USCIS MAY DENY IMMIGRATION CASES WITHOUT AN RFE OR NOID — THERE MAY BE NO SECOND CHANCE TO SUBMIT MISSING DOCUMENTS
The Law Offices of Keshab Raj Seadie, P.C. is issuing an important alert to all clients, employers, foreign nationals, HR professionals, and immigration beneficiaries regarding a significant USCIS policy change that became effective August 5, 2026.
USCIS announced that immigration applicants and petitioners are expected to establish eligibility and submit all required initial evidence at the time the case is filed.
THE MOST IMPORTANT MESSAGE FOR EVERY CLIENT
DO NOT FILE AN INCOMPLETE IMMIGRATION CASE EXPECTING USCIS TO SEND AN RFE LATER.
Under the updated policy, USCIS officers have discretion, where permitted by applicable law and policy, to deny an immigration petition or application without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID).
In practical terms:
YOU MAY NOT GET A SECOND CHANCE TO PROVIDE A MISSING DOCUMENT.
If required initial evidence is missing, or the filing does not establish eligibility when submitted, USCIS may issue a denial instead of an RFE or NOID.
WHAT CHANGED?
USCIS announced on August 5, 2026, that it is reinforcing the principle that a person or company requesting an immigration benefit must establish eligibility at the time of filing.
According to USCIS, the updated policy restores officers’ discretion to deny certain deficient cases without first providing the applicant or petitioner an opportunity to correct the deficiency through an RFE or NOID.
USCIS specifically stated that the policy applies to qualifying benefit requests pending or filed on or after August 5, 2026, unless otherwise provided by regulations or USCIS policy.
This means the policy is already effective.
CLIENTS SHOULD NOT ASSUME AN RFE WILL SAVE AN INCOMPLETE CASE
For years, some applicants and petitioners became accustomed to the possibility that if evidence was missing or insufficient, USCIS would issue an RFE and provide additional time to respond.
That assumption is now extremely dangerous.
An immigration filing should be treated as though the initial submission may be your only opportunity to establish eligibility.
A case should not be filed merely to meet a deadline with the expectation that missing evidence can automatically be supplied later.
WHAT THIS MEANS FOR H-1B EMPLOYERS AND EMPLOYEES
For an H-1B petition, the filing package should be reviewed carefully before submission to ensure that all required evidence is included and internally consistent.
Depending on the case, this may include:
- Approved and properly certified LCA;
- Correct SOC code, wage level and occupational classification;
- Complete Form I-129 and required supplements;
- Employer support letter;
- Degree and transcripts;
- Credential evaluation where required;
- Evidence demonstrating the position qualifies as a specialty occupation;
- Evidence connecting the beneficiary’s education to the offered position;
- Current and prior I-797 approval notices;
- I-94 records;
- Passport and visa documentation;
- Pay statements and other maintenance-of-status evidence;
- End-client documentation, contracts, purchase orders, statements of work or similar documentation where relevant;
- Correct worksite information;
- Evidence supporting the requested employment period; and
- Any other initial evidence required by the form instructions or applicable USCIS rules and policy.
The LCA, I-129, employer letter, client documentation, job title, duties, SOC classification, wage, work location and requested employment period should be reviewed for consistency before filing.
H-4, H-4 EAD, L-1, O-1, I-140, I-485 AND OTHER CASES ARE ALSO AFFECTED
This warning is not limited to H-1B petitions.
Clients preparing H-4, H-4 EAD, L-1, L-2, O-1, TN-related USCIS filings, EAD applications, I-140 immigrant petitions, I-485 adjustment applications, I-130 family petitions, I-751 petitions, N-400 applications and other USCIS benefit requests should assume that required initial evidence must be submitted correctly with the original filing.
For example, depending upon the immigration benefit sought, missing or inadequate evidence concerning a marriage, birth relationship, qualifying employment, education, maintenance of status, extraordinary ability, multinational managerial relationship, priority date, lawful admission, or other fundamental eligibility requirement could create serious problems.
I-485 AND FAMILY-BASED CASES REQUIRE PARTICULAR ATTENTION
Applicants should make sure required civil and immigration documents are available before filing, as applicable, including:
Birth certificates, marriage certificates, divorce decrees, passports, I-94 records, immigration approval notices, financial sponsorship documentation, medical examination documentation when required, and other required initial evidence.
