Trump 2025: Disaster for H1B Visa Holders, Their Spouse and Employer

When Donald Trump takes office on January 20, 2025, U.S. immigration policies will change and it will not be limited to the undocumented only, but also H-1B visa holders and their families.

From his previous administration, Trump’s policies will make it harder to get H1B or extend H1B, target H4 EAD, impose administrative burdens and make life of foreign workers in U.S. more complicated. During the first Trump administration, policies and regulations introduced significant changes to immigration reforms, including the H-1B visa program, which had major implications for employers and foreign workers.

These changes will impact hiring, compliance and foreign workers. Below are the changes and practical steps employees and employers can take to navigate this.

H1B Denial Trends

As Albert Einstein said:

“If you want to know the future, look at the past.”

The data tells us what to expect in the next Trump administration.

H1B denial data shows a stark contrast between Trump and Biden administration:

Trump Era (2017-2020)

• Denials reached 24%.
• Policies discouraged employers from sponsoring H-1B workers. The Trump administration’s efforts to reshape immigration policy, particularly through the Department of Homeland Security, significantly impacted the H-1B visa system.

Post-Trump Era (2021-2022)

• Denials dropped to 2%-4% under Biden, due to relaxed policies.

Project 2025

A conservative policy guidebook, “Project 2025,” outlines H1B reforms for a second Trump term:

• Wage-Based Allocations:
• Replace the lottery system with merit-based system prioritizing higher wages and advanced skills.
• Stricter Oversight:
• Increase monitoring to ensure U.S. workers are not disadvantaged by foreign hires.
• Shift to High-Skilled Labor:
• Make the program elite, only bring in the “best and brightest.”

Actions

• Increased Scrutiny:
• Bring back policies that require more documentation, increase costs and processing time for employers.
• Reduced Visa Approvals:
• Limit the number of H1B visas issued each year by tightening the eligibility criteria.
• High-Wage Jobs:
• Block entry-level positions, disadvantage recent graduates and small businesses.

What are H1B and H4 Visas?

H1B Visa Overview

• Purpose: Allows U.S. employers to hire foreign professionals in specialty occupations like technology, engineering, healthcare and education.
• Dependents: Spouses and children of H1B holders enter U.S. on H4 visas.
• Role in Economy:
• H1B holders are key to innovation and business growth.
• Many H1B workers are from India and China, countries with huge backlogs for employment based green cards.
• Tech companies are still pushing for more H1B visas, citing talent shortages in areas like semiconductor production (backed by $280 billion CHIPS and Science Act).

H4 Visa Overview

• Eligibility: Dependents (spouses and children) of H1B visa holders.Work Authorization: H4 spouses can work if:
• H1B visa holder has an approved I-140 petition for permanent residency or
• H1B status has been extended beyond 6 years due to green card backlogs.

WHAT IS H1B Visa: A Double Edged Sword?

H1B visa is a vital tool for U.S. companies to hire foreign talent in STEM, technology and healthcare. But it has also faced criticism for wage suppression and abuse.

1. H1B Benefits

Critical Workforce Support:

• 60% of H1B visas are issued to companies in professional, scientific and technical fields.

Program allows companies to fill skill gaps in high demand industries like IT and engineering.

Boost for Small Businesses:

• Research by Federal Reserve Bank of Richmond found that winning the H1B lottery increases a small business’s chance of survival over the next 5 years.

2. Criticisms and Controversies

Low Wage Categories

• Companies are exploiting the program to hire foreign workers at lower wages, displacing U.S. workers.
• Trump’s Truth Social’s H1B Petition in 2023 lists a $65,000 salary is an example of this.

Worker Displacement:

• Program has faced scrutiny over high profile cases like Disney’s 2014 layoffs where U.S. workers were replaced by H1B contractors and forced to train their replacements.
• Critics point to recent tech layoffs and growing number of domestic computer science graduates as reason to limit foreign hires.

Economic Impact of H1B Visa Program

Benefits

• H1B workers contribute to economic growth through innovation, entrepreneurship and increased consumer spending.
• Program has been linked to higher patent filings, research advancements and startup success.

Challenges

• Dependence on the program has led to concerns about domestic workforce development.
• Wage imbalances and perceived exploitation continues to be a criticism from labor advocates.

Trump Administration’s H1B Policy (2017-2020)

During his first term, Trump introduced policies that had a big impact on H1B program under the “Buy American, Hire American”executive order. This policy aimed to favor U.S. workers and increased restrictions on hiring foreign professionals. The changes to the deference policy also significantly impacted foreign national employees, causing confusion and challenges during the transition between administrations.

A Record of Disruption

Trump administration’s H1B policy was a departure from previous policies, favoring enforcement and control over efficiency. While it reduced fraud and backlog in some cases, it created huge problems for businesses that rely on global talent. The repeated H1B petition processing suspensions and new requirements showed the administration’s intent to limit immigration even for highly skilled workers that are critical to U.S. economy.

Actions:

Increased Scrutiny

• Tighter application reviews.
• USCIS to approve visas only for “most skilled” or “highest paid” workers.

Higher Wage Requirements:

• Employers had to pay higher salaries to prove job complexity and specialization.

More Denials:

• H1B denial rates went from 6% in FY 2015 to 24% in FY 2018.
• Denial rates are back to historic lows under Biden but could go up again.

Site Visits:

• Increased investigations to ensure compliance, more administrative burden on employers.

No Deference:

• USCIS stopped extending prior H1B approvals, employers had to resubmit extensive documentation for renewals.

Periodic Suspension of Premium Processing.

• 2017, 2018 and 2019, USCIS suspended premium processing for all or some H1B applications.

Blocked Entry.

During COVID-19 pandemic, Trump used 212(f) authority to block entry of certain H1B and L1 visa holders. This blocked thousands of high skilled professionalsand their families from entering the U.S. and causing disruptions to businesses.

Trump’s H1B Hypocrisy: Business vs. Politics

Former President Donald Trump has been a vocal critic of H1B visa program, has called it unfair to American workers and promised to reform it. But records show that Trump affiliated businesses, including his social media platform Truth Social and his son-in-law Jared Kushner’s investment firm have used the very program he complained about. This raises questions about his political rhetoric vs business practices.

Truth Social’s H1B Use

In June 2022, Trump Media & Technology Group (TMTG), the company behind Truth Social, filed an H1B application to hire a foreign worker. The application, later approved, was surprising given Trump’s history of opposition to the program.

