President Donald Trump’s executive order ( EO )- ‘Protecting the meaning and value of American citizenship, ’ has left the Indian diaspora stunned. Many believed that Trump’s remarks during his campaign path of ending ‘citizenship by beginning ’ may apply only to children of illegal immigrants. The overarching belief of many Indian families was that documented ( legal ) immigrants like the H-1B holders, or those on other work visas like the L ( intra-company ) visa, or even a F ( student ) visa, would not be impacted. They are in for a rude surprise.
Poll
What’s Your Biggest Concern About the New Executive Order?
Over a million Indians who are in a decades-long queue for an employment-linked green card will be impacted going forward, as a child born in a family ( thirty days from the date of the EO ) where the mother is here lawfully but temporarily (eg: as a visitor or on a non-immigrant visa – be it a dependent visa like H-4 or even a work visa ) and the ‘father ’ is not a green card holder or US citizen will not get automatic American citizenship.
Even read: First complaint filed in US district court contesting close to citizen by birth
The Times of India, in its book dated Nov 7, 2024, was one of the few media to effectively predict this plan of action. We had said, that if the Eu is signed, it may spell a huge set-back for the Indian community, as at least one family may be required to get a US citizen or green card holder.
According to an analysis of the US Census ( 2022 ) done by Pew Research, the US was home to about 4. 8 Indian Americans, of whom 34 % or 1. 6 million were born in the US ( and became American citizens by virtue of birth ).
The proposed plan of action is now a fact. Now, those children who are not born in the US, and whose families are caught in the decades extended green card delay have to home arrest on turning 21 or have to settle for another card – say an international pupil visa. Membership by beginning at least gave Indian people waiting countless in queue for a natural card a breath, If their child was born on British soil.
Even read: Indian diaspora with ageing children a nervous bit
Trump’s professional order points out that the 14th Amendment has never been interpreted to extend citizenship unanimously to everyone born within the US. It has always excluded from inheritance membership people who were born in the US but no ‘subject to the control of. ’
In the context of legal immigrants, it adds: “The opportunity of US citizen does not immediately extend to people born in the US: When the mother’s presence in the US at the moment of said person’s birth was constitutional but temporary ( such as, but not limited to, visiting the US under the supervision of the Visa Waiver Program or visiting on a student, work, or tourist visa ) and the father was not a US citizen or lawful permanent resident ( which means a green card holder ) at the time of said person’s birth. ”
According to immigration attorneys ‘citizenship by birth ’ is enshrined in the 14th amendment to the US constitution. The first lawsuit challenging this executive order has been filed by immigration right activists such as the American Civil Liberties Union (ACLU) and others.
Cyrus D. Mehta, New York based immigration attorney told TOI: “If both parents are in the US in a non-immigrant status, such as in H-1B and H-4 ( dependant visa ) status, under Trump’s EO the State Department will not issue a US passport to the child as they are no longer regarded as ‘subject to the jurisdiction thereof’. This EO will obviously be challenged in court, but I can see the Trump administration taking this all the way to the Supreme Court in the hope that the majority of conservative justices could agree with Trump’s new interpretation of the 14th Amendment. ”
“If the courts agree with Trump’s interpretation, going forward children of H-1B and H-4 non-immigrants who are born in the US, will not be recognized as US citizens. There is a ripple impact. Many Indians are caught in 100 year employment-linked green card backlogs, and so their only hope was for their child born in the US to sponsor them, when he/she attained 21 years. Now this will not be possible ”
Also read: Hiring freeze could lead to immigration processing delays, say experts
Greg Siskind, co-founder of Siskin Susser, an immigration law firm, said: “The unconstitutionality of this is stunning. The term ‘subject to the jurisdiction thereof’ was never intended to apply to those targeted by the EO. It was meant to apply to diplomats who are not subject to the jurisdiction of the US. This is going to be litigated and I predict it will be enjoined before it is effective in 30 days. But obviously there’s no guarantees here,”
Fiona McEntee also pointed out the gender-play here, “And yes, the EO uses the terms father and mother because obviously every child is born into a family with a mother and father! ! ! ! ”
Ashwin Sharma, immigration attorney told TOI, “The phrase ‘subject to the jurisdiction thereof’ has been consistently interpreted to include nearly all individuals born on US soil, irrespective of their parents ’ immigration status, other than children of enemy occupiers or diplomats. A landmark Supreme Court case reaffirmed this interpretation, granting citizenship to a child born in the US to Chinese immigrant parents who were not US citizens. This decision established a precedent which leaves little room for reinterpretation. ”
The fate of children who have non-citizen, non-green card holder parents now vests with the US courts.