Do not assume that a critical missing document can simply be provided after USCIS issues an RFE.
I-140, EB-1A, EB-1C AND NIW PETITIONS
Employment-based immigrant petitions should be prepared as complete evidentiary records from the beginning.
For EB-1A and NIW cases, merely submitting documents is not enough. The petition should clearly explain how the evidence satisfies the applicable legal standards.
For EB-1C cases, evidence concerning the qualifying corporate relationship, qualifying foreign employment, managerial or executive capacity, and U.S. employment must be carefully documented.
For PERM-based I-140 petitions, the filing should establish the employer’s and beneficiary’s required elements, including the beneficiary’s satisfaction of the PERM’s education and experience requirements and other required evidence.
OUR NEW RULE FOR CLIENTS: COMPLETE FIRST — FILE SECOND
Effective immediately, we strongly recommend that every immigration case follow this principle:
COMPLETE THE EVIDENCE → VERIFY ELIGIBILITY → CROSS-CHECK THE FORMS → ATTORNEY REVIEW → FILE
Clients should promptly provide all documents requested by our office.
If our team sends you a missing-document list, please treat it as urgent.
Do not assume:
“USCIS can ask for it later.”
That approach can now result in a denial.
EMPLOYERS AND HR DEPARTMENTS: PLEASE HELP US AVOID PREVENTABLE DENIALS
Corporate clients should make sure HR personnel, managers, employees, end clients and other responsible parties respond promptly to requests for documentation.
Please do not wait until the filing deadline to provide:
- Employment verification;
- Job duties;
- Worksite information;
- End-client letters;
- Contracts or purchase orders;
- Organizational charts;
- Corporate documents;
- Payroll records;
- Experience letters; or
- Other evidence requested by our office.
If a document contains incorrect information, do not submit it simply to complete the file. Notify our office so that the discrepancy can be reviewed before filing.
DEADLINES ARE NOW EVEN MORE IMPORTANT
This policy can have especially serious consequences when a case must be filed before:
- An I-94 expiration;
- H-1B or other nonimmigrant status expiration;
- A 60-day grace period expires;
- An employment authorization deadline;
- A priority-date or adjustment-related deadline;
- A response or statutory filing deadline; or
- Another immigration deadline.
A denial after the deadline has passed may create consequences that cannot necessarily be corrected simply by refiling.
FINAL WARNING TO ALL CLIENTS
USCIS IS PUTTING THE RESPONSIBILITY ON THE APPLICANT AND PETITIONER TO ESTABLISH ELIGIBILITY AT THE TIME OF FILING.
Therefore:
- Do not send documents at the last minute.
- Do not knowingly file an incomplete case.
- Do not assume USCIS will issue an RFE.
- Do not assume USCIS will issue a NOID.
- Do not assume there will be a second opportunity to fix the case.
OUR OFFICE’S MESSAGE IS SIMPLE:
FILE IT RIGHT THE FIRST TIME.
Every case should be treated as though USCIS will make its decision based on the initial filing package without giving another opportunity to provide missing required evidence.
If our office requests documents or information for your immigration case, please provide them completely, accurately, and promptly so that we have sufficient time to review the evidence and prepare a complete filing.
PERM: USING EXPERIENCE GAINED WITH THE SAME EMPLOYER
Experience gained with the same employer sponsoring the PERM case generally cannot be used to satisfy the minimum experience requirements of the PERM position unless an applicable exception is met.
Under DOL regulations, same-employer experience may potentially be used when the experience was gained in a position that is not substantially comparable to the PERM position. A position is considered “substantially comparable” if it requires performance of the same job duties more than 50% of the time.
Accordingly, before relying on experience gained with the sponsoring employer, we should carefully compare:
- The employee’s prior job title and duties;
- The proposed PERM job duties;
- Percentage of time spent performing overlapping duties;
- Skills and responsibilities of each position;
- Whether the earlier position was genuinely different from the PERM position; and
- Whether the employer can document and explain the differences if audited.
