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The Empire Strikes Back – USCIS Rescinds Deference To Prior Approvals In Extension Requests

October 30, 2017/0 Comments/in Blog/by Cyrus Mehta

The Trump administration is deriving great pleasure in causing pain to people who wish to lawfully come to the United States and remain here lawfully. It has caused H-1B carnage as more H-1B visa petitions are being denied than ever before on legally baseless grounds.

Continuing to rub salt in the wound, the USCIS issued a Policy Memorandum dated October 23, 2017 that rescinds its prior guidance of deferring to prior approvals when adjudicating extension requests involving the same parties and underlying facts as the initial determination. Despite the deference policy, there were broad exceptions under which it would not apply if it was 1) determined that there was a material error with regard to the previous petition approval; (2) a substantial change in circumstances has taken place; or (3) there was new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

The new Policy Memorandum in rescinding the prior policy instructs adjudicators with respect to extension requests to thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The Policy Memorandum further reminds that the burden of proof in establishing eligibility is, at all times, on the petitioner under INA § 291 and criticizes the former deference policy for “appear[ing] to place the burden on USCIS to obtain and review a separate record of proceeding to assess whether the underlying facts in the current proceeding have, in fact, remained the same.” The Policy Memorandum also vaguely notes that “[the prior policy] was also impractical and costly to properly implement, especially when adjudicating premium processing requests.”

The Policy Memorandum also rescinds a similar deference policy that was set forth in the USCIS L-1B Policy Guidance of 2015 with respect to L-1B extensions. Under that policy too, adjudicators were reminded to defer to prior L-1B adjudications, unless the exceptions applied. This aspect of the L-1B Guidance is no longer applicable. The Policy Memorandum does not affect the deference given to prior favorable adjudications in the EB-5 program, as described in the EB-5 Policy Memorandum of 2013.

On the one hand, the Policy Memorandum rescinding deference does not change much as the USCIS was in any event not giving deference to prior approvals. The exceptions in deferring to prior approvals were broad. It was routine for an adjudicator to invoke that there may have been a material error in approving the prior petition, or there was a substantial change in circumstances, or that there was new material information that substantially impacted eligibility. It has always been the practice of most petitioners filing extension petitions, and the attorneys who represent them, to not take for granted that the USCIS adjudicator would give deference to the prior approval. Therefore, it has always been a best practice to provide substantial supporting information and evidence at the time of filing an extension as if it was being filed for the first time.

Still, on the other hand, the Policy Memorandum will incentivize adjudicators to issue unnecessary Requests for Evidence (RFE) that will not just cause uncertainty to petitioning employers but will cause havoc in the lives of foreign nationals. Many of these RFEs will likely be preludes to denials of extension requests on behalf of foreign nationals who have been living in the United States for many years, and were used to getting approvals on extension requests. The USCIS has been reading out entire occupations from the H-1B law that would have otherwise been easily approvable. The USCIS relies on the description of the occupation in the Occupational Outlook Handbook (OOH) to justify its denials. For example, with respect to Computer Systems Analysts, the OOH states that a “bachelor’s degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who know how to write computer programs.” The USCIS has often used this as a justification to deny an H-1B petition filed on behalf of a Computer Systems Analyst, and now that the deference policy no longer exits, will be used even if the USCIS had previously approved the H-1B petition on behalf of the Computer Systems Analyst.

There are foreign nationals who have been patiently waiting for permanent residency for several years due to backlogs in the employment second and third preferences. They may be applying for yet another H-1B extension beyond the sixth year (and in many instances, this may either be their 10^th or 12^th year in H-1B status), and they risk the prospect of the USCIS suddenly pulling out the rug from under their feet. In prior years, many entrepreneurs received H-1B or O-1A/1B approvals through their own startups based on guidance in what used to be a very informative Entrepreneur Pathways Portal. To this author’s dismay, that portal has been replaced with basic plain vanilla information about different visas. Gone out of existence is the thoughtful guidance for entrepreneurs on how they can legitimately use H-1B, L-1 or O visas. Since an adjudicator need not pay deference to the earlier approval, and since the guidance on entrepreneurs no longer exists, extensions requests of a startup on behalf of its founder may also be subject to additional scrutiny and thus greater peril.

It is no coincidence that the Policy Memorandum was issued shortly after Francis Cissna was confirmed as USCIS Director on October 8, 2017. Although Mr. Cissna is highly experienced, having worked in various capacities within the DHS from 2005 until 2017, he was also detailed by the DHS to the Senate Judiciary Committee, specifically to the office of Chairman Chuck Grassley, R-Iowa, where he spent two years, from 2015 to 2017. It was during this time that Grassley wrote critical letters to the agency on immigration issues, many of which were authored by Mr. Cissna. Mr. Cissna also assisted the Trump presidential campaign on immigration issues. Trump’s stance against both legal and undocumented immigration as taking away American jobs is well known. This is now being translated into action on behalf of the president by people like Mr. Cissna and Steve Miller. The anti-immigrant movement, like the evil Galactic Empire in the Star War movie series, has struck back hard. The Policy Memorandum rescinding deference resembles one of those devastating attacks against good people ordered by Darth Vader on behalf of the Empire.

The prior deference policy was good policy as it was in harmony with regulations that clearly instruct that in extension H-1B, O-1, L-1 and P petitions, petitioners need not submit the same supporting evidence as they did when filing the new petition.

8 CFR § 214.2(h)(14), with respect to H-1B extensions, provides:

(14) Extension of visa petition validity. The petitioner shall file a request for a petition extension on Form I-129 to extend the validity of the original petition under section 101(a)(15)(H) of the Act. Supporting evidence is not required unless requested by the director. A request for a petition extension may be filed only if the validity of the original petition has not expired.

The same language indicating that supporting evidence is not required exists with respect to L visa extensions at 8 CFR 214.2(l)(14)(i); O extensions at 8 CFR 214.2(o)(11) and P extensions at 8 CFR 214.2(p)(13).

