In a surprise move, the US Citizenship and Immigration Services (USCIS) has recently drawn up an implementation plan for roll out of President Trump’s executive order (EO) that seeks to restrict birthright citizenship.
This EO, signed by Trump on Jan 20, curtailed babies born in the US from getting automatic American citizenship unless one of the parents was a US citizen or green card holder at the time of birth of the child. USCIS explains that in the absence of a parent being a US citizen or green card holder, the new born child will take on the same status as that of the mother.
This plan takes into cognisance the preliminary court injunction but states that it has been drawn up in the event that the EO is permitted to go into effect. It seeks to address certain legal issues.
Currently, children of foreign diplomats born in the US are excluded from American citizenship due to their parents ‘not being subject to US jurisdiction’. The implementation plan outlines expansion of this exclusion to include children born to individuals in unlawful status or lawful but temporary status (such as H-1B holders).
Cyrus D. Mehta, founder of an immigration law firm based in New York, told TOI, “The USCIS has a sinister plan to implement Trump's ‘currently unconstitutional’ birthright citizenship executive order, in case the EO which is currently blocked is allowed to go into effect. Under it, the newborn child will not automatically be a US citizen but would take on the lawful but temporary status of the mother.”
In the case of an Indian couple, if the husband holds an H-1B (temporary non-immigrant work visa) and the wife holds an H-4 (dependent visa), the child born in the US to this couple would get a dependent visa status and not American citizenship.
As mentioned by TOI earlier, given the decades long backlog for an employment based linked card, hundreds of Indian families with new-borns (post coming into effect of the EO) would be hard hit as neither parent would be a citizen or green card holder and the child would no longer be accorded American citizenship on birth.
USCIS proposes to allow children born in the US to register for lawful immigrant status – such as H-4. This approach is modelled after how children of diplomats are currently handled under US immigration law.
“If the mother is unlawfully present the child will also be considered unlawfully present as soon as it is born. The immigration authorities can technically remove the child who is unlawfully present,” adds Mehta.
Immigration experts point out many challenges that could arise. What would be the situation if a child is born to a mother whose non-immigration visa status such as an H-4 is pending? Would it ridiculously result in the child being born in the USwith a similarly pending status? questions Mehta.
Several immigration attorneys with whom TOI spoke are hopeful that if the litigation reaches the Supreme Court, the EO will be treated as unconstitutional.
This EO, signed by Trump on Jan 20, curtailed babies born in the US from getting automatic American citizenship unless one of the parents was a US citizen or green card holder at the time of birth of the child. USCIS explains that in the absence of a parent being a US citizen or green card holder, the new born child will take on the same status as that of the mother.
This plan takes into cognisance the preliminary court injunction but states that it has been drawn up in the event that the EO is permitted to go into effect. It seeks to address certain legal issues.
Currently, children of foreign diplomats born in the US are excluded from American citizenship due to their parents ‘not being subject to US jurisdiction’. The implementation plan outlines expansion of this exclusion to include children born to individuals in unlawful status or lawful but temporary status (such as H-1B holders).
Cyrus D. Mehta, founder of an immigration law firm based in New York, told TOI, “The USCIS has a sinister plan to implement Trump's ‘currently unconstitutional’ birthright citizenship executive order, in case the EO which is currently blocked is allowed to go into effect. Under it, the newborn child will not automatically be a US citizen but would take on the lawful but temporary status of the mother.”
In the case of an Indian couple, if the husband holds an H-1B (temporary non-immigrant work visa) and the wife holds an H-4 (dependent visa), the child born in the US to this couple would get a dependent visa status and not American citizenship.
As mentioned by TOI earlier, given the decades long backlog for an employment based linked card, hundreds of Indian families with new-borns (post coming into effect of the EO) would be hard hit as neither parent would be a citizen or green card holder and the child would no longer be accorded American citizenship on birth.
USCIS proposes to allow children born in the US to register for lawful immigrant status – such as H-4. This approach is modelled after how children of diplomats are currently handled under US immigration law.
“If the mother is unlawfully present the child will also be considered unlawfully present as soon as it is born. The immigration authorities can technically remove the child who is unlawfully present,” adds Mehta.
Immigration experts point out many challenges that could arise. What would be the situation if a child is born to a mother whose non-immigration visa status such as an H-4 is pending? Would it ridiculously result in the child being born in the USwith a similarly pending status? questions Mehta.
Several immigration attorneys with whom TOI spoke are hopeful that if the litigation reaches the Supreme Court, the EO will be treated as unconstitutional.
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