Important: Merely changing the job title, adding a few duties, moving the employee to a different project, or promoting the employee does not automatically make the positions different.
If the PERM position requires experience that the employee obtained only while working for the sponsoring employer in a substantially comparable position, the case can face serious problems.
Our Rule
Before filing the Prevailing Wage Determination or PERM application, identify exactly where and when the beneficiary obtained every year of experience being required.
If any required experience was obtained from the sponsoring employer, flag the case for attorney review before proceeding.
The PERM requirements should never be structured around experience gained with the sponsoring employer without first analyzing the same-employer experience rules under 20 C.F.R. § 656.17(i)(3).
CERTAIN H-1B-DEPENDENT EMPLOYERS WILL FACE AN ADDITIONAL $4,000 FEE ON H-1B EXTENSIONS STARTING SEPTEMBER 9, 2026
Employers that rely heavily on H-1B and L-1 workers should prepare for a significant increase in the cost of certain extension filings beginning September 9, 2026.
The Department of Homeland Security (DHS) has issued a final rule expanding application of the 9-11 Response and Biometric Entry-Exit Fee to covered H-1B and L-1 extension-of-status petitions, including extensions involving the same employer.
The final rule was published in the Federal Register on August 10, 2026, and becomes effective September 9, 2026.
THE BIG CHANGE: $4,000 FEE CAN NOW APPLY TO H-1B EXTENSIONS
For covered employers, the additional fee is:
- H-1B: $4,000 additional fee
- L-1: $4,500 additional fee
The critical change is that this surcharge will no longer be limited in the same way to initial H-1B/L-1 filings and certain change-of-employer cases.
Beginning September 9, covered employers may also have to pay the surcharge when filing an extension of status for an existing H-1B or L-1 employee — even where the employee remains with the same employer.
WHO IS SUBJECT TO THE $4,000 H-1B FEE?
This fee does not apply to every H-1B employer.
The statutory surcharge generally applies to an H-1B petitioner that:
- 1. Employs 50 or more employees in the United States; AND
- 2. More than 50% of those U.S. employees are in H-1B or L-1 nonimmigrant status.
These employers are sometimes informally described as “50/50 employers” or highly H-1B/L-1-dependent employers.
USCIS’s existing guidance confirms the $4,000 additional fee for qualifying H-1B petitioners and the $4,500 fee for qualifying L-1 petitioners.
EXAMPLE
Assume an IT consulting company has:
100 employees in the United States
and
65 of those employees are in H-1B or L-1 status.
The company meets both thresholds:
50 or more U.S. employees — YES
More than 50% in H-1B/L-1 status — YES
Beginning September 9, 2026, if that employer files a qualifying H-1B extension for an existing employee, the company may now have to include the additional $4,000 fee, even though there is no change of employer.
WHY THIS IS A MAJOR CHANGE FOR IT CONSULTING AND STAFFING COMPANIES
The financial impact can be substantial for employers filing large numbers of H-1B extensions.
For example:
- 10 covered H-1B extensions = $40,000 additional fees
- 25 covered H-1B extensions = $100,000 additional fees
- 50 covered H-1B extensions = $200,000 additional fees
These amounts are in addition to the other applicable USCIS filing fees, and premium processing, if requested.
For companies with significant H-1B populations, immigration budgeting for 2026 and 2027 should therefore be reviewed immediately.
WHY DID DHS CHANGE THE RULE?
The fee is known as the 9-11 Response and Biometric Entry-Exit Fee.
DHS states that the new rule corrects its prior interpretation of the statutory language so that covered employers must submit the fee for all qualifying extension-of-status petitions, regardless of whether the related Fraud Prevention and Detection Fee applies.
That specifically brings within the rule extension petitions that do not involve a change of employer.
SEPTEMBER 9, 2026 IS THE CRITICAL DATE
Employers that may fall within the 50/50 threshold should immediately identify H-1B and L-1 extensions that are approaching filing.
Where legally and operationally appropriate, employers should discuss with immigration counsel whether cases that are already eligible and fully documented can be filed before the September 9, 2026 effective date.
Cases should not be prematurely or incompletely filed merely to avoid the additional fee.
This is particularly important given USCIS’s recently reinforced evidence standards: an incomplete filing can carry consequences beyond a filing-fee issue.