The Policy Memorandum acknowledges the existence of these regulations, and tries to clumsily skirt around them by instructing adjudicators as follows:

However, although these regulatory provisions govern what is required to be submitted at the time of filing the petition extension, they do not limit, and, in fact, reiterate, USCIS’ authority to request additional evidence. While adjudicators should be aware of these regulatory provisions, they should not feel constrained in requesting additional documentation in the course of adjudicating a petition extension, consistent with existing USCIS policy regarding requests for evidence, notices of intent to deny, and the adjudication of petitions for nonimmigrant benefits.

There is clearly tension between the Policy Memorandum and the regulations that do not require supporting evidence when filing extension petitions through the same employer. If a petitioner does not need to file any initial evidence, and the adjudicator is giving no deference to prior adjudications, how will adjudicators know what to do? Will they simply request an RFE in every case? Is that really consistent with a regulation explicitly stating that you do not need to file any evidence unless requested? This could provide a legal basis to challenge the Policy Memorandum in federal court as violating the regulations that explicitly do not require supporting evidence. The regulations have more legal force than the Policy Memorandum, which appears to be rescinding the regulations. If petitioners who file routine extensions are faced with a blizzard of RFEs that ultimately lead to denials, they should challenge the Policy Memorandum in federal court.

The Policy Memorandum also states that it is consistent with the “agency’s current priorities and also advances policies that protect the interests of U.S. workers.” These priorities did not exist when the initial petition was approved. Like all the other restrictive polices implemented under the Trump administration, the rescission of the deference policy is to further Trump’s Buy American Hire American (BAHA) Executive Order. The BAHA Executive Order was also not in existence when Congress created the H-B, L, E, O or P visa provisions in the Immigration and Nationality Act. According to the legislative history for the 1970 Act, the L-1 visa was intended to “help eliminate problems now faced by American companies having offices abroad in transferring key personnel freely within the organization.” H.R. Rep. No. 91-851 (1970), reprinted in 1970 U.S.C.C.A.N. 2750, 2754, 1970 WL 5815 (Leg. Hist.). There is also no indication in the plain text of INA 101(a)(15)(L) that the purpose of the L visa was to “create higher wages and employment rates for workers in the United States, and to protect their economic interests.” If Congress desired that objective in the L visa program, it would have stated so more explicitly. Indeed, Congress did speak about protecting US workers in INA 101(a)(15)(H)(ii)(b) requiring an H-2B worker to perform temporary services or labor only “if unemployed persons capable of performing such service or labor cannot be found in this country.” Even with respect to H-1B visas, Congress specifically required employers to make attestations with relating to wages with the Department of Labor, but they were not required to conduct recruitment of US workers unless they were H-1B dependent employers who did not have exempt workers. Therefore, if Congress desired the same purpose as enshrined in the BAHA Executive Order for the L, the H-1B (at least for non-dependent employers who do not have exempt employees), O or P visa, as it did for the H-2B visa, it would have said so. It is inconsistent not just with the regulations, but with the provisions in the INA to rescind deference because the USCIS wishes to adjudicate extension petitions consistent with BAHA.

This provides a further basis to challenge the Policy Memorandum in federal court, in addition to contradicting the above stated regulations, if it leads to denials of extension requests that were previously readily approved. The new Policy Memorandum appears to insist on deference to BAHA over a prior approval under the INA, which stems from Trump’s America First campaign slogan. BAHA deserves no deference as it is nativism in another name and has also been linked to Anti-Semitism in America’s not too distant past. Adjudicators must faithfully implement the plain meaning of the provisions in the INA without regard to Trump’s America First doctrine, which views immigrants as job stealers rather than recognizes their amazing contributions to the US. Immigration lawyers, like the Jedi Knights who ultimately prevail over Darth Vader and his evil empire, must be prepared to challenge adverse decisions stemming from the Policy Memorandum in order to restore fairness and balance in our immigration system.

More Alternative Facts: The Orwellian Abuse of Language in Connection with Donald Trump’s Recent Executive Orders on Immigration

January 31, 2017/1 Comment/in uncategorized/by David Isaacson

Following an incident in which White House press secretary Sean Spicer provided false numbers regarding the size of the crowds at the inauguration of Donald Trump as President, Trump senior advisor Kellyanne Conway memorably stated on NBC’s “Meet the Press” that Mr. Spicer had merely been providing “alternative facts.” This claim has, deservedly, been the subject of much ridicule. As host Chuck Todd stated during that same interview in response to what one article rightly termed an “Orwellian turn of phrase”: “Alternative facts are not facts. They’re falsehoods.” Such disregard for the truth has been a common feature of the early days of the Trump Administration.

The same Orwellian approach to language has been evident in the Trump Administration’s recently issued executive orders regarding immigration. Both the January 25, 2017, Executive Order entitled “Enhancing Public Safety in the Interior of the United States” and the January 27, 2017, Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States,” involve in different ways a very troubling relationship with the notion of truth. (The orders also have a number of other deeply objectionable aspects, too many to fully address in one blog post, although many other blog posts, editorials, and op-eds by other authors on the subject are well worth reading.)

The January 25 executive order, among other changes to enforcement policy, creates a list of priorities for removal which, at first glance, is intended to focus in large part on criminals. As the New York Times explained in an article published the day the order was issued, however, the executive order in effect defines the notion of a criminal for these purposes to include people charged with a criminal offense but never convicted of anything, as well as anyone who has “committed acts that constitute a chargeable criminal offense” (or, more precisely, anyone believed by the immigration authorities to have done so).

These priorities thus include people quite far afield from any traditional notion of what it means to be a “criminal”. It is, or used to be, a tradition of long standing in this country that one charged with a crime is presumed innocent until proven guilty. The mere fact that someone has “been charged with any criminal offense, where such charge has not been resolved,” to quote from Section 5(b) of the January 25 executive order, does not make them a criminal. They might be innocent of any wrongdoing, and might be acquitted as the criminal case moved forward. The idea that any technically removable person will become a high priority by virtue of an unresolved charge, of which they may be completely innocent, is therefore very troubling. While merely being a priority is not itself a basis for removal, the executive order implies that the Administration could pursue removal of someone facing unresolved criminal charges who had overstayed a nonimmigrant admission for a short period of time, or failed to file a change of address and could not sufficiently establish that the failure was non-willful or excusable.

