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IMMIGRATION FEBRUARY 21, 2025 | The Indian Eye 35

H-1B petition is filed, for example, could parents are clearly subject to prosecution that status. U.S. citizens may also be citi- ferring birthright citizenship to their child
technically be in violation of his status. in the United States as well as temporary zens of other countries and may owe their would make no sense. It would also make
According to Professor Gerald Neu- noncitizens. They can also hardly be con- allegiance to a foreign government, the no sense to deem a parent who was in
man, “[T]he framers of the Fourteenth sidered to be part of an invading army U.S. government, or both, but both U.S. technical violation of their H-1B status
Amendment had strong reason from de- that has ousted the local operation of law. citizens and lawful permanent residents as undocumented at the time of the birth
siring a constitutional settlement of the is- Even the argument that undocumented qualify under Trump’s executive order to to her child. It would also be unfair to de-
sue of birthright citizenship. They had just parents and nonimmigrants owe their al- confer birthright citizenship to their chil- prive a parent in lawful H-1B status who
overthrown a system founded on denial legiance to a foreign government rather dren born in the U.S. has been waiting for their green card for
of political membership in the country to than to the U.S. government is spurious. In United States v. Wong Kim Ark, over a decade from conferring birthright
a hereditary category of inhabitants. The Temporary residents in nonimmigrant sta- 169 U.S. 649 (1898), the Supreme Court citizenship to their child. The Supreme
Citizenship Clause was designed to pre- tus can remain in the U.S. for many years extended the Fourteenth Amendment to Court’s hallowed ruling on birthright cit-
vent the situation from happening again… as they wait for permanent residence. an individual who was born to parents of izenship established well over 125 years
[T]he supporters of the Citizenship Clause They could owe allegiance to the U.S. gov- Chinese descent and during a time when back a fundamental American value that
expressly confirmed their intent to protect ernment and so could an undocumented Chinese nationals were subjected to the all people born in the United States are
the children of Chinese parents by recog- immigrant just as a U.S. citizen would. Chinese exclusion laws. The principle es- equal at birth, regardless of their race,
nizing them as citizens.” See Statement of Lawful permanent residents, who are not tablished in Wong Kim Ark applies with religion, or the immigration or financial
Prof. Gerald E. Neuman, Societal and Le- U.S. citizens, could owe their allegiance equal vigor today. Excluding an allegedly status of their parents.
gal Issues Surrounding Children Born in to the U.S. government but also to a for- undocumented parent who has been a *Kaitlyn Box is a Partner
the United States to Illegal Alien Parents: eign government without risking losing DACA recipient since 2012 from con- at Cyrus D. Mehta & Partners PLLC.
Joint Hearing Before the Subcomm. on ___________________________________________________________________________________________________________________________________
Immigration & Claims and the Subcomm.
on the Constitution of the H. Comm. on Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
the Judiciary, 104th Cong. (1995). Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee;
The only exceptions were children former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
born to diplomats of foreign nations who Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
were not subject to the jurisdiction of the
United States as well as children born to for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees
parents accompanying an invading army of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York
that temporarily ousted the operation City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an
of local law. The framers also excluded
children born within Native American adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
tribes because they owed allegiance to the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael
their tribal nations rather than the United Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has also
States, but this preclusion was eventually
eliminated by the Indian Citizenship Act received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers
of 1924. in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
On the other hand, undocumented Global 2019 in immigration law, among other rankings.

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