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Citizenship by Birth Restricted for Legal Immigrants: Over 1 Million Indians in Green Card Queue Affected

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President Donald Trump’s executive order, titled ‘Protecting the Meaning and Value of American Citizenship,’ has shocked the Indian diaspora. While many believed the order would only affect children of illegal immigrants, it is now clear that legal immigrants, including H-1B, L, and F visa holders, will also be impacted. Many Indian families, who previously thought they were safe, are now facing an unexpected reality.

Over a million Indians waiting for an employment-linked green card will be affected by this change. Under the new executive order, children born within 30 days of the announcement to families where the mother is in the U.S. temporarily (e.g., on a visitor or non-immigrant visa like H-4 or a work visa) and the father is not a green card holder or U.S. citizen will no longer automatically receive U.S. citizenship.

In its November 7, 2024 edition, The Times of India accurately predicted the impact of this executive order, warning that it would be a major setback for the Indian diaspora. We highlighted that, under the new rule, at least one parent would need to be a U.S. citizen or green card holder for their child to gain automatic citizenship.

Pew Research’s 2022 analysis of U.S. Census data revealed that approximately 4.8 million Indian Americans reside in the U.S., with 34% (about 1.6 million) being born in the country and granted citizenship by birth.

The proposed plan has now become a reality. Children who are not born in the U.S. and whose families are stuck in the lengthy green card backlog face the possibility of self-deporting upon turning 21 or having to switch to another visa, such as a student visa. Previously, citizenship by birth offered Indian couples, who had been waiting for years in the green card queue, some relief if their child was born on American soil.

Trump’s executive order emphasizes that the 14th Amendment has never been interpreted to grant universal citizenship to everyone born in the U.S. It has always excluded those born in the U.S. but not “subject to the jurisdiction thereof.”

Regarding legal immigrants, the order specifies: “The privilege of U.S. citizenship does not automatically extend to persons born in the U.S. when the mother’s presence was lawful but temporary (such as under the Visa Waiver Program, or on a student, work, or tourist visa) and the father was neither a U.S. citizen nor a lawful permanent resident (green card holder) at the time of birth.”

Immigration attorneys argue that “citizenship by birth” is guaranteed by the 14th Amendment to the U.S. Constitution. The first lawsuit against this executive order has been filed by immigration rights organizations like the American Civil Liberties Union (ACLU).

Cyrus D. Mehta, a New York-based immigration attorney, explained to TOI: “If both parents are in the U.S. on non-immigrant visas, like H-1B or H-4 (dependent visa), Trump’s executive order will prevent the State Department from issuing a U.S. passport to their child, as they would no longer be considered ‘subject to the jurisdiction thereof.’ While this EO is likely to be challenged in court, I foresee the Trump administration pushing this all the way to the Supreme Court, hoping that the majority of conservative justices will support his new interpretation of the 14th Amendment.”

“If the courts uphold Trump’s interpretation, children born in the U.S. to H-1B and H-4 non-immigrants will no longer be recognized as U.S. citizens. This has a ripple effect. Many Indians are stuck in a century-long employment-based green card backlog, and their only hope was for their U.S.-born child to sponsor them once they turned 21. Now, this option will no longer be available.”

Greg Siskind, co-founder of Siskind Susser, an immigration law firm, remarked: “The unconstitutionality of this is striking. The phrase ‘subject to the jurisdiction thereof’ was never meant to apply to those targeted by the EO. It was intended for diplomats who are not under U.S. jurisdiction. This will be litigated, and I predict it will be blocked before it takes effect in 30 days. However, there are no guarantees.”

Fiona McEntee also highlighted the gender implications, saying, “And yes, the EO uses the terms father and mother because, of course, every child is born into a family with a mother and father!!!!”

Immigration attorney Ashwin Sharma commented to TOI, “The phrase ‘subject to the jurisdiction thereof’ has consistently been interpreted to include almost everyone born on U.S. soil, regardless of their parents’ immigration status, except for children of enemy occupiers or diplomats. A landmark Supreme Court ruling reaffirmed this interpretation, granting citizenship to a child born in the U.S. to Chinese immigrant parents who were not U.S. citizens. This decision set a precedent that leaves little room for reinterpretation.”

The future of children born to non-citizen, non-green card holding parents now lies in the hands of the U.S. courts.

Source: The Times of India

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