Application Details

• Position: Not disclosed, based in Atlanta.
• Salary: $65,000 per year, the lowest wage level under H1B program.
• Result:
• Approved by U.S. Department of Labor.
• TMTG later said they did not hire the worker and terminated the process in November 2022.

TMTG’s Statement

• A company statement blamed “prior management”:
• Quote: “The company has never hired — and has no plans to hire — an H1B visa program worker.”
• But Devin Nunes, TMTG’s CEO and a Trump loyalist, was already the CEO when the application was filed.

H1B Use by Trump Related Entities

1. Trump’s Business

• Before he was president, Trump’s businesses, including hotels, resorts and modeling agencies were frequent users of H1B program:
• Hired foreign models and hospitality staff under the visa program.
• Filed dozens of H1B petitions between 2009 and 2016.
• H1B applications from Trump businesses stopped after 2017, during his presidency.

2. Jared Kushner’s Investment Firm

• Kushner’s firm used H1B program. Unlike Truth Social’s $65,000 application, the firm offered $200,000 per year to hire a foreign associate, the highest wage level for the program.
• The application was approved, in line with Trump’s promise of high wage, high skilled foreign workers.

Trump’s H1B Position

Trump has been a vocal critic of H1B program as bad for American workers. During a 2016 Republican primary debate, he called it “very bad” and “unfair” and said it allows companies to pay foreign workers less than American workers.

Quotes

2016 Debate:

• Admitted his own businesses used the program but wanted to get rid of it.
• Quote:

“I frankly use [H1B], and I shouldn’t be allowed to use it. We shouldn’t have it.”

Policy as President:

• Issued the “Buy American and Hire American” Executive Order in 2017, to reform and prioritize high wage, high skilled foreign workers.
• Said the program was used by tech companies to replace American workers with cheaper foreign labor.

H1B 2025: TRUMP II WILL FOLLOW UP ON TRUMP I

Despite Trump affiliates’ use of H1B program, a second Trump term will likely revisit the policies to restrict and re-shape the H1B program.

Here’s what was attempted and what will return:

1. Higher Wages

What Happened:

• In October 2020, DOL issued a rule to increase wages for H1B, H1B1, E-3 and PERM workers.
• Employers were caught off guard and it was implemented immediately, causing chaos.
• Employers had to pay software developers $208,000 in smaller cities, pricing out many businesses from hiring H1B workers.
• The rule was blocked in court but showed Trump’s intent to price foreign workers out of the market.

What to Expect:

• A second Trump administration will likely bring similar wage increase measures
• Wage-Based Distribution System
• A system that favors higher paying jobs, top tier foreign professionals and minimizes perceived competition with American workers.
• Modeled after Project 2025, a conservative policy proposal, this system would turn H1B into an “elite” program, focusing on high wage, high skilled workers.
• Higher wage thresholds will make hiring foreign workers more expensive, especially for entry level positions.
• A revived wage rule would make it impossible for companies to sponsor H1B workers. Many skilled professionals would lose their jobs and have to leave the US.
• H1B visas would be awarded to highest paid applicants, not through a random lottery.

Who Benefits:

• Large corporations with higher wages.

Who Suffers:

• Startups and small businesses can’t compete with high wages.
• Entry level professionals and recent graduates.

2. Definition of Specialty Occupation

The October 2020 rule tried to restrict eligibility by requiring a degree in a very specific field for a job to be considered a specialty occupation.

Additional documentation was required for third party placements and approvals for such cases were limited to one year. It is crucial to separate enforcement against illegal immigration from the processes of legal immigration, highlighting the importance of programs like the EB-5 visa as tools for economic growth.

What to Expect:

• Tighter eligibility criteria for industries like IT and consulting that use third party placements.

3. Wage-Based H1B Cap Selection

What Happened:

• Proposed regulation prioritized H1B lottery selection by wage level, higher paying roles first.
• Entry level and newly graduated international students were hit the hardest.
• The rule was blocked in court but it’s still a direction of policy.

What to Expect:

• Wage-based prioritization will severely limit opportunities for early career professionals and entry level hires.

4. Deference Policy

What Happened:

• In 2017, USCIS stopped giving deference to prior approvals during extensions and RFEs increased and denials skyrocketed.
• It created uncertainty and disrupted business operations.
• Reinstated under Biden administration, the deference policy is a memo not a regulation.

What to Expect:

• A second Trump administration will likely rescind the policy and create more uncertainty.

5. Stricter Employer-Employee Relationship

What Happened:

• The October 2020 rule required employers to show direct control over H1B workers, making it harder for placements at client sites.
• The rule limited H1B visas for workers at client sites to one year (previously three years).

What to Expect:

• A second Trump administration will likely bring back the previous restrictions on H1B workers at third party sites.
• For employers, it will add administrative and legal burden, especially for IT and tech companies that use project based or contract labor. It will increase costs for frequent renewals and make it less viable for employers to place workers at client sites.
• For employees, it will create uncertainty and instability for H1B visa holders at client sites, they will have to renew their status every year. It will reduce opportunities for workers in industries where short term project based assignments are common, like IT consulting.

H4 Work Authorization at Risk

Trump’s Previous Attempts

• In 2018, Trump administration tried to revoke the H4 EAD rule:
• USCIS announced they would rescind the regulation, citing “protecting U.S. workers”.
• It was stalled due to time constraints but showed the administration’s intent to limit H4 work.

2025 Likely Changes

Repeal of H4 EAD Rule:

• A second Trump administration will rescind the rule and many spouses will not be able to work.
• Families will face financial stress and many professionals will re think staying in the U.S.

Processing Delays:

• Administrative tactics like requiring new biometrics can extend H4 renewals to over a year without any policy change.

Who will be affected?

• Professionals in Backlogged Green Card Categories:
• Indian and Chinese nationals who wait decades for green cards.
• High Skilled Spouses:
• According to National Foundation for American Policy, 90% of H4 spouses have bachelor’s degree and 50% have graduate degree, they are valuable contributors to the US workforce.

H4 Spouse Administrative Burdens

Trump’s First Term: A Sample

• Biometric Requirements:
• USCIS introduced a rule requiring H4 spouses to submit fingerprints and other biometrics for EAD renewals and created delays.
• Processing Delays:
• Lawsuits showed that simple processes that took 12 minutes under normal circumstances were stretched to over a year.
• Intentional Hurdles:
• USCIS policies seemed designed to discourage H4 spouses from getting work authorization and many lost their jobs.

