214.2(o)(13), an intent to remain temporarily in the United States is a requirement for O-1 classification. However, an applicant for an O-1 visa does not have to have a residence abroad which he or she does not intend to abandon.

As visa holders enjoy the benefits of dual intent, we honor the memory of Dale Schwartz, the late immigration attorney who was highly respected in the field and was a former President of the American Immigration Lawyers’ Association. Mr. Schwartz had faced criminal charges in the 1980s in the wake of federal officials investigating applications submitted on behalf of a British businessman who came to the United States in 1980 to work for an American aerospace company. The government charged Mr. Schwartz with eight counts of mail fraud and false statements and asserted that the British businessman intended to live in the U.S. permanently even though he was seeking a temporary visa. The officials ultimately dropped the criminal charges, and we remember him here as a zealous advocate for nonimmigrant dual intent. It is because Mr. Schwartz took the fall for everyone that Congress enacted the dual intent carve out in INA 214(b) in 1990.

Even before dual intent got recognized in the INA, the Board of Immigration Appeals in Matter of Hosseinpour recognized way back in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. There, the BIA was tasked with reviewing an F-1 visa holder’s eligibility for nonimmigrant status after filing an adjustment of status application. In that case, the BIA explicitly held that the filing of an adjustment of status application “is not necessarily inconsistent with the maintenance of lawful nonimmigrant status,” although F-1 visas are not dual intent visas. In its reasoning, the BIA referred to legal precedent which states that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” (See Brownell v. Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); Bong Youn Choy v. Barker, 279 F.2d 642, 646 (C.A. 9, 1960). See also Matter of H-R-, 7 I & N Dec. 651 (R.C. 1958)). Further, the BIA reasoned that the F-1 student who applied for adjustment of status kept his intention to remain a nonimmigrant student even though he had applied for adjustment of status. In that case, the student was willing to return home when his studies were completed if ordered to do so. However, the BIA ultimately dismissed the F-1 visa holder’s appeal because the individual did not timely extend his nonimmigrant stay and remained beyond the authorized length of his stay.

In instances where the beneficiary does not hold a dual intent nonimmigrant visa such as a TN or H-1B1 and applies for AOS, they must wait long months for their work authorization to be processed by the USCIS in order to work. If they apply for an extension of the underlying nonimmigrant status while the adjustment application is pending, they will likely receive push back from the USCIS on the ground that the nonimmigrant visa status does not allow for dual intent notwithstanding Matter of Hosseinpour. These nonimmigrants who face this sort of push back from the USCIS when extending their status should invoke the holding in Hosseinpour, which is still good law, that they should be entitled to the extension of nonimmigrant status even if they have expressed an intention to apply for permanent residence. Indeed, as in Hosseinpour, these nonimmigrants would be willing to depart the U.S. at the end of their nonimmigrant status in the event that their adjustment of status application gets denied.

Moreover, when nonimmigrants enter the U.S. in a B-2 visitor status, they are required to maintain an intention to return home to a foreign residence, although Hosseinpour also allows them to have a desire immigrate to the US. Thus, one who is the beneficiary of an I-130 petition can still legitimately enter the U.S. as a visitor if the objective is to process for the immigrant visa at the U.S. consulate. Furthermore, one with a desire to immigrate is also allowed to change one’s mind after being admitted and apply for adjustment of status in the US. During Covid-19, many nonimmigrants who came with the intention of returning home decided to stay in the U.S. and apply for adjustment of status as immediate relatives of U.S. citizen spouses or children when the Covid situation got exacerbated in their home countries.

The project to carve out dual intent in the INA for H-1B, L, and V visa holders is only half completed. Enshrining dual intent in the law will ensure that noncitizens will not be denied a visa or admission if they are able to extend, change or adjust status legally. They will also be able to maintain nonimmigrant status while their adjustment applications are pending. INA 214(b) should be amended to remove the presumption that every noncitizen is an immigrant unless proven otherwise.  The relevant concern to ensure compliance with a temporary visa should solely be focused on whether the noncitizen will violate status by overstaying or working in an unauthorized capacity, and not whether they will pursue other lawful visa options, including adjustment of status, once they enter the U.S. It is important to enact dual intent for all nonimmigrant visa categories to remove needless contradictions and complications in U.S. immigration law.

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

* Isabel Rajabzadeh is an Associate at Cyrus D. Mehta & Partners PLLC and is admitted to practice law in New York.

 

Cyrus Mehta

Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual – Especially for Foreign Students

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In September 2017, the State Department abruptly amended the Foreign Affairs Manual to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas.  A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility. I previously blogged on this development here and here,  I am blogging yet again because I am pleased to report on further recent changes,  which are more positive this time especially for foreign students.

In order to presume fraud or misrepresentation, the applicant must have engaged in conduct inconsistent with representations made to consular officers or DHS officers within 90 days of applying for a visa, admission or other immigration benefit. If the foreign national engaged in inconsistent conduct more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule”, the FAM is not codified law or regulation, but merely sub-regulatory guidance for consular officials abroad. Thus, I prefer to call it guidance rather than a rule.