The notion that anyone who has “committed acts that constitute a chargeable criminal offense” will be a priority for removal even if not convicted of any charge is also troubling, and has broader implications than may be apparent at first glance. Entry without inspection is a misdemeanor under 8 U.S.C. 1325, for example, so this priority could be read to apply to anyone who crossed the border without authorization, at least as an adult—even if that entry took place many years ago.

The January 27 executive order, which bars entry by nationals of Syria, Iraq, Iran, Somalia, Yemen, and Libya for 90 days subject to possible future extensions, and suspends all refugee admissions for 120 days, rests even more fully on a disconnect from the truth. It purports to be focused on protecting the U.S. from “Terrorist” entry, and yet it applies to many people who are extremely unlikely to be terrorists. Besides a distaste for refugee admissions generally, it seems to be based on antagonism towards predominantly Muslim countries, and has thus been referred to as a “Muslim ban”—although it ironically does not apply to the few predominantly Muslim countries whose citizens were responsible for the attacks against the United States on September 11, 2001 that it invokes, such as Saudi Arabia, the country of citizenship of 15 of the 19 September 11^th hijackers. (It has been pointed out that the ban appears to leave out countries where Donald Trump has done business.) Instead, the entry ban focuses on countries which either Congress or DHS previously deemed worthy of being a basis for exclusion from the Visa Waiver Program in the event that an otherwise VWP-eligible person had dual nationality in them or had visited them—an exclusion which, while it had some perverse effects, simply meant that such people had to apply for visas and thus be subjected to additional scrutiny. This new order, however, applies to people who already have been granted visas (or documents to travel to the United States as refugees, which are not technically quite the same thing), following intense scrutiny and under circumstances that make it quite unlikely they would actually be terrorists.

Perhaps the first and most obvious example of those who can be deemed potential “terrorists” only by Orwellian abuse of the word are those who were granted permission to immigrate specifically due to their service to the United States, such as the special immigrants issued visas based on their work for the U.S. military in Iraq. The lead plaintiff in the ACLU lawsuit that resulted in the first temporary injunction blocking deportation of those affected by the executive order, Hameed Khalid Darweesh, was a former U.S. Army translator in Iraq who had received his special immigrant visa based on that service and had been twice targeted by terrorists in Iraq because of that service. The Pentagon has now indicated that it will submit to the White House a list of Iraqis who have worked alongside the United States so that they may possibly be exempted from the entry ban. That there was no exemption of such people from the January 27^th executive order, and no promise even now that such people will be exempted, is even more outrageous than the executive order itself. The notion that blocking Mr. Darweesh’s entry would protect the U.S. from “terrorists” is a falsehood much graver than Mr. Spicer’s original alternative facts regarding crowd size.

While perhaps the most obvious example, however, those who served the U.S. military in Iraq are far from the only people affected by the January 27 executive order who cannot reasonably be associated with terrorism. The executive order at least temporarily bars refugees from all countries of the world, including countries with no connection whatsoever to any past terrorist attack against the United States. It also bars refugees persecuted by the very same extremist groups which might seek to do us harm, and whose cases have undergone extensive vetting before they reach the stage of applying for admission. The January 27 executive order seemingly ignores the extensive screening that already exists for all refugees and visa applicants.

Despite all this, the Administration has sought to remove people covered by the January 27 executive order from the United States as soon as they arrive, without taking any time to investigate whether they might conceivably be reasonably suspected of any connection with terrorism. Fortunately, the courts have stepped in, with both the aforementioned injunction in Mr. Darweesh’s class action and several others. These injunctions did not come soon enough for all of the innocent victims of the executive order, however. At least one habeas plaintiff was removed from the United States while an application for a temporary restraining order was pending, although Judge Dolly Gee of the U.S. District Court for the Central District of California has now ordered that Ali Vayeghan be returned to the United States. Others, however, were removed or coerced to withdraw their applications for admission under circumstances that make their return less likely.

The Administration even initially sought to apply the entry ban to Lawful Permanent Residents (LPRs) of the United States with citizenship in one of the 7 affected countries—that is, people with “green cards”, who have already been cleared to live here permanently. That was extremely legally questionable in the view of this author, given that the power relied upon by the January 27 executive order, section 212(f) of the Immigration and Nationality Act, authorizes the President to suspend the “entry” of certain aliens, and many LPRs returning from brief trips are under section 101(a)(13)(C) of the INA not to “be regarded as seeking an admission into the United States”. Since section 101(a)(13)(A) of the INA defines “admission” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer,” it would appear to follow that one who is inspected, and should not be regarded as seeking admission, also should not be regarded as seeking entry. That would also be consistent with the purpose of section 101(a)(13)(C) to codify a modified version of the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449 (1963), which held under prior law that an LPR did not make an “entry” following an innocent, casual, and brief departure from the United States. The issue may not need to be resolved in litigation in the near future, however, because the DHS Secretary, General John Kelly, determined Sunday that “the entry of lawful permanent residents is in the national interest”, and so “absent significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in [DHS’s] case-by-case determinations.” That is, LPRs from the affected countries will be allowed to return to the United States in most instances. It is consistent with the theme of this blog, though, that the Administration initially sought to redefine “entry” as something other than what it ought to mean under immigration law, and still evidently reserves the right to do so if it feels it is in possession of “significant derogatory information.”

Nor are the redefinition of “entry” and the basic disconnect regarding the relevance of this entry ban to “terrorism” the only alternative facts underpinning the January 27 executive order. The order indicates that when refugee admissions resume, preference is to be given to religious minorities, which has been understood as intended to mean Christians in predominantly Muslim countries (although there are countries where Muslims are in the minority as well). Mr. Trump’s suggestion that Christian refugees had previously had “no chance” of coming to the United States is, however, also untrue. As the New York Times has explained, “In 2016, the United States admitted almost as many Christian refugees (37,521) as Muslim refugees (38,901), according to the Pew Research Center.” Many Christian leaders have denounced the entry ban.

There is also Mr. Trump’s false claim that “My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months.” In fact, the narrowly focused increase in screening of refugees and applicants for Special Immigrant Visas from one country, during which some Iraqis nonetheless continued to be admitted to the United States each month of the six months in question, is in no way “similar” to a months-long outright ban on entry of nearly all citizens from seven countries. Moreover, the heightened screening created in 2011 is still in place, so the fact that scrutiny of Iraqi refugees and visa applicants was increased six years ago cannot reasonably be offered as a reason for suspending their entry now.