Legal Challenges and Reforms

• Edakunni v. Mayorkas
• In a lawsuit, over 40 companies including Amazon, Google and Apple supported bundling H4 EAD applications with H1B extensions to speed up processing.
• The resulting settlement reversed some of these delays but a new administration can bring back similar hurdles.

Other Potential H1B Policies in Trump II

No one has a crystal ball to see the future but here are some potential changes to the H1B visa program in the next Trump administration:

Changes

More Requests for Evidence (RFEs) and Denials

• Higher scrutiny will increase costs and delays especially for tech companies that rely heavily on H1B talent.

More Site Visits:

• More investigations to ensure compliance will add to the administrative burden for employers.

Suspension of Premium Processing

As seen in 2017, 2018 and 2019, Trump can suspend premium processing for H1B visas and we will see longer wait times and hiring challenges.

Entry Blocked

A new Trump administration can expand these restrictions to block:

1. New H1B workers from entering the U.S
2. Families of H1B workers from joining them
3. H1B workers from entering the U.S after traveling abroad

Buy American, Hire American (BAHA) Policies:

Visa approvals will be evaluated against U.S workers.

Longer Processing Times:

Operational changes within immigration agencies will lead to more procedures, longer processing times and higher denial rates. H, L and O visa petitions and others will see more scrutiny and RFEs.

More Biometric Requirements:

Dependents applying for visa extensions will face new requirements.

Reinstated Travel Bans and Extreme Vetting:

Some countries will see longer visa issuance times.

Extension Denials

• Under Trump, H1B extension denial rates went from 3% to 12% and many workers had to go back to their home countries.

Mandatory interviews for employment based green cards.

Higher Costs for Employers.

Expect higher filing fees and compliance costs, more financial burden on small and mid-sized companies.

Stricter Cap Enforcement:

Trump administration can enforce stricter limits on the annual cap and reduce the number of visas approved.

International Students: Changing Landscape

International students will face more regulations, employment and mobility will be impacted.

Proposals

OPT restrictions:

• 24 month STEM OPT extension may be eliminated.
• Third party site work for OPT students may be prohibited.

“Unlawful Presence” policies tightened:

• Falling out of status will have harsher consequences, complicating school transfers.

Green Card proposals for graduates:

• Mentioned during the campaign, but will require legislative action, so uncertain.

Impact on International Students:

• Students who transition to H1B within the U.S will avoid some restrictions but will face challenges if they go out and try to come back.

Worksite Enforcement: Back in Focus

Employers be prepared for more audits, raids and compliance checks.

Expected Actions

I-9 and E-Verify Audits:

• More workplace raids along with paperwork audits.
• E-Verify compliance will be more scrutinized.

FDNS Site Inspections:

• Unannounced visits to employer and third-party sites will increase, targeting immigration fraud.

Wage and Hour Audits:

• Departments overseeing H1B, H2A and H2B programs will enforce wage and work condition standards more aggressively.

DOJ Investigations:

• Discriminatory hiring practices and misuse of recruitment for PERM applications.

Impact on Businesses and Workers

For Businesses

Startups and Small Firms will be at a Disadvantage:

Smaller companies which offer lower starting salaries will struggle to compete for foreign talent under a wage based allocation system.

Hiring/Planning Delays:

Longer adjudication times will force companies to look elsewhere, offshore or hire remote workers. Employers will face uncertainty in hiring timelines and will have to adjust their recruitment and workforce planning.

Higher Costs:

Higher wages, higher legal fees and compliance costs will go up, smaller employers will be discouraged to sponsor H1B visas.

Reduced Access to Talent:

Stricter eligibility rules will limit hiring flexibility. Risk of losing skilled workers to other countries with more welcoming immigration policies like Canada and Australia, especially in STEM and healthcare fields. Reduced ability to attract and retain global talent will hurt U.S. innovation and competitiveness in the global market.

Business Disruption:

Delays and more RFEs will disrupt operations.

Entry Level Talent Shortage:

Wage based prioritization will disadvantage recent graduates.

For Workers

Job Security at Risk:

• Higher denial rates and administrative hurdles will make it harder for H1B workers to maintain status.

Limited Career Growth:

• Wage based prioritization will favor senior professionals, sideline younger workers and new graduates.

More Denials

More documentation and stricter definitions will increase denial rates for H1B applicants.

Wage Inflation

• Higher minimum salaries will make it less viable for many U.S. companies, especially small and mid-sized businesses to hire foreign born professionals.

Delayed Processing

• More scrutiny will lead to longer wait times for approvals and disrupt project timelines and job opportunities.

Reduced Opportunities

• Restricting OPT programs and international student pathways will discourage foreign born students to pursue education and employment in the U.S.

Family Disruption:

• Making H1B process more unpredictable will stress H1B workers and their families. Revoking H4 EADs will put financial strain on dual income families and add more stress to H1B workers. Psychological and financial stress due to prolonged uncertainty.

Impact on U.S. Economy

The new administration will argue that restrictive H1B measures are needed to protect American jobs, but critics warn of the long term consequences:

• Talent Shortage: Technology and healthcare industries will struggle to find skilled workers.
• Global Competitiveness: Restrictive immigration policies will deter top global talent, benefitting countries like Canada and UK.
• Economic Contributions: International students and workers contribute billions to U.S. economy through tuition, taxes and innovation.

What Can Employees Do to Mitigate H1B restrictions?

Do Now:

• File for extensions, green cards or H4 EAD as soon as possible to avoid restrictions.

Stay Updated:

• Follow immigration policy changes and consult with attorneys.

Explore Options:

• Consider switching to O-1 or explore permanent residency options (like EB-5 investment green card which allows for concurrent I-485 filing as soon as possible). During Trump’s first term, stricter H1B policies led some foreign workers to explore the EB-5 program.

4. Legal Expertise:

Work with attorneys to navigate these changes.

What can Employers do to mitigate H1B restrictions?