EMPLOYERS SHOULD CONDUCT A 50/50 AUDIT NOW
Before September 9, employers should determine:
- How many employees they employ in the United States;
- How many are currently in H-1B status;
- How many are currently in L-1 status;
- Whether the combined H-1B/L-1 population exceeds 50% of the U.S. workforce;
- Which H-1B extensions are expected during the next 6–12 months;
- Which L-1 extensions are expected;
- Which petitions can properly be filed before September 9; and
- How much additional immigration budget will be required after the rule becomes effective.
Employers near the 50% threshold should not guess. The employee count and immigration-status calculation should be reviewed carefully before determining whether the surcharge applies.
IMPORTANT: THIS IS AN EMPLOYER FILING COST.
Companies should also carefully review the rules governing responsibility for immigration filing fees rather than automatically transferring this additional cost to the H-1B employee.
The new surcharge should be incorporated into the employer’s immigration budget and case-opening procedures for affected petitions.
OUR RECOMMENDATION TO CORPORATE CLIENTS
Effective immediately, every corporate client with 50 or more U.S. employees and a substantial H-1B/L-1 workforce should review its employee population and upcoming extension calendar.
For affected companies, our office recommends creating two lists:
PRIORITY LIST — BEFORE SEPTEMBER 9
H-1B and L-1 extensions that are already eligible for filing and can be completed with all required evidence before the effective date.
POST-SEPTEMBER 9 LIST
Extensions that cannot appropriately be filed beforehand and therefore need to be budgeted and prepared under the new fee requirements.
BOTTOM LINE
Starting September 9, 2026, certain employers with 50 or more U.S. employees and more than 50% of their U.S. workforce in H-1B or L-1 status may have to pay an additional $4,000 even for an H-1B extension with the same employer.
For L-1 petitions, the corresponding additional fee is $4,500.
This could substantially increase immigration costs for IT consulting, staffing, technology, and other companies with large H-1B/L-1 populations.
Employers should review their workforce numbers and upcoming H-1B/L-1 extensions now rather than waiting until September.
USCIS ANNOUNCES NEW I-539 AND I-765 FORMS — OLDER EDITIONS WILL BE REJECTED STARTING SEPTEMBER 15, 2026
U.S. Citizenship and Immigration Services (USCIS) announced today that it will publish new editions of Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization, on September 15, 2026.
Both revised forms will carry an edition date of 09/15/26.
Critical Filing Warning: No Grace Period for Older Forms
This is particularly important for applicants, employers, students, dependents, and immigration practitioners preparing filings around the September 15 effective date.
Beginning September 15, 2026, USCIS will reject prior editions of Forms I-539 and I-765.
Therefore, cases being mailed or otherwise submitted around the transition date must be carefully reviewed to ensure that the correct edition of the form is being filed and accepted by USCIS.
A rejection can have serious consequences when an applicant is approaching an expiration date, filing deadline, or other status-related deadline.
Why Is USCIS Changing the Forms?
USCIS states that the revisions are being made to align the forms with the recently published final rule titled:
“Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media.”
The regulatory changes significantly affect the manner in which certain F, J, and I nonimmigrants are admitted to and maintain their status in the United States.
The revised I-539 and I-765 forms are intended to implement these new requirements.
Who Should Pay Particular Attention?
The change may affect numerous immigration filings involving:
- F-1 students and their dependents
- J-1 exchange visitors and their dependents
- Representatives of foreign information media in I status
- Applicants requesting extensions or changes of nonimmigrant status
- F-1 OPT and STEM OPT applicants filing Form I-765
- Other applicants who are required to use Form I-539 or Form I-765
Important September 15 Filing Protocol
Law firms, employers, universities, students, and foreign nationals should treat September 15, 2026 as a hard form-edition transition date.
For cases being prepared close to September 15:
- Do not assume that a previously prepared I-539 or I-765 can still be filed.
- Check the edition date immediately before filing.
- If filing on or after September 15, use the new 09/15/26 edition.
- Recheck all supporting documentation and eligibility requirements before submission.
- Avoid last-minute filings whenever possible. A rejected application can be particularly problematic where the applicant is approaching the expiration of an authorized period of stay or an employment-authorization deadline.