The fictional Superman was known for defending “truth, justice, and the American way.” Based on his disregard for the truth, Donald Trump has perpetrated a great injustice, one inconsistent with the American way of hospitality towards immigrants and refugees. Several Democratic leaders have indicated that they will propose bills in Congress to overturn the January 27 executive order, and Democratic Senate leader Chuck Schumer unsuccessfully attempted Monday to get consent for a vote on such a bill. Such bills face highly uncertain prospects in the Republican Congress, given that House Speaker Paul Ryan seemed to express support for the executive orders in his statement on the subject, but we can hope—and, for those of us whose representatives are not already on record in favor, can contact them to urge their support. Donations to the ACLU in connection with its pending lawsuit against the January 27 executive order are another way to show opposition to the entry ban.

Alternative facts are bad enough when they concern something as trivial as crowd size. That they would be relied upon to harm innocent immigrants is unacceptable.

The Ethical Role of a Lawyer Under a Trump Administration

December 19, 2016/0 Comments/in Blog/by Cyrus Mehta

Ever since Donald Trump won the election, many immigrants have justifiably become fearful. During his election campaign, Trump engaged in harsh rhetoric against immigrants. He said he would build a wall and deport 2 to 3 million immigrants with criminal records. Trump also promised that he would rescind President Obama’s deferred action program for young people, known as Deferred Action for Childhood Arrivals (DACA), who arrived in the United States prior to the age of 16 and are out of status. There are also proposals of banning immigrants from certain countries or areas, as well as engaging in extreme vetting of people from Muslim countries as well as reviving the registration program.

The role of the immigration lawyer has become ever more important since Trump winning the election, and the prospects for increased immigration enforcement after January 20, 2017 when Trump is President. While Trump has softened some of his harsh rhetoric since the election, many of his advisors are in favor of strong enforcement such as Jeff Sessions who will be the Attorney General and other immigration hardliners such as Kris Kobach and Stephen Miller. Hence, the fear is palpable, and immigration lawyers have been inundated with calls from worried clients.

Undocumented immigrants fearful of a new enforcement machine will rely on the immigration lawyer to advise them on how they can remain in the country, especially if they have US citizen children. In the event that DACA is rescinded, although there is an ameliorative legislative proposal whose outcome is uncertain, DACA recipients may want to know whether they can change their address, which would be different from the address that was provided in the application. Similarly, even lawful permanent residents with a criminal records and who are vulnerable to deportation may ask the same question of the lawyer. Employers will want to know whether they can continue to hire a DACA employee if the program will be rescinded. A DACA employee will want to know whether she can continue working for the employer if the employer does not realize that the work authorization has expired.

What are the lawyer’s ethical obligations when advising a client fearful of a Trump presidency? A lawyer is under a duty to vigorously represent the client. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only represent her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling an unauthorized immigrant to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation in our immigration system where an undocumented noncitizen can eternally hope to gain legal status (such as if a US citizen child turns 21 or if the individual is placed in removal and obtains cancellation of removal), a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order pursuant to INA 237 (a) within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The ethical lawyer must also be a competent lawyer who is capable of analyzing all the nuances and contours of statutory and regulatory provisions. Even if the DACA program is cancelled, the employment authorization document (EAD) is not unless the government specifically revokes it pursuant to 8 CFR 274a.14(b), and only after the EAD recipient has been given an opportunity to respond through a Notice of Intent to Revoke. Thus, a lawyer can ethically advise that an unexpired EAD still authorizes the DACA recipient to work in the US, and for the employer to continue to employ this person. In the event that a DACA client’s employment authorization has expired, but the employer is not being represented by the same lawyer as the DACA client, this lawyer is under no obligation to alert the employer if it did not notice the expiration of the employment authorization. The employer may be subject to employer sanctions for continuing to employ an unauthorized worker while the DACA client is in any event amenable to deportation whether he is working or not.

Lawyers should also be exploring for alternative opportunities for DACA recipients under immigration law. If they have a legal basis for permanent residence, they should explore it, such as through marriage to a US citizen spouse or through some other green card sponsorship basis. Even if they cannot adjust status in the US if they previously entered without inspection, they can leave on advance parole and return without triggering the 3 or 10 year bar, which would provide a basis for eligibility to adjust status as an immediate relative of a US citizen. Alternatively, they can take advantage of the provisional waiver rule, which allows one to waive based on extreme hardship to a qualifying relative the 3 or 10 year bars in advance of the departure from the US in order to process the immigrant visa at the US consulate. These suggestions are by no means exhaustive and may not be accomplished by January 20, 2017 when Trump takes office, so DACA recipients must consult with advocacy organizations and attorneys to fully explore all their options.

A lawful permanent resident who may have a criminal conviction cannot be immediately removed from the United States. He is first subject to removal hearing and must be served with a Notice to Appear. Not all criminal conduct results in removal. Even if a criminal conviction is considered a crime involving moral turpitude or an aggravated felony, it should be carefully considered if such a characterization can be contested under the categorical approach. This approach, best exemplified in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) and Descamps v. United States, 133 S. Ct. 2276 (2013), requires identification of the minimum prosecuted conduct that violates the criminal statute rather than the conduct of the respondent in removal proceedings.

Permanent residents are in a rush to file for naturalization, but the lawyer must carefully review the client’s history to ensure that nothing comes up during the naturalization process that could trigger some ground of removability, such as an improperly obtained green card or a criminal conviction. If the client still wants to take the risk of applying for naturalization, the lawyer must also determine if there are grounds for a waiver in removal proceedings, and should also advise that it is likely that discretionary waivers may be less readily granted within a bureaucracy that is oriented towards enforcement rather than grating immigration benefits.