Here are some tips for employers to attract and retain foreign born talent and prepare for aggressive DHS enforcement:

• File Now: File applications, extensions and green card petitions well in advance of deadlines to avoid delays. Fast track eligible H1B petitions before new rules take effect.
• Review Job Descriptions: Make sure they meet stricter definitions.
• Compensation: Get ready for higher wage requirements.
• Explore Options: Look into other visa options for employees who no longer qualify under new H1B rules. O-1, L-1 or green cards.
• Document the job is specialized: Employers may need to provide more evidence of the role’s requirements. Enhance Documentation: Make sure all filings are detailed and error free and robust.
• Plan for OPT restrictions: Identify ways to transition OPT employees to long term visa options.
• Internal Audit: Review I-9 and E-Verify records for compliance. Make sure job descriptions and compensation packages match new requirements. Prepare documentation to prove specialty occupation.
• Vendor Compliance: Ensure electronic I-9 systems meet DHS standards.
• Train Staff: Educate HR and IT on compliance.
• Document Everything: Keep files ready for audit for visa sponsored employees.
• Budget: Plan for increased costs for filing fees, wage mandates and legal compliance.
• Contingency Planning: Consider offshoring or hiring remote workers to mitigate talent shortage risk. Identify roles that can be filled by domestic talent or through alternative recruitment strategies.
• Support affected employees: Provide resources and legal assistance to H1B workers and their families.
• Advocate: Join industry groups pushing for balanced and fair immigration policies.
• Stay Updated: Follow policies to minimize disruption to foreign born employees. Follow policy changes closely, especially from the current administration. Anticipate and plan for changes and adjust hiring accordingly.
• Legal Expertise: Work with attorneys to navigate these changes. Consult with immigration attorneys to stay updated on policy changes. Conduct training for HR teams on compliance and best practices.

Who is Stephen Miller, the H1B Architect?

Stephen Miller, one of Donald Trump’s most loyal advisors, has been reappointed as Deputy Chief of Staff for Policy after Trump’s 2024 re-election. Known for his anti-immigration stance, Miller’s influence on US immigration policies will be bad news for Indian tech professionals and other foreign workers in the US. Here’s a deep dive into Miller’s policies, his impact on H1B visa program and what’s to come.

Who is Stephen Miller?

Bio:

• Born August 23, 1985 in Santa Monica, California. Raised in a conservative Jewish family.
• Education at Duke University solidified his reputation as a conservative voice, he was an active debater and writer for campus publications.

Political Career:

• Early roles included press secretary for Reps Michele Bachmann and John Shadegg.
• He rose to fame in 2016 as a senior policy advisor for Trump’s presidential campaign and later as a senior advisor and speechwriter during Trump’s first term.

Notable work:

• Architect of key immigration policies including travel ban on Muslim-majority countries and family separation policy.
• After administration he founded America First Legal, a group advocating for conservative legal principles.

Miller back at the White House

• In his new role he will oversee policy with a big focus on immigration and national security.
• Along with Tom Homan, Trump’s pick for “Border Czar”, Miller will implement tough immigration policies including H1B visa and deportation policies.

Miller on H1B Visas

Stephen Miller has been critical of H1B visa program, saying it displaces American workers and suppresses wages. His influence has led to several H1B targeted policies:

1. Stricter Eligibility Criteria

• Narrowing Specialty Occupations:
• During Trump’s first term, policies changed the definition of “specialty occupations” making it harder for professionals to get H1B visas.
• Jobs requiring general degrees like computer programming faced more scrutiny.
• Increased Denials:
• Denial rates for H1B visas went up under Miller’s influence creating chaos for employers and employees.

2. Higher Wages

• Cruz-Sessions Bill Influence:
• Miller supported policies requiring H1B workers to meet a high wage threshold, like $110,000 a year, making many professionals unaffordable for the US labor market.
• This would disproportionately impact entry level and mid level roles which are often filled by Indian professionals.

3. Restrictions on OPT and International Students

• Targeting OPT Programs:
• Miller backed policies to restrict Optional Practical Training (OPT), which allows international students to work in the US after graduation.
• Proposals included requiring students to leave the US for 10 years before reapplying for work visas.

Stephen Miller: Personal Life and Controversies

Family:

• Married to Katie Waldman, former press secretary to Vice President Mike Pence, with three kids.

Controversies:

• Miller has been under public fire, including leaked emails in 2019 showing him promoting white nationalist content.
• Despite all this he is still a big name in conservative circles.

How does H1B Program Work?

The H1B visa program has been a part of US immigration policy for decades, allowing employers to hire foreign professionals with specialized skills in fields like science, technology, engineering and mathematics (STEM). Despite its importance in filling workforce gaps and driving economic growth, the program faces challenges of limited supply, administrative burden and changing policies. Here’s a detailed explanation of the program, its process and its impact on US economy.

What is H1B Visa?

H1B is a nonimmigrant visa that allows US employers to hire foreign professionals for specialty occupations.

Key Facts

Eligibility:

• Jobs must be specialty occupations, typically requiring at least a bachelor’s degree or equivalent experience.
• Industries include information technology, engineering, mathematics, healthcare and academia.

Duration:

• Initial visa validity: 3 years.
• Extensions: Can be extended up to 6 years, and additional years for green card applicants facing backlogs.
• Dependents: H1B visa holders’ spouses and children can enter the US on H4 visas, and some spouses can get employment authorization (H4 EAD).

H1B Petition Process

Step 1: Labor Condition Application (LCA)

Before filing H1B petition, employers must file an LCA with the Department of Labor (DOL) and make the following attestations:

• The hiring will not displace US workers.
• The employer is offering the prevailing wage or higher for the area and position.
• Existing employees are notified of the intent to hire an H1B worker.

Step 2: USCIS Registration and Petition

1. Electronic Registration:

• Introduced in 2020 to simplify the process and reduce paperwork.
• Employers register foreign nationals for H1B lottery before filing a full petition.
• Registration fee will increase to $215 per entry in FY 2026.

2. Lottery:

• If registrations exceed the cap, a random lottery will determine who can move forward.
• Cap Breakdown:
• 65,000 general visas.
• 20,000 advanced degree visas for US graduates (master’s or higher).

3. Filing the Petition:

• Employers with selected registrations submit detailed petitions, including proof of the job’s specialty and foreign national’s qualifications.

Recent Changes to the Registration System

Beneficiary-Centric Approach (Introduced in FY 2025)

• Replaces the old employer-centric system.
• Prevents abuse by not allowing duplicate registrations for the same individual.
• Impact:
• Reduced attempts to game the system.
• Fairer distribution of visas across unique beneficiaries.

Challenges and Statistics

High Demand vs. Low Supply

• The cap is always oversubscribed, demand far exceeds supply.
• FY 2025:
• 470,342 registrations, down from 758,994 in FY 2024 (beneficiary-centric system impact).
• Only 114,017 were selected in the lottery.