This Change Is Especially Important in Today’s USCIS Environment
The announcement should also be viewed together with USCIS’s increased emphasis on complete and properly documented filings at the time of submission.
Employers and foreign nationals should not rely on USCIS providing an opportunity to correct an incomplete filing later. The safest approach is to verify the form edition, filing fee, signatures, filing location, eligibility requirements, and required initial evidence immediately before submission.
Our Recommendation
Anyone with an I-539 or I-765 filing planned for September 2026 should review the filing timeline now.
Cases that can properly be filed before the transition should be prepared without unnecessary delay. Cases filed on or after September 15 must be converted to and carefully reviewed using the new 09/15/26 editions.
Our office is also updating its internal filing procedures so that no outdated I-539 or I-765 is inadvertently submitted after the USCIS transition date.
MAJOR F-1 STUDENT VISA CHANGES
NO MORE “D/S” — FIXED I-94 EXPIRATION DATES, NEW USCIS EXTENSION REQUIREMENTS, SHORTER DEPARTURE PERIOD AND NEW RESTRICTIONS ON SCHOOL TRANSFERS
Effective September 15, 2026
International students, universities and employers should prepare for one of the most significant changes to the F-1 student visa system in decades.
Beginning September 15, 2026, the Department of Homeland Security’s final rule changes how F-1 students—and also J exchange visitors and I foreign-media representatives—are admitted to and maintain status in the United States. The final rule was published July 17, 2026.
#1 — F-1 “D/S” IS BEING REPLACED WITH A FIXED PERIOD OF ADMISSION
Historically, most F-1 students were admitted for “D/S” — Duration of Status rather than receiving a specific expiration date on their Form I-94.
That system changes under the new rule.
F-1 students will instead be admitted for a fixed period tied to their program or authorized activity, generally not exceeding four years, rather than simply receiving D/S.
This makes the I-94 expiration date critically important.
Students should no longer assume that maintaining a valid I-20 by itself automatically gives them permission to remain indefinitely while pursuing their studies.
#2 — NEED MORE TIME? A NEW I-20 ALONE MAY NOT BE ENOUGH
This is perhaps the most important practical change.
If an F-1 student cannot complete the program within the authorized period of admission, the student may need to obtain the appropriate DSO recommendation/new I-20 and file an Extension of Stay application with USCIS.
The final rule requires an F-1 extension applicant to submit the designated USCIS application with the properly endorsed I-20, evidence of sufficient funds, applicable fees and any required biometrics.
In other words:
SCHOOL/DSO ACTION DOES NOT BY ITSELF REPLACE USCIS EXTENSION-OF-STAY REQUIREMENTS.
Students must start watching three documents together:
I-20 + I-94 + USCIS approval/extension requirements.
#3 — THE POST-COMPLETION DEPARTURE PERIOD IS REDUCED TO 30 DAYS
The new system generally provides F-1 students with a 30-day period following completion of studies or authorized practical training for departure or otherwise taking appropriate steps to maintain lawful status.
This is a major change from the familiar 60-day F-1 grace-period framework.
If a student ends studies or training earlier than the authorized period, the final rule similarly provides that the student generally must depart or otherwise seek to maintain lawful status within 30 days.
Students should therefore stop planning around an automatic 60-day post-completion window once the new rules apply.
#4 — SCHOOL TRANSFERS BECOME MORE RESTRICTED
F-1 students will also face additional eligibility requirements for transferring schools or changing educational objectives.
Under the final rule, among other requirements, a transferring student generally must be maintaining status and must satisfy specified academic/status conditions. The rule includes restrictions concerning the first academic year, academic probation or suspension, graduate-level study, and patterns showing repeated inability or unwillingness to complete a course of study.
The student must also generally begin classes at the transfer school within five months of transferring out or the applicable program-completion date, whichever comes first.
IMPORTANT CLARIFICATION ABOUT “USCIS APPROVAL” FOR TRANSFERS
It would be too broad to say that every F-1 school transfer requires advance USCIS approval.
The transfer itself continues through the SEVIS transfer process between the transfer-out and transfer-in schools. However, if the new program cannot be completed within the student’s existing authorized period of stay, the student must apply to USCIS for an Extension of Stay.