It may be an exercise in futility for the lawyer to advise a client to move residence so as to avoid detection, even when the client is not being actively pursued and there is no outstanding warrant. If the DHS wishes to initiate removal proceedings, it can do so by serving the Notice to Appear by mail. It would be better if the undocumented immigrant received the NTA at the last known address that the government has rather than not receiving such an NTA and being subjected to an in absentia removal order. While an in absentia order can be reopened for lack of notice, it is time consuming, stressful and the results are uncertain. In any event, an AR-11 has to be filed whenever a person changes address. If a person with a removal order reports that she is being pursued by ICE agents, it would be ethically problematic for the lawyer to advise this person to evade ICE agents by changing address. Remaining in the US after a removal order is a felony under INA 243 and a lawyer should not be advising a client to engage in criminal conduct, although a lawyer could, if applicable, advise such a client on ways to overcome the removal order or to seek a stay of removal or apply for other prosecutorial discretion remedies such as an order of supervision. It would be clearly unethical for a lawyer to advise a client who is facing ongoing removal proceedings to not honor hearing dates as it would lead to a removal order in absentia, and the lawyer will be held responsible for providing ineffective assistance to her client.

The immigration lawyer must also be mindful of potential criminal penalties that can be applied for providing advice to a person who is unauthorized to remain in the United States. There exists a relatively untested provision under INA 274(a)(1)(A)(iv) which criminally penalizes any person who:

“encourages or induces an alien to come to, enter, or reside in the United States in knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law”

This provision, which involves encouraging someone to reside in the US in violation of law, is a companion to other related criminal provisions such as “brings to” or “smuggling” (INA 274(a)(1)(A)(i)), “transportation” (INA 274(a)(1)(A)(ii)), and “harboring” (INA 274(a)(1)(A)(iii)). While these three provisions relating to smuggling, transportation and harboring are discrete and Congress intended to cover distinct groups of wrongdoers, see US v. Lopez, 590 F.3d 1238 (11^th Cir. 2009) the “encouraging” provision is more broad based and could potentially apply to a person who encourages an undocumented person who is already residing in the United States to do so in violation of the law. In U.S. v. Oloyede, 982 F.2d 133 (4^th Cir. 1992), a lawyer was convicted under a predecessor of this provision for representing persons at the former INS who were sold false social security and employment documents by a co-conspirator. Although these facts in U.S. v. Oloyede are rather egregious and would not usually apply to ethical lawyers, the following extract from the Fourth Circuit decision is worth noting:

Appellants maintain that Section 1324(a)(1)(D) is solely directed to acts bringing aliens into the country. However, the plain language states, “knowing that [the illegal alien’s] residence is or will be in violation of the law.” (Emphasis supplied). Because the use of the verb “is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country.

To the best of this author’s knowledge, the “encouraging” provision has never been applied to a lawyer providing routine advice to an unauthorized immigrant who desires to continue to remain in the United States in hope for a remedy in the future, such as a US citizen child turning 21 in a few years, that would enable her to adjust status in the United States or in the hope that the law may change to his benefit. However, it is important to know that such a provision of this sort does exist and could be applied more broadly by an administration that has an enforcement mindset. In the event of overzealous prosecution, a lawyer who carefully remains within the confines of ABA Model Rule 1.2(d) would have a good defense. Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Finally, when immigrants are frightened and vulnerable, they will seek desperate measures such as applying for political asylum. The filing of a political asylum application enables the individual to remain in the United States and even apply for work authorization if the application has been pending for 150 days or more. If there is a meritorious claim for asylum, a lawyer ought to pursue it on behalf of the client, after the client has been informed, and provided consent, about the risks. There is a possibility that the claim, if not granted at the affirmative level, could be referred before an Immigration Judge in removal proceedings. If the client is unable to win before an Immigration Judge, he or she would end up with a final removal order. If the asylum claim is filed after one year, and the exceptions to filing after one year cannot be met, there is an even greater chance that the application will be referred into removal proceedings. For a claim to be meritorious the lawyer must ascertain whether the client can provide a detailed statement regarding his claim to asylum and there is a sufficient nexus on one of the protected grounds. Even if there is a precedent decision against a particular ground for an asylum claim, the lawyer must ask whether there are good faith grounds to seek a reversal of the adverse precedent decision.

The standard for what constitutes a meritorious claim is provided in ABA Rule 3.1:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Thus, even if the ultimate objective of filing an asylum application is to ultimately seek cancellation of removal, the asylum claim must still be meritorious. It behooves the ethical practitioner to refer to recent AILA resources, namely, Ethical Considerations Related to Affirmatively Filing an Application for Asylum for the Purpose of Applying for Cancellation of Removal and Adjustment of Status for a Nonpermanent Resident and Nine Ethical Questions to Consider before Filing Asylum Claims to Pursue COR.

Last and not the least, however sympathetic the circumstances may be, the ethical lawyer should never assist in filing an application knowing that it contains a false statement of fact or law. Although there are clear rules, ABA Model Rule 3.3 and 8 CFR 1003.103(c), that expressly prohibit such conduct, the lawyer could also be implicated under federal criminal provisions such as 18 USC 1001, 18 USC 371 and 18 USC 1546.

Extreme Absurdity: A Response to the “Extreme Vetting” Questions Proposed By Potential DHS Secretary Kris Kobach

November 30, 2016/0 Comments/in uncategorized/by David Isaacson

Kansas Secretary of State Kris Kobach, rumored to be a potential Secretary of Homeland Security in a Donald Trump Administration, met with Mr. Trump last Sunday, apparently to discuss some of his plans for the Department. During a media photo opportunity, Mr. Kobach held a binder and stack of papers in such a way that a page was left partially visible and allowed an Associated Press photographer to capture some of the “Department of Homeland Security Kobach Strategic Plan for First 365 Days.” Although there are many horrifying things about that plan, some of which this author may address further in future blogs, one aspect of Kobach’s plan that particularly caught my attention was the proposal to “Add extreme vetting questions for high-risk aliens: question them regarding support for Sharia law, jihad, equality of men and women, the United States Constitution.” This blog provides an initial reaction to that proposal.

It appears that by “high-risk aliens”, Kobach was likely referring predominantly to aliens from countries with a large Muslim population, or perhaps just Muslims themselves. In the immediately prior item of his outline, Kobach describes the NSEERS (National Security Entry-Exit Registration System) program he wants to “update and reintroduce” as “track[ing]” “all aliens from high-risk areas.” In its original form, NSEERS applied to men over the age of 25 from 25 countries, all but one of which was a Muslim-majority country. (Specifically, NSEERS included nonimmigrants from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, Yemen, and the one exception, North Korea.) Thus, Kobach evidently associates “high-risk areas” predominantly with Muslim countries. It is not entirely clear whether by “high-risk aliens” he means to describe only those from the so-called “high-risk areas”, or whether he would cast a broader net.

