Rishi P. Oza
By Rishi P. Oza
Increased Scrutiny on H-1B Visa Applicants at US Consulates Abroad
Per a recent announcement from the US Department of State, US Consulates worldwide are increasing the scrutiny of H-1B visa applications, for the purpose of national security and public safety. Reports have indicated that virtually all H-1B applications are now being cancelled and rescheduled until March 2026 or later, with timetables varying depending upon the specific US Consulate abroad. During this time, US Consular services are increasing vetting operations, including scrutinizing applicant work histories, social media accounts and other publicly available information. As a result, the issuance of new visas to individuals seeking to return to the United States are being delayed.
The announcement from the US Department of State states that US Consulates will be conducting “an online presence review… for all H-1B applicants and their dependents, in addition to the students and exchange visitors. To facilitate this vetting, all applicants for H-1B and their dependents (H-4), F, M, and J non-immigrant visas are instructed to adjust the privacy settings on all of their social media profiles to ‘public.’” The additional scrutiny is designed to “identify visa applicants who are inadmissible to the United States, including those who pose a threat to U.S. national security or public safety.”
Based upon these new circumstances, my immigration firm recommends delaying any non-mandatory international travel for those individuals needing visa issuance until further notice. Individuals that currently have valid visas can continue to travel undisturbed, as this new change is only applicable to H-1B visa applicants needing visa issuance. What remains unclear is whether this increased scrutiny will expand to other visa categories, but one would assume that US Consulates will eventually apply this same heightened scrutiny to all visa applications.
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Supreme Court to Hear Arguments on Trump’s Birthright Citizenship Change
The United States Supreme Court has agreed to hear arguments on President Trump’s Executive Order (“EO”) limiting the application of the 14th Amendment to the Constitution to the children of US citizens and lawful permanent residents. The EO, dated January 20, 2025, seeks to reinterpret the 14th Amendment, which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
Under the President’s reading, the phrase “subject to the jurisdiction thereof” excludes those individuals from citizenship if they were born from a mother who was unlawfully present in the United States and the father was not a U.S. citizen or lawful permanent resident (LPR) at the time of said person’s birth, 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, visiting on the Visa Waiver Program or being present with a student, work, or tourist visa) and the father was not a U.S. citizen or LPR at the time of said person’s birth.
This interpretation would exclude an entire class of youngsters with a disproportionate impact upon Indian citizens lawfully present in the United States on H-1B visas, but unable to obtain LPR or US citizenship status due to the bottleneck associated with visa retrogression. Indian citizens seeking green cards through their employers often wait nearly 13 years to complete the process whereas a citizen of neighboring Pakistan, Bangladesh, Nepal or Sri Lanka would wait approximately 3 – 3 ½ years for the same process. The EO, if implemented, would result in the children of such H-1B workers being denied US citizenship, resulting in them being relegated to nonimmigrant status.
In support of its position, the Trump Administration argues that the 14th Amendment was “adopted to confer citizenship on the newly freed slaves and their children, not on the children of aliens temporarily visiting the United States or of illegal aliens.” However, when looking at the issue through the plight of Indian H-1B workers, the conclusion that they are in the US “temporarily”, while legally correct, is absurd on its face. Employment-based immigration practitioners often have Indian clients that have been in H-1B status for over a decade who are simply waiting for their green cards to be issued.
Their children, most of whom have grown up in the US, are hardly foreigners and often have little to no knowledge of their parents’ homeland, aside from the occasional family vacation. Individuals challenging Trump’s EO rely on a 1898 Supreme Court decision (US v. Wong Kim Ark), which states that the child born in the United States born to Chinese parents who were not US citizens was also as US citizen at birth based upon a plain reading of the 14th Amendment. The case is slightly distinguishable, as Wong Kim Ark was born to Chinese citizens that were permanently residing in the United States; Trump’s EO targets children not born to individuals with permanent residency status.
If the EO is upheld, the ensuing regulatory chaos would be enormous. Because individuals are not granted birth certificates by the federal government, but instead by individual states, each state would need to engage in an inquiry as to the immigration background of each parent to determine whether citizenship was conferred upon a child. Aside from the practical consequences, the Administration’s argument that children subject to the EO are not “subject to the jurisdiction” of the United States is curious. If this conclusion were accurate, then these same individuals would ostensibly not be deportable from the United States as they would not be “subject” to the country’s jurisdiction.
Rishi P. Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: roza@rbrownllc.com.
Opinions expressed above are those of the writer and not necessarily of the publisher or editor.