If USCIS denies that required extension, the final rule provides that the student is out of status and the SEVIS record must be terminated.
That distinction is extremely important.
#5 — OPT AND STEM OPT WILL ALSO INTERACT WITH THE NEW EXTENSION SYSTEM
The changes are not limited to students attending classes.
For post-completion OPT, the final rule provides that, unless covered by the transition provision, an F-1 student must apply for employment authorization and either obtain the necessary extension of stay through USCIS or obtain a new period of admission through CBP after travel abroad.
The student cannot engage in post-completion OPT unless employment authorization is granted.
Students pursuing STEM OPT also need to pay close attention to their authorized period of admission and the new extension-of-stay framework.
#6 — PENDING EXTENSION DOES PROVIDE IMPORTANT PROTECTIONS, BUT THERE ARE LIMITS
A student who timely files the required Extension of Stay before the authorized period expires can generally remain in a period of authorized stay while USCIS decides the application.
Certain existing F-1 employment authorization—including qualifying on-campus employment and CPT—may continue during a timely filed extension for up to 240 days, subject to the detailed requirements of the rule.
However, an extension filed during the new 30-day post-completion period does not provide the same employment protection; the student generally cannot begin or continue practical training or other employment merely because an extension was filed during that period.
#7 — AN EXTENSION DENIAL CAN HAVE IMMEDIATE CONSEQUENCES
The stakes are substantially higher under a fixed-I-94 system.
If USCIS denies an F-1 Extension of Stay after the student’s authorized admission period has already expired, the final rule provides that the student and F-2 dependents must immediately depart the United States.
Students therefore should not treat an F-1 extension as a routine paperwork matter.
Eligibility, maintenance of status, finances, I-20 documentation and filing deadlines should all be carefully reviewed before filing.
#8 — CURRENT F-1 STUDENTS WITH D/S HAVE SPECIAL TRANSITION RULES
Students already in the United States in valid F-1 status on September 15, 2026 should not assume that their status simply ends that day.
DHS created a transition rule.
An F or J nonimmigrant properly maintaining status on September 15 who was previously admitted for D/S is generally authorized to remain until the applicable program/EAD-based date under the transition rule, subject to an outside four-year limitation measured from September 15, 2026 and the applicable departure period.
However, students needing additional time—including for a new program, post-completion OPT or STEM OPT—may need to use the new USCIS Extension of Stay procedure.
WHAT EVERY F-1 STUDENT SHOULD DO AFTER SEPTEMBER 15
Students should no longer look only at their I-20.
CHECK YOUR I-94. CHECK YOUR I-20. CHECK YOUR EAD. CHECK YOUR USCIS DEADLINES.
Before changing schools, changing educational levels, extending a program, applying for OPT/STEM OPT, traveling internationally or approaching an I-94 expiration date, students should determine whether a USCIS Extension of Stay application is required.
Universities and DSOs should likewise be extremely careful about advising students that a SEVIS update or newly issued I-20, standing alone, resolves the student’s immigration-status requirements.
ONE MISSED DEADLINE CAN BECOME A STATUS PROBLEM
The practical effect of eliminating D/S is that F-1 students will have a much clearer—and potentially unforgiving—immigration expiration date.
A student who previously could work with the DSO to extend a program may now have an additional USCIS filing obligation.
Students should therefore begin the extension process well before the I-94 expiration date rather than waiting until the final weeks.
BOTTOM LINE
SEPTEMBER 15, 2026 CHANGES THE F-1 LANDSCAPE
No more traditional D/S framework.
Fixed periods of admission and I-94 expiration dates become critical.
USCIS Extension of Stay filings may be required to remain beyond the authorized period.
The traditional 60-day post-completion period is replaced by a 30-day period under the new framework.
School transfers and changes in educational objectives face additional restrictions.
A new I-20 may not, by itself, extend the student’s authorized stay.
OPT and STEM OPT students must also pay close attention to the new extension requirements.