Of the four questions that Kobach proposes to ask the “high-risk aliens”, the question about “support for . . . the United States Constitution” is comparatively unobjectionable, other than with respect to the discriminatory context in which he apparently proposes to ask it. Applicants for naturalization as U.S. citizens are already required by law to be “attached to the principles of the Constitution of the United States,” INA 316(a). The Form N-400 Application for Naturalization already asks applicants, “Do you support the Constitution and form of government of the United States?” One might perhaps take issue with Kobach’s apparent proposal to expand use of this question outside the naturalization context in which it was statutorily authorized, but it is the other three proposed questions that are truly problematic.

To ask Muslim immigrants about their “support for Sharia law” is rather like asking Jewish immigrants about their “support for Halacha”, or Catholic immigrants about their “support for canon law”, or other Christian immigrants about their “support for Biblical principles”. While the Code of Canon Law of the Catholic Church has the advantage from an American perspective of having an English common name, many Americans may not realize that Sharia is merely an Arabic word for traditional Muslim religious law, just as Halacha – another word with which many Americans may not be familiar – is merely a Hebrew word for traditional Jewish religious law. Different Muslims will have different interpretations of what “Sharia law” has to say about a particular subject, just as different Jews will have different interpretations of what “Halacha” has to say about a particular subject. (Some subgroups of Muslims may entirely dispute the applicability of Sharia as historically understood, just as Reform Judaism differentiates between its approach to one’s relationship with God and the approach suggested by Halacha.) Some may cite Sharia to justify horrific actions, but then again Yigal Amir claimed that his assassination of Israeli Prime Minister Yitzhak Rabin was justified by Jewish religious law; in neither case is it appropriate to charge all followers of the religion or some version of its laws with support for the horrific actions in question. To ask about “support for Sharia law” sheds only very limited light on what the person being asked actually believes, even if we indulge the questionable assumption that anyone’s religious beliefs are the proper concern of the U.S. government. Perhaps it would be a different story if Kobach proposed to ask a more nuanced question about whether those seeking to come to the United States believed that any and all religious law should be subordinate to democratically enacted civil law, but it does not appear that this is what he has in mind.

Kobach’s proposed question about “jihad” suffers from a somewhat similar defect. The word “jihad” literally means “struggle” or “effort”, and the BBC has said that “Many modern writers claim that the main meaning of Jihad is the internal spiritual struggle”, although there is also support for interpreting the word to mean a military struggle. The Merriam-Webster dictionary recognizes multiple meanings of the word, ranging from “a holy war waged on behalf of Islam” to “a personal struggle in devotion to Islam especially involving spiritual discipline” to “a crusade for a principle or belief”. We do not assume that supporters of Campus Crusade for Christ will use violence in their struggle to spread Christianity, nor do we ask Christian prospective immigrants their opinion of the medieval Crusades. If Kobach had proposed to ask a more general question about support for the use of violence, or even the use of violence motivated by perceived religious conflict, that would be a different story, but his proposed inquiry only covers this single word. Norwegian far-right terrorist Anders Behring Brevik believed that he was at war with Muslims. Had we known this, does Kobach believe we should not have excluded Brevik if he had applied to come to the United States, but should have excluded any Muslim victims of his who supported internal spiritual struggle?

Even Kobach’s proposed question about “equality of men and women”, innocuous though it may seem and tied to an important American civic value though it may be, has a problematic dimension in the context of questioning that would apparently be directed towards religious beliefs. A number of religions that Kobach presumably does not wish to target do not provide for strict equality of men and women, in the sense of the rights of men and women in a specifically religious context. Less than a month ago, Pope Francis ruled out the possibility of a woman ever serving as a Catholic priest. Female rabbis are extremely rare in Orthodox Judaism, with one first taking the title just this year, and with one main U.S. Orthodox rabbinical group having purported to ban the practice roughly a year ago, although female rabbis have been common in the Reform, Reconstructionist, and Conservative movements of American Judaism over the past several decades. In many Orthodox Jewish interpretations of Halacha, ten men, not women, are required to make up a “minyan”, or quorum to say certain prayers, although the Committee on Jewish Law and Standards of the Rabbinical Assembly in the Conservative Movement has ruled that women can count towards a minyan. Some Christians believe that wives should submit to their husbands. Could followers of those beliefs truthfully say, under penalty of perjury, that they supported full equality of men and women? While I vehemently disagree with those who would deny women full religious equality, and I personally favor a more gender-egalitarian approach, it seems to me that it would represent a major break with our own civic traditions for the U.S. government to exclude immigrants who hold the less egalitarian Christian or Orthodox Jewish beliefs discussed above—or the Muslim analogue of those beliefs.

Kris Kobach’s proposed “extreme vetting” questions would not be the first time the U.S. government has utilized a problematically worded question against a minority group. In the Japanese-American internment camps of the Second World War era, even U.S. citizens of Japanese descent were asked whether they would “forswear any form of allegiance or obedience to the Japanese emperor, or any other foreign government, power, or organization?” Many of these citizens “resented being asked to renounce loyalty to the Emperor of Japan when they had never held a loyalty to the Emperor.” (The question might be compared in this respect to the old example of an unfair yes-or-no question, “have you stopped beating your wife?”)

The internment of Japanese-Americans during World War II has been widely recognized as a horrible mistake, and survivors of the camps were awarded restitution in 1988 as well as given a formal apology by the U.S. government. However, one prominent supporter of Donald Trump recently made news by suggesting that the internment of Japanese-Americans was a “precedent” for a registry of Muslims. That supporter had, in fact, raised the analogy in support of Mr. Kobach’s proposal to reinstate NSEERS, which is related to his proposed “extreme vetting” questions as discussed above. The parallels are extremely troubling. While it may seem that “extreme vetting” questions regarding aspects of religious belief are some distance away from actual internment of a minority group, it is important, as the Supreme Court said in West Virginia State Board of Education v. Barnette of a different attempt to enforce government-sponsored doctrine (regarding a mandatory flag salute), that we “avoid those ends by avoiding those beginnings.” This is not a road down which the United States should travel.