The latest modification at 9 FAM 302.9-4(B)(3)(g)(2) cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

(i)Engaging in unauthorized employment;

(ii) Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

(iii)A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

(iv)Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

The big change is in (iii) where the words “or F status, or any other” have been stricken. The omission of these few words provides welcome relief to students in F status who study in the US as well as other nonimmigrants in status prohibiting immigrant intent such as J status. A student who travels abroad for vacation, but has planned to get married to a US citizen shortly after the vacation, no longer needs to fear being found to have willfully misrepresented his  or her intentions at the time of admission. Although (iii) contemplates marriage to a US citizen and taking up residence in the United States thereafter, it could encompass other scenarios, such as a student filing an adjustment of status application, based on an approved  I-140 petition with a current priority date, after returning from a brief trip overseas.

This welcome change appears to acknowledge an inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g.Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent).

Such inherent dual intent as established in Matter of Hosseinpour is also applicable to one who enters the United States in B status too, but the B nonimmigrant still seems vulnerable to a charge of fraud or misrepresentation based on conduct inconsistent with what was represented to the consular or DHS officer. Still, there are other positive and sensible changes in the FAM that apply to all nonimmigrants, especially in the  preceding section at 9 FAM 302.9-4(B)(3)(g)(1). For ease of reference, the entire section is reproduced below with the changes reflected in Red Italics.

(U) Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status

  1. (U) In General:
    1. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    2. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving aliens in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit.  Such cases occur most frequently with respect to aliens who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.
    3. (U) The fact that an alien’s subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that the alien’s intentions were misrepresented at the time of either the visa application or application for admission to the United States.  To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).  If the activities happened within 90 days after the visa application and/or application for admission to the United States, please see paragraph (2) below.

(U) Note: The case notes must reflect that, when applying for admission into the U.S. or for a visa, the alien stated either orally or in writing to a consular or immigration officer that the purpose of travel was consistent with the nonimmigrant visa class sought.  (For example: “The officer finds that the applicant told the officer at the port of entry that his purpose of travel was consistent with the visa class held.”)

 

The heading of 9 FAM 302.9-4(B)(3)(g)(1) now reads “Activities that May Indicate A Possible Violation of Status or Conduct Inconsistent with Status” thus suggesting more discretion and leeway before a consular officer jumps to the conclusion that the application misrepresented his or her intention.  Notwithstanding the 90 day period, so long as one initially entered the United States with the intention that was consistent with the visa status, such as to visit the US for tourism, in B-2 status, but then genuinely changed one’s mind and got married to a US citizen within 90 days, the presumption of misrepresentation can be rebutted if it can be demonstration that the intent at the time of admission was consistent with the B-2 status. The guidance goes onto further state that even if the conduct was inconsistent to what was previously represented to the consular or DHS officer,  there should not be an automatic presumption of fraud or misrepresentation. Consular officers are not permitted to go along with a hunch or mere suspicion, the FAM cautions. Rather, consular officers must adopt the reason to believe standard: “To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the “reason to believe” standard, which requires more than mere suspicion and is akin to probable cause.  See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013).”  “Probable cause” is generally associated with a reasonable ground to believe that the accused is guilty, see e.g. Ludecke v. United States Marshall, 15 F.3d 496 (5th Cir. 1994).   Thus, the implementation of “probable cause” gives more room for an applicant to rebut an accusation of misrepresentation.

Finally, the insertion of  “engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status” appears to be in harmony with prong (iv) of 9 FAM 302.9-4(B)(3)(g)(2). Prong (iv) says the same thing: “Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.” As I had suggested in the prior prior blog, the applicant should only be penalized if he or she engaged in activities without applying for a change of status or adjustment of status. Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30thday, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the prong (iv) criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. Also, since the salutary change for students in the FAM guidance is for consular officers, a Customs and Border Protection (CBP) officer at the airport may not be guided by it, and may not even know about it. Thus, a foreign student who has resided in the United States for several years coming back from a brief weekend trip from Canada could still be suspected for misrepresenting his or her intentions as a nonimmigrant if there is a plan to marry a US citizen and adjust status in the US.

It is hoped that the change in the FAM guidance benefitting foreign nonimmigrant students will guide USCIS and CBP too. It makes little sense to penalize a bona fide foreign student who plans to marry and adjust status just because of a short vacation overseas. The inherent dual intent wisely recognized by the Board of Immigration Appeals in all nonimmigrant visa categories in Matter of Hosseinpour ought to be part of guiding policy for all the agencies administering the Immigration and Nationality Act. One who enters the United States as a nonimmigrant to pursue the objectives of the visa, but who also desires to immigrate, should not be viewed in the same way as one who commits blatant fraud. Nonimmigrants should be allowed to follow their destiny as it naturally unfolds in the United States without having to worry about being accused of engaging in inconsistent actions within 90 days of their admission.