Denial Rates Over Time

• Under Trump:
• New H1B petition denial rates were 24% in FY 2018, 14% in FY 2017 and 6% in FY 2015.
• Post-Trump:
• Denial rates dropped to 2% in FY 2022, the lowest ever, due to policy changes and legal settlements.

COVID-19 Impact

• H1B admissions were 601,594 in FY 2019, 148,603 in FY 2021 (pandemic travel restrictions).
• By FY 2023, admissions were 755,020 (travel restrictions eased).

H1B Economic Contributions

Filling Labor Gaps

• Skill shortages: H1B workers fill the talent gap in STEM fields.
• Unemployment Trends:
• Occupations with high H1B hiring (IT and engineering) have low unemployment rates even during recessions.

Boosting US Innovation

• H1B professionals contribute to technological advancements:
• More patent filings and research.
• More venture capital funding for startups with H1B workers.
• Growth, IPOs and acquisitions.

Economic Growth

Wages:

• 2021 H1B median wage: $108,000.
• US national median wage: $45,760.

Regional Impact:

• Major cities like New York City and Silicon Valley benefit the most from H1B talent.

Consumer Spending:

• H1B workers drive demand for housing, goods and services and boost local economies.

H1B Myths Debunked

Myth 1: H1B workers take jobs from US citizens

• Fact: H1B workers fill jobs that would otherwise be unfilled by US workers.
• Study: H1B hiring correlates with lower unemployment in the industry.

Myth 2: H1B workers are underpaid

• Fact: Employers must pay the prevailing wage or higher.
• 78% of H1B workers earned above the DOL prevailing wage for their job in 2019.

Myth 3: H1B workers hurt the economy

• Fact: Immigrant workers drive growth through spending, innovation and job creation.

Long term challenges for the program

Green Card Backlogs

• Impact:
• Indians and Chinese face multi-decade waits for employment based green cards.
• Many H1B workers have to extend their visas multiple times creating uncertainty for themselves and their employers.

Policy Changes

• Wage mandates or stricter selection criteria may deter employers from participating in the program.
• Higher costs and administrative burden may force companies to move jobs offshore.

FAQs: H1B Policy Changes in 2025

General

1. What is the purpose of H1B visa program and why is it controversial?
The H1B visa program allows U.S. employers to hire foreign workers with specialized skills for specialty occupations where U.S. workers are not available. Controversy arises from the perception that the program is used to hire foreign workers at a lower cost than U.S. workers or outsource jobs. Critics say some employers abuse the system while proponents argue it drives innovation and fills skills gaps.

2. Why are Trump’s H1B policies a concern?
During Trump’s previous presidency, immigration policy reforms focused on American workers. For H1B visas, this meant:

• Tighter eligibility requirements.
• More compliance checks and audits.
• Higher paid and advanced degree applicants.
• Limiting perceived abuse by outsourcing firms. Given these precedents, there is a lot of fear that similar or more stringent measures will come back.

3. Will the current H1B program change drastically?
Uncertain but possible. Any major change will require new legislation or executive orders. Executive actions can change administrative rules or enforcement priorities while legislative changes can overhaul the program (e.g. wage levels, eligibility criteria or annual caps).

H1B Visa Holders and Applicants

4. Will current H1B holders lose their visa status if policies change?
No, policy changes do not retroactively revoke existing visas. However, H1B holders may face challenges with renewals, transfers or green card sponsorships if the process becomes more stringent or costly.

5. What if my H1B renewal is denied?
If denied, you will need to leave the U.S. immediately unless you:

• File a motion to reopen or appeal the decision.
• Switch to another visa type (e.g. F1 for studies or O1 for individuals with extraordinary abilities).
• Re-employ with a new sponsor, subject to approval.

6. Will the H1B cap be reduced?
While the annual cap for h 1b visas (currently 85,000 visas, 20,000 for advanced degree holders) is determined by legislation, the administration can influence the program by:

• Tweaking the lottery process to favor specific criteria (e.g. higher wages or U.S. degrees).
• Delaying visa issuance to reduce overall numbers.

7. Will H4 EAD be eliminated?
The Trump administration previously tried to rescind H4 EAD which allows certain H1B spouses to work. While the attempt was stalled, this issue can come back. Without H4 EAD, H4 visa holders will not be able to work legally in the U.S. and will face financial and emotional challenges.

8. Will the “dual intent” feature of H1B visa be changed?
The H1B visa’s dual intent allows holders to apply for green card without jeopardizing their non-immigrant status. Stricter policies can increase scrutiny of green card applications or PERM labor certification process making it harder for H1B holders to transition to permanent residency.

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Employer Specific

9. How will stricter H1B policies affect my ability to hire talent?
If policies favor higher wages or advanced degrees, it will:

• Limit entry-level talent, especially in STEM fields.
• Increase competition for higher tier talent.
• Add administrative costs due to more documentation requirements.

10. What can employers do to prepare?
Employers should:

• Audit current H1B filings to ensure compliance.
• Develop contingency plans for key foreign employees (e.g. explore other visa types like L1 or O1).
• Stay updated on policy developments and engage immigration counsel for planning.

11. Will outsourcing companies be targeted?
Yes, outsourcing companies have been a target for stricter H1B policies due to abuse allegations. More site visits, audits and documentation requirements will affect these companies disproportionately.

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Overall Impact on the Workforce

12. How will U.S. workers benefit from stricter H1B policies?
Proponents say that stricter policies will:

• Reduce foreign competition in certain industries.
• Encourage employers to invest in domestic workers.
• Increase U.S. wages in specialized fields.

13. Will stricter policies harm the U.S. economy?
Many think that limiting H1B program will:

• Slow down innovation in tech and healthcare sectors.
• Make U.S. less competitive by driving talent to other countries.
• Create labor shortages in areas like STEM fields.

14. How about universities and students?
Foreign students, especially in STEM fields, use H1B visas to stay in the U.S. after graduation. Stricter policies will deter international students from enrolling in U.S. institutions, impacting revenue and global competitiveness.

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Unusual Questions and Situations

15. Will premium processing for H1B applications be eliminated?
Premium processing which allows for expedited review for an additional fee can be suspended or limited like it has been during peak periods. This will delay processing times and create uncertainty for employers and applicants.