Brexit and Xenophobia vs. Immigration and Innovation

July 1, 2016/0 Comments/in Blog/by Cyrus Mehta

In the backlash against globalization, as seen in the vote in favor of Brexit, there is an even more insidious backlash against immigration. The world has prospered because of the expansion of trade and technology, and also due to the free movement of capital and people. Millions of the world’s poor people have been lifted from poverty as a result of globalization. In turn, people in richer countries have been able to buy products and services at lower cost. Businesses have also been able to sell goods and services outside beyond national boundaries, thereby becoming more profitable and hiring more people.

Politicians like Donald Trump do not see it this way, who wish to tear up trade deals such as the North American Free Trade Agreement. So does Bernie Sanders, who while speaking with a softer voice, appears to be in harmony with Trump in his critic of globalization and trade deals. While Hillary Clinton is probably in favor of trade deals, she back tracked on the Trans-Pacific Partnership, after being attacked by Sanders during the primaries. It is true that globalization does not always have winners. Those who get displaced need to land on a safety net so that they can re-train and develop new skills. The safety nets, unfortunately, are not keeping up with the enormous changes in technology that increase productivity through innovative technologies, which include rapid strides in robotics and artificial intelligence. During this transition that promises a better future for all in the long run, politicians exploit this shortcoming to lash out against immigrants in their countries and foreign-based workers outside who are paid less, when the true disrupter is technology and innovation.

As Fareed Zakaria so succinctly puts it:

“Manufacturing as a share of all U.S. jobs has been declining for 70 years, as part of a transition experienced by every advanced industrial economy. All other developed countries from Australia to Britain to Germany — which is often seen as a manufacturing powerhouse — have seen similar declines over the past several decades. Even South Korea, which has tried many kinds of protectionism, has experienced a drop in manufacturing as it has become a more advanced economy. This shift is partly a result of free trade, but serious studies show that the much larger cause is technology. One steelworker today makes five times as much steel per hour as he or she did in 1980.”

Immigration lawyers know first- hand how free trade and immigration has been beneficial for America. It is due to NAFTA that Canadians and Mexicans can enter the United States on TN visas to work for US employers who seek them out even while the H-1B visa, the main workhorse nonimmigrant visa, has hit the annual numerical cap. Singaporeans and Chileans can enter the United States on H-1B1 visas that ensue from trade deals and so can Australians on an E-3 visa. Nationals of many countries that have treaties with the United States can come here on E-1 and E-2 visas as investors and traders. While the L-1 visa does not ensue from a treaty, it too is premised on the needs of multinational corporations, big and small, in a globalized world. Intra-company transferee managers, executives and specialized workers can work for a US branch, subsidiary, parent or affiliate of a foreign company on L-1 visas. Despite there not being H-1B visas, the fact that other visas are still available, allow US companies to remain globally competitive by tapping into skilled and professional foreign workers. If it were not for these visas, the entry of skilled workers into America would be at a standstill.

We need to embrace immigrants, and view them as an asset, rather than as people who steal jobs and work cheaply. Immigration not only provides a complimentary workforce, but also generates innovation that will create the next generation of jobs that require new skills. If we have a robust and welcoming immigration system that would not shackle the worker to one employer, but would allow mobility and a quick pathway to permanent residency, then there would be no suppression of wages. Everyone would be on a level playing field, and market forces would ensure that wages remain competitive. Indeed, by encouraging more movement of people to America and other richer countries, it would have the effect of wages increasing worldwide and potentially a convergence in wages for highly skilled people. With the advent of technology that has increased productivity manifold times, manufacturing would be based in places not where the wages are lower, but where there is an abundant supply of skilled workers, technology and innovation. If the free movement of people is restricted, employers will be forced to move operations to other countries, thus perpetuating wage disparity.

This brings us to the H-1B visa program that has a mere 65,000 visas, plus an additional 20,000 for those who have graduated with advance degrees. Due to the well publicized layoffs of US workers at companies like Disney by H-1B workers, there appears to be no appetite by Congress to increase H-1B visa numbers even though there is a dire need to do so. By continuing to limit and stifle the H-1B program, US employers will remain less competitive and will not be able to pass on the benefits to consumers. We need more H-1B visa numbers rather than less. We also need to respect H-1B workers rather than deride them, even if they work at IT consulting company, as they too wish to abide by the law and to pursue their dreams in America. The best way to reform the H-1B program is to provide more mobility to H-1B visa workers. By providing more mobility, which includes being able to obtain a green card quickly, H-1B workers will not be stuck with the employer who brought them on the H-1B visa, and this can also result in rising wages within the occupation as a whole. Mobile foreign workers will also be incentivized to start their own innovative companies in America, which in turn will result in more jobs. This is the best way to reform the H-1B visa program, rather than to further shackle it with stifling laws and regulations, labor attestations and quotas. Market forces can better control the H-1B program from abuses and distortions than labor attestations!

As we meditate over yet another July 4^th weekend celebrating America’s independence, we should note that the world faces a stark choice today. Should countries be more open or less open? The ideological line between left and right is blurring as another more distinct line is being drawn between open and closed nations. America was founded on principles of openness and its ability to embrace people from all over the word, but that may change if the proponents for a closed and isolated world have their way. If America becomes closed, just like Britain will likely be after Brexit, there will be fewer opportunities for businesses to sell outside national borders, and they will be further stymied and unable to grow if they cannot gain access to the best talent. Moreover, innovation will get stifled if the best people from around the world cannot cluster together to develop new products and change paradigms. Immigration is what fuels these advances, which in turn promises more growth and prosperity. Do we want to revive the industries of the past to bring back those illusory jobs, such as steel manufacturing or coal mining, after technology has already marched on, or do we want to imagine about autonomous vehicles (notwithstanding the recent Tesla car setback), nanotechnology that will automatically repair our cells and space travel through a wormhole? Brexit and xenophobia go hand in hand. Will America buck this trend in favor of immigration and innovation when it goes to the polls in November 2016?