TRUMP TAKES A SECOND CRACK AT BIRTHRIGHT CITIZENSHIP — NEW EXECUTIVE ORDERS COULD SEND THE ISSUE BACK TO THE SUPREME COURT
President Donald Trump has launched a second, narrower effort to restrict birthright citizenship, signing two executive orders on August 6, 2026 targeting “birth tourism” and federal recognition of U.S. citizenship for children born in certain circumstances.
The move comes just weeks after the U.S. Supreme Court dealt the administration a major defeat on the same constitutional issue.
On June 30, 2026, the Supreme Court ruled in Trump v. Barbara that children born in the United States to parents who are unlawfully or temporarily present are generally “subject to the jurisdiction” of the United States and therefore citizens at birth under the Citizenship Clause of the Fourteenth Amendment.
Now the administration is trying again.
SECOND CRACK AT BIRTHRIGHT CITIZENSHIP
Rather than simply repeating the earlier executive order, the administration’s new approach is more targeted.
The August 6 actions focus on particular circumstances and on birth tourism — situations in which foreign nationals allegedly travel to the United States for the purpose of giving birth and obtaining U.S. citizenship for the child. They also seek to restrict federal recognition of citizenship in additional specified categories.
One of the orders also directs the Departments of State and Homeland Security toward additional measures against the commercial birth-tourism industry.
WHY THIS IS DIFFERENT FROM THE FIRST ATTEMPT
The President’s earlier order attempted a much broader restriction affecting children born in the United States when their parents were undocumented or only temporarily present.
The Supreme Court rejected that interpretation in June.
The new orders appear designed to test whether narrower categories can fall outside the constitutional guarantee, rather than attempting the same broad restriction that the Court has already rejected.
COULD THIS GO BACK TO THE SUPREME COURT?
Yes.
The new executive orders are already generating litigation, and because they raise fundamental questions concerning the meaning and scope of the Fourteenth Amendment’s Citizenship Clause, another trip through the federal courts — and potentially back to the Supreme Court — is entirely possible.
The central constitutional language remains:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”
The next legal battle is likely to focus heavily on what “subject to the jurisdiction” means for the narrower categories identified by the new executive orders.
IMPORTANT: BIRTHRIGHT CITIZENSHIP HAS NOT GENERALLY ENDED
Foreign nationals should not interpret the President’s August 6 executive orders as meaning that birthright citizenship has suddenly disappeared for everyone.
The Supreme Court’s June 30, 2026 decision remains critically important, and the Court held that children born in the United States to parents unlawfully or temporarily present are citizens at birth under the Fourteenth Amendment.
The new executive orders represent a new and narrower legal challenge, not a general Supreme Court reversal of birthright citizenship.
BIRTH TOURISM WILL FACE INCREASED SCRUTINY
Regardless of how the constitutional litigation ultimately ends, foreign nationals should expect substantially greater scrutiny of suspected birth tourism.
This can have immigration consequences separate from the constitutional citizenship question.
A person seeking a B-1/B-2 visa or admission to the United States should always answer questions about the purpose of travel truthfully. Misrepresentation or fraud in obtaining a visa or admission can create serious immigration consequences.
Therefore, the legal question of whether a child born in the United States is a citizen should not be confused with the separate question of whether a parent properly obtained a visa or admission to the United States.
WHAT HAPPENS NEXT?
The next chapter will likely unfold in the federal courts.
Challengers will argue that the President cannot use executive action to narrow a constitutional citizenship guarantee that the Supreme Court has just reaffirmed.
The administration, meanwhile, is expected to argue that these new orders concern narrower categories that were not resolved — or should be treated differently — under the Court’s June decision.
That sets up another potentially historic constitutional confrontation.
BOTTOM LINE
President Trump has taken a second crack at restricting birthright citizenship.
The first broad effort failed before the Supreme Court.
The new August 6 executive orders take a narrower approach, particularly targeting birth tourism and certain specified categories.
Expect immediate litigation. Expect conflicting arguments over the Fourteenth Amendment. And do not be surprised if birthright citizenship reaches the U.S. Supreme Court again.
Until the courts resolve these new challenges, individuals should be extremely careful about assuming that a new executive order by itself has definitively changed the constitutional citizenship rules for every child born in the United States.
Sincerely,
Keshab Raj Seadie, Esq. Law Offices of Keshab Raj Seadie, P.C.
Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
