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IMMIGRATION JANUARY 31, 2025 | The Indian Eye 35

based on his or her interpretation of child as soon as it is born acquire H-4 by a U.S.-born adult child. Parents of to the child born to a mother in val-
“subject to the jurisdiction thereof” status? One needs to be admitted children born after the effective date id H-1B status, but who also had a
in the Fourteenth Amendment. Giv- into the US in H-4 status or change of the executive order may no longer pending I-485 application and is able
en its current conservative composi- from another nonimmigrant status have this opportunity. The executive to exercise portability under INA §
tion, however, Trump is hoping that into H-4 status. Perhaps, the Trump order will cruelly create a permanent 204(c)? Similarly, would a child born
the Supreme Court may ultimately administration may need to issue a underclass of noncitizens. The child to a nonimmigrant mother be consid-
accept his administration’s reinter- regulation recognizing H-4 status of in H-4 status would have to leave the ered a U.S. citizen if the father is an
pretation of the “subject to the ju- the child at the time of its birth. As US when it turns 21 unless it finds anonymous sperm donor in the U.S.?
risdiction thereof” language and up- we noted in a prior blog, the best a way to change to another nonim- Based on the plain language of the
hold the executive order. Even that chance for Indian-born beneficiaries migrant status or obtain permanent executive order, it appears likely that
is unlikely as the parents of a child of approved I-140 petitions who are residence independently such as U.S. citizenship would not extend to
who are undocumented or in nonim- trapped in the employment-based through marriage with a U.S. citizen. either of these children.
migrant status are always subject to second (EB-2) and third (EB-3) The executive order’s applica- *Kaitlyn Box is a Partner at
prosecution, unlike a diplomat who preference backlogs to obtain per- tion to other categories of children Cyrus D. Mehta & Partners PLLC.
enjoys immunity, and are thus subject manent residence without waiting for born in the U.S. is unclear. For ex-
to the jurisdiction of the US. It is also several decades could be sponsorship ample, would U.S. citizenship extend
highly unlikely that nonimmigrant ___________________________________________________________________________________________________________________________________
parents would be considered enemies Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
during a hostile occupation of a part Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee;
of US territory even if Trump might former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
like to imagine so! Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
In the meantime, the executive for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees
order creates much ambiguity and of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York
poses severe consequences for indi-
viduals who otherwise would have City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an
been U.S. citizens. The executive adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
order applies not only to children of the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael
two undocumented parents, but also Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has also
to the U.S. born children of parents received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers
who hold a valid nonimmigrant sta- in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
tus, such as H-1B and H-4. How will a Global 2019 in immigration law, among other rankings.

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