Why Birthright Citizenship Is Most Wonderful For America

August 22, 2015/0 Comments/in Blog/by Cyrus Mehta

Donald Trump advocating that the United States should end birthright citizenship in his immigration reform plan is nothing new. Politicians have frequently brought up the so called dangers of birthright citizenship to pander to their base. Recently in 2011, Steve King (R-IA), one of the most anti-immigrant members of Congress, proposed the Birthright Citizenship Act of 2011, which did not go anywhere because of its absurdity. Future attempts too will similarly fail since birthright citizenship is too entrenched in the fabric of this nation. It is also good for America.

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 of Trump and other Republican presidential contenders who are parroting him 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 Dred Scottdecision 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. Wilkins, 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 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 Horton 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.

One can also pick a leaf from the State Department’s book on birthright citizenship. Contrary to the common notion -that parents come to the US to give birth to children so that they may become US citizens – some non-US citizen parents do not desire that their minor children remain US citizens, notwithstanding their birth in the US. Their main motivation is that if they choose not to live in the US permanently, they would rather that the child enjoys the citizenship of their nationality so that he does not suffer any potential impediments later on in that country, such as the inability to vote, attend educational institutions or stand for elected office. This may not be possible if the child is born in the US, since the State Department’s regulation provides that “[i[t is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid passport.” See 22 CFR §53.1.

The relevant extract from the State Department’s 7 FAM 1292 is worth noting to show how difficult it is for a child born in the US not to be considered an American citizen:

Occasionally, CA/OCS or a post abroad will receive an inquiry from the parent of a child born in the United States who acquired US citizenship at birth protesting the “involuntary” acquisition of US citizenship.
Jus soli (the law of the soil) is the rule of common law under which the place of a person’s birth determines citizenship. In addition to common law, this principle is embodied in the 14th Amendment to the U.S. Constitution and the various U.S. citizenship and nationality statutes. The 14th Amendment states, in part, that: All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
In U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court examined at length the theories and legal precedents on which U.S. citizenship laws are based and, in particular, the types of persons who are subject to U.S. jurisdiction.
Children born in the United States to diplomats accredited to the United States are not subject to U.S. jurisdiction and do not acquire U.S. citizenship under the 14th Amendment or the laws derived from it [citation omitted].
Parents or guardians cannot renounce or relinquish the U.S. citizenship of a child who acquired U.S. citizenship at birth.

Since a Constitutional amendment requires a favorable vote of two thirds of each house of Congress and ratification by three quarters of the states or the holding of conventions in three quarters of the states, efforts will be made, like H.R. 140 did, to tinker with section 301 of the Immigration and Nationality Act, which replicates the 14th amendment. H.R. 140 strove to narrowly limit birthright citizenship to a person born in the US to parents who were either citizens of the United States or lawfully admitted for permanent residence.

Assuming that such a bill got enacted into law, it would deprive the child of a nonimmigrant parent from automatically becoming a US citizen who is lawfully in the US in H-1B status, and approved for permanent residence but for the fact that she is stuck in the employment-based preference backlogs for many years. What would be the status of such a child who was not born of parents of the pedigree prescribed in such a law? Would the child be rendered deportable the minute it is born by virtue of being an alien present in the US without being admitted or paroled under INA section 212(a)(6)(A)(i)? Moreover, would such a law also have retroactive application? It is likely to have retroactive effect since a Constitutional provision ought to only be interpreted in one way for all times. If a new statute interprets the Fourteenth Amendment’s “subject to the jurisdiction thereof” to not include children of parents who were undocumented, or who were not citizens or permanent residents, and this interpretation is upheld by a court, then children who were born as US citizens will no longer be considered citizens. How far would one have to go then to strip people of citizenship? Parents, grandparents and even great grandparents will no longer be considered citizens, in addition to the child. Millions upon millions of Americans ensconced in comfortable suburbia will overnight be deemed to be non-citizens, perhaps even illegal aliens and deportable. The repealing of birthright would certainly have unintended consequences of a nightmarish quality, and it is quite likely that some of the repeal’s most strident champions might be declared as “illegal aliens” and unfit to run for office!

The only historic exceptions to those subject to the jurisdiction of the US are diplomats and enemies during the hostile occupation of a part of US territory. A diplomat, in accordance with Wong Kim Ark, is not subject to the jurisdiction of the US as a diplomat enjoys immunity from US law, but a child of such a diplomat born in the US is at least deemed to be a permanent resident. See Matter of Huang, Interim Decision #1472 (BIA May 27, 1965). Congress even passed legislation to ensure that children of all Native Americans are US citizens. See INA section 301(b). An undocumented immigrant is undoubtedly subject to the jurisdiction of the US. If he commits a crime, he will surely be prosecuted. He can sue and be sued in US courts, and Uncle Sam gleefully collects his taxes as well as his contributions to social security (even if he is unable to claim it later on). One cannot liken an immigrant who has entered the US without inspection with the objective of finding work to a member of a hostile force occupying a part of the US. When a hostile force occupies any part of the US, the laws of the US are no longer applicable in the occupied territory. Thus, children of an occupying enemy alien have not been considered to be born “subject to the jurisdiction” of the US as they did not derive protection from or owe any obedience or allegiance to the country. Inglis v. Sailor’s Snug Harbor, 28 U.S. 99 (1830). By contrast, a terrorist who enters the US in a nonimmigrant status, such as on an F-1 student visa with an ulterior motive to commit an act of terrorism, unlike a member of a hostile occupying force, is subject to the jurisdiction of the US as she can be convicted or treated as an enemy noncombatant, and if she gives birth to child here, the child ought to be a US citizen under the Fourteenth Amendment.

It has also become fashionable for politicians to refer to such children born in the US as “anchor babies,” on the assumption that the US citizen children will legalize their undocumented parents. While this is theoretically possible, the parent will have to wait until the US citizen child turns 21 before the parent can be sponsored for permanent residence. If the parent came into the US without inspection, the parent will have to depart the US and proceed overseas for processing at a US consulate, and will likely have to wait for an additional 10 years. The waiting time is rather long under such a game plan: 21 years, if the parent was inspected; or 31 years, if the parent crossed the border without inspection.The repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations.

Now, as a nation, we don’t promise equal outcomes, but we were founded on the idea everybody should have an equal opportunity to succeed. No matter who you are, what you look like, where you come from, you can make it. That’s an essential promise of America. Where you start should not determine where you end up.

Barack Obama