16. Will the administration add more fees to H1B applications?
Yes, higher fees for employers sponsoring H1B workers are possible. This will impact small businesses or startups that rely on foreign talent but have tighter budgets.

17. Will changes target specific industries?
Policies can include industry specific restrictions or priorities, favoring one industry over the other (e.g. healthcare over tech or vice versa).

18. How likely are increased visa denials or RFEs?
During Trump’s previous administration, RFEs and denial rates for H1B visas went up significantly. This trend can continue, employers and applicants will need to submit more documentation.

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How to Minimize Risks

19. How can I make my H1B application or renewal stronger?

• Document job duties, required skills and the need for the role thoroughly.
• Ensure wage levels meet or exceed Department of Labor standards.
• Work with an immigration attorney to avoid RFEs.

20. Should I look into other visa options?
Depending on your qualifications you can:

• O1 visa: For individuals with extraordinary ability.
• L1 visa: For intra-company transferees.
• F1 visa: For continued studies or OPT.

21. Can advocacy groups impact policy?
Yes, organizations representing immigrants and employers can lobby Congress, file lawsuits and build public awareness. Joining such groups or supporting their initiatives will amplify the voice of stakeholders.

22. How can employers and employees work together to address the uncertainty?

• Employers should communicate with affected employees, provide legal assistance and explore alternative pathways for work authorization.
• Employees should gather documentation and consult with legal counsel to assess options.

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Conclusion: Get Ready for a Tougher Landscape

Trump back in the White House means big trouble for H-1B workers and their families – H-4 work authorization could be gone, visa requirements could get stricter and processing times could get longer. Employers and workers need to act now by staying informed, filing early and seeking legal advice.

By preparing now you can minimize the disruption and continue to succeed in the changing legal immigration landscape.

Helpful Resources

• USCIS Processing Times
• H-1B Visa Updates
• Visa Bulletin

Stay informed, stay tuned and prepared to mitigate any disruptions to your immigration journey.

 

Can Trump Take Away My Citizenship?

Trump’s Immigration Crackdown: Denaturalization is Back

President-elect Donald Trump has doubled down on one of his most outrageous campaign promises: deporting 15 million people, including some who are already naturalized U.S. citizens. While it may be virtually impossible to implement Trump’s grandiose ambitions due to the logistical and financial challenges of deporting millions, his administration will still devastate countless lives, including those who thought their citizenship was forever.

Among the tools at their disposal is the obscure judicial process of denaturalization—revoking citizenship granted to immigrants—making naturalized Americans deportable.

Going Beyond Terrorism and War Crimes

Becoming a naturalized U.S. citizen is supposed to mean you get all the rights and protections of citizenship. But the Department of Justice (DOJ) can take that away if they can prove fraud or misrepresentation during the naturalization process. Historically, it was used sparingly and only in extreme cases, like targeting people with ties to terrorism, war crimes, or human rights violators who may have concealed such backgrounds.

Under the first Trump administration, this rarely used power is getting new attention, and what does it mean to be “truly American” and naturalized citizens are getting nervous.

This is a big expansion of immigration enforcement and has huge implications for immigrant communities and the entire legal system.

Most naturalized citizens will not be affected by Trump’s renewed efforts to denaturalize.

Who’s at Risk?

But those who naturalized by providing false material information (like not disclosing criminal history or obtaining citizenship under false identity) will be at greater risk.

Likely Targets

• Those who didn’t disclose past deportation orders or criminal convictions.
• Those who naturalized under false identities.
• Naturalized citizens who committed crimes before they were citizens (and didn’t disclose).

What is Denaturalization?

Denaturalization is the legal process of taking away an individual’s U.S. citizenship. Established in 1906, this process allows the government to revoke citizenship if it was obtained by fraud, misrepresentation, or material omission that would have precluded naturalization.

This process allows authorities to strip citizenship from individuals who:

1. Illegally Obtained Citizenship: Failing to meet the requirements.
2. Committed Fraud or Misrepresentation: Hiding or lying about material facts in the naturalization process.

Denaturalization requires the government to prove an individual obtained citizenship by fraud or misrepresentation. Specifically:

1. Willful Concealment: The applicant intentionally misrepresented or withheld information.
2. Material Fact: The concealed fact would have made them ineligible for naturalization.

Until the first Trump administration, naturalization was rare and historically targeted serious offenders like war crimes or terrorism.

But someone like Elon Musk, whom many have speculated about his immigration journey, including allegations of working illegally on a student visa, could theoretically be at risk of denaturalization if he illegally worked in the U.S. while on an F-1 student visa, if he intentionally lied about that work, and if that unlawful employment would have made him ineligible for his green card and therefore citizenship.

Fear is part of the strategy

While denaturalization cases are few, the denaturalization efforts may be part of a broader strategy to scare immigrant communities and deter naturalization.

What’s next for immigration under Trump?

Experts say a second Trump administration will double down on policies to reduce both legal and illegal immigration.

Expected tactics

1. Supercharged Denaturalization: Will expand despite the small number of cases compared to overall immigrant population.
2. Legislative Changes: Will try to limit family-based immigration and visa programs.
3. More Enforcement: More focus on investigating old applications for fraud.

How Denaturalization Works

Investigation:

Federal authorities review visa and citizenship applications for inconsistencies, inaccuracies, or omissions.

“Material” misstatements—those that if known would have prevented the applicant from becoming a citizen—are grounds for denaturalization.

Filing a Case:

• Denaturalization cases are filed in federal court where the government must prove its claims. Unlike criminal cases, defendants do not have the right to appointed counsel.

Outcome:

• If successful, citizenship is revoked and the individual reverts to their prior immigration status. In most cases, this makes them deportable.

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Denaturalization Facts

• Denaturalization does not result in deportation. Instead the individual reverts to their prior immigration status, such as a green card holder. But green card holders can be deported for certain crimes.
• The DOJ must prove its case in federal court as denaturalization requires judicial approval.
• As mentioned above, this process has historically been reserved for the most serious cases, such as terrorism, war crimes or significant fraud.

Why Naturalized Citizens?

Under Trump’s plan, naturalized citizens are not exempt from the administration’s broader deportation plans. Trump administration officials, particularly Stephen Miller, have been saying they will use denaturalization to expand enforcement beyond undocumented immigrants, idealizing past immigration policies from the 1920s to emphasize a cultural element in defining true membership in America.

The Strategy

• Expand Enforcement: Trump’s team will investigate tens of thousands of naturalized citizens for revocation.
• Broaden Criteria: No more limitations on cases. Even small mistakes on applications will be grounds for denaturalization.
• Revive “Operation Second Look”: This from Trump’s first term will supercharge denaturalization by reviewing old cases for any discrepancies, regardless of intent or harm.

The Philosophy

Stephen Miller, the architect of Trump’s immigration policies, has called for a “supercharged” denaturalization process. He says every inconsistency, no matter how small or unintentional, should be scrutinized to see if citizenship was granted improperly. His phrase “America is for Americans only” is a deeply exclusionary approach to immigration.

Denaturalization Consequences

The effects of denaturalization go far beyond the individual who loses citizenship. The ripples impact families, communities and the very fabric of U.S. immigration policy.

1. Individual Consequences

• Loss of Citizenship: Revocation makes individuals deportable and strips them of their rights and privileges as U.S. citizens.
• Legal Vulnerability: Without citizenship individuals can’t vote, hold certain jobs or sponsor family members for immigration.
• Financial Burden: Defending against denaturalization requires expensive legal representation which many can’t afford. Without guaranteed counsel defendants are at a huge disadvantage.

2. Family Consequences

• Naturalized Children: Minors who became citizens through their parents’ applications will lose their status if their parents are denaturalized.
• American Born Children: Trump has promised to end birthright citizenship so children born to immigrant parents will be stateless if their parents are denaturalized.

3. Psychological Harm

Even if you successfully defend your citizenship the process causes lasting harm:

• Stress and Fear: The possibility of losing your citizenship erodes your sense of belonging and security.
• Second Class Citizenship: Millions of naturalized Americans will start to feel like second class citizens, unsure of their status. The fear of denaturalization will erode their sense of permanence and equality.

4. Wider Social Consequences

As journalist Masha Gessen has written, a mass denaturalization campaign will create a system where immigrants live under constant suspicion, undermining trust in the U.S. immigration process and the American dream.

Why Should All Americans Care?

Denaturalization raises the question: what does it mean to be American and is citizenship really permanent?

1. Citizenship as a Firewall

Citizenship has always been seen as a barrier to deportation and a sign of full membership in American society. This effort blows that firewall apart.

2. Immigration Policy

The Trump administration’s rhetoric ties Americanness to culture or race, just like the restrictive immigration policies of the early 20th century. Critics say this undermines the idea of America as a nation of immigrants.

3. Second Class Citizens

Masha Gessen, a journalist and critic, says the denaturalization task force is telling naturalized citizens they are “second class citizens” living under a cloud of conditional acceptance.

History

Denaturalization has a long and uneven history in the United States. Understanding its past helps us understand the current threat to naturalized citizens.

1906 to Mid 20th Century: Setting the Precedent

• It was first codified in 1906 to revoke citizenship obtained by fraud.
• Denaturalization peaked during the World Wars and early Cold War.
• It was often used for political reasons, targeting individuals accused of disloyalty or radical political activity. For example:
• Emma Goldman, an anarchist and pacifist, was denaturalized during World War I for opposing the war.
• Naturalized citizens who joined Communist or Nazi organizations were denaturalized in the 1930s and 1940s.

Late 20th Century: Targeted Use

• Denaturalization was rare and focused on:
• War criminals
• Terrorists
• Human rights abusers
• Cases required evidence of deliberate fraud that would have prevented naturalization.

Post 1967 Restrictions

• The Supreme Court’s decision in Afroyim v. Rusk (1967) held that citizenship is a right, not a privilege and can’t be revoked for post naturalization behavior. Denaturalization could only be pursued if citizenship was fraudulently obtained in the first place.

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21st Century: New Focus

• Under the Obama administration denaturalization was rare but used for severe cases, such as individuals concealing violent criminal histories.
• Example: Rasmea Odeh who failed to disclose a bombing conviction in Israel lost her citizenship.

Trump’s First Term: Operation Second Look

• Trump’s Department of Justice expanded denaturalization efforts big time.
• Key Moves:
• Hired dozens of new agents to review naturalization applications.
• Increased cases from a few dozen a year to thousands.
• Targeted individuals whose infractions caused little or no harm.

Biden Administration’s Response

On February 2, 2021 President Joe Biden signed an executive order to review and potentially reverse denaturalization. The order directed the attorney general and secretaries of state and homeland security to:

• Review Policies and Practices: Not use denaturalization and passport revocation excessively or unfairly.
• Promote Fairness: Re-examine denaturalization cases from the Trump era to see if they met the principles of justice and due process.

Advocacy and Reform

• Immigrant rights orgs called it a “good first step” but said more is needed to restore trust in the system.
• Advocates are calling for:
• Full reversal of denaturalization policies from the Trump administration.
• More transparency and oversight to prevent denaturalization abuse in the future.

Trump’s Denaturalization Task Force

During Trump’s first term denaturalization efforts expanded big time with resources shifted to review old naturalization cases for fraud. This included high profile initiatives like Operation Janus and Operation Second Look to find cases where individuals may have hidden information during the naturalization process.

In June 2018 USCIS Director L. Francis Cissna announced the creation of a denaturalization task force to investigate naturalized citizens. This was an expansion of Operation Janus, a long running program to target individuals who obtained citizenship fraudulently.

What is Operation Janus?

• Began in the 2000s Operation Janus reviewed hundreds of thousands of naturalization files to find individuals with past deportation orders or criminal records under other names.
• In 2017 the DOJ filed its first lawsuits under this program against individuals who used fake identities to get citizenship.
• The denaturalization task force is an expansion of these efforts, targeting thousands of cases found by Operation Janus.

Trump’s first administration diverted resources from new immigration applications to old cases:

Trump Era

• 2018: Then-USCIS Director Francis Cissna said they would refer 1,600 naturalization fraud cases to the DOJ.
• 2019: ICE shifted over $200 million to denaturalization efforts.
• Operation Janus uncovered old fingerprint files and found 858 cases of individuals who got citizenship despite having prior deportation orders or criminal records.
• 2020: The DOJ launched a denaturalization initiative and filed cases in federal court.
• Statistical Context:
• Between 2008 and 2020 the DOJ filed 228 denaturalization cases, 94 of them during the first three years of Trump’s presidency.
• Denaturalization became harder to prove after the Supreme Court’s 2017 decision in Maslenjak v. United States which raised the standard of proof for fraud in naturalization applications.

Case Study: Norma Borgono

One example of denaturalization under the Trump administration is Norma Borgono, a 63 year old Peruvian grandmother living in Miami. She became a U.S. citizen in 2007 but was later implicated in a mail fraud scheme through her work. Although she cooperated with authorities and did house arrest, the DOJ said she failed to disclose the criminal activity during the naturalization process. That omission, according to the government, was fraud and made her citizenship invalid.

This case shows how far the administration is willing to go, focusing on past crimes or omissions even if they weren’t intentional or material to the naturalization process.

Trump’s Expanded Approach

Previous administrations focused on national security and human rights cases. Trump’s administration expanded denaturalization to include crimes that occurred before naturalization but weren’t disclosed during the application process. This has a chilling effect on naturalized citizens.

Trump

• Broader Targets: Cases include individuals with lesser offenses such as omissions of minor past crimes or activities unrelated to their citizenship eligibility.
• More Resources: The task force hired more attorneys to review naturalization files, to prosecute thousands of cases.
• Expanded Definition of Fraud: Unintentional errors or omissions are being looked at for materiality.

Chilling Effect on Naturalization

Immigrant advocacy groups, including the ACLU, said the increased scrutiny would deter eligible green card holders from applying for citizenship, fearing retroactive investigations.

The Human Cost of Denaturalization and Immigration Policies

While the number of denaturalization cases is small, the human impact is big:

• Fear Among Immigrants: Increased investigations are causing anxiety among naturalized citizens, even those with minor errors in their applications.
• Family Separation: Restrictive policies are hitting immigrant families hard, delaying reunification and causing emotional trauma.

Long Term

• Over time these policies could reduce immigration by tens of millions, changing the demographic and economic fabric of the U.S.

Trump Immigration Policies and Their Legacy

The Denaturalization Section was one of several controversial initiatives under the Trump administration’s broader anti-immigration agenda which included:

• Travel Bans: Restricting entry from predominantly Muslim countries.
• Family Separation: Enforcing policies that separated children from their parents at the border.
• Asylum Restrictions: Implementing policies that severely limited the ability to claim asylum in the U.S.

Denaturalization fit into this pattern by targeting naturalized citizens, a group previously considered secure in their immigration status.

Threat to Birthright Citizenship

In addition to denaturalization, Trump has promised to end birthright citizenship, a constitutional right under the 14th Amendment. This would undermine the legal foundation of citizenship for children born in the U.S., further destabilizing immigrant families.

Consequences

• Millions of U.S. born children could have their citizenship challenged if Trump’s policies succeed.
• This would create stateless individuals, contrary to international law and human rights.

Immigration Policies in a Second Trump Term

Denaturalization is just one piece of the Trump administration’s overall plan to reduce immigration. Other likely actions:

• Blocking Green Card Categories: Eliminating visa programs like the diversity lottery which brings in 50,000 immigrants a year.
• Slowing Application Approvals: Increased scrutiny and bureaucratic hurdles for legal immigration applications.
• Family-Based Immigration: Measures that could leave many Americans unable to sponsor family members for green cards.

Social and Political Consequences

1. Disappointed Sponsors: Many Americans trying to sponsor family members will be delayed or denied.

Labor Market

A smaller labor force could worsen existing shortages in healthcare, agriculture and construction

Economic and Demographic Impact

Denaturalization itself will not have a big demographic impact, but broader legal immigration restrictions will harm the economy by reducing labor force growth and slowing GDP.

Economic Impact

1. Labor Force Growth:

• Immigration has driven U.S. labor force growth, a major driver of economic growth.
• The combination of Trump’s policies and the pandemic between 2016 and 2022 already reduced GDP growth by 1.3 percentage points, according to a study by the National Foundation for American Policy (NFAP).

2. Employers and Consumers

• Employers will have trouble filling key positions due to labor shortages.
• Consumers will have reduced access to services provided by immigrant workers.

Quotes

• “Limiting both legal and undocumented immigration will slow overall economic growth and disrupt sectors that rely on immigrant labor.” – Robert Lynch, economics professor at Washington College

Tools to Stop Denaturalization

Defending Citizenship

Fighting denaturalization is hard. The system is stacked against you. The government has the upper hand.

No Right to Counsel

Unlike criminal cases, denaturalization cases do not provide legal representation. Many defendants, unaware of the legal process, can’t mount a proper defense and will lose their citizenship.

Burden of Proof

While the government must prove fraud, the complexity of immigration law leaves individuals vulnerable to accusations based on minor errors or omissions.

Costs

Legal fees to defend against denaturalization can be tens of thousands of dollars, out of reach for many.

Legal and Practical Implications

1. What is “Material Fraud”?

The Supreme Court in 2017 in Maslenjak v. United States ruled that only lies or omissions that would have prevented naturalization at the time can justify denaturalization. This limits the government’s ability to strip immigrants of citizenship for minor mistakes. The Supreme Court limited the government’s ability to revoke citizenship by requiring proof of material fraud for denaturalization. Courts can be a check on overreach if they follow this standard.

2. Advocacy

• Organizations must educate the public about denaturalization and provide resources to those affected.
• More free or low-cost legal services is key to a fair trial.

3. Community Support

• Immigrant communities and legal organizations can provide resources to those at risk and inform them of their rights.
• Public pressure on lawmakers can also move policy.

4. Legislation

• Congress can pass laws to limit denaturalization and protect naturalized citizens from overreach.

Denaturalization Deep Dive

Denaturalization, the process of revoking U.S. citizenship from naturalized citizens, has been rare. Between 1990 and 2017 an average of 11 cases were pursued annually. But under Trump, that number has skyrocketed with a big increase in government resources and the creation of new offices and initiatives. This guide explains the denaturalization process, the legal basis, recent developments and the implications for immigrants and the immigration system.

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What is Denaturalization?

Denaturalization is the legal process of revoking a naturalized U.S. citizen’s citizenship. This can happen if the government proves the individual was not eligible for naturalization at the time it was granted or obtained citizenship through fraud or misrepresentation.

Legal Standards

• Government must meet high burden of proof:
• Civil cases: Clear, convincing and unequivocal evidence.
• Criminal cases: Beyond a reasonable doubt.
• Denaturalization cases must go through federal court so there is judicial oversight.

Grounds for Denaturalization

Denaturalization is governed by specific sections of U.S. law that outline when citizenship can be revoked:

1. Illegal Procurement or Fraudulent Misrepresentation

• Statute: Immigration and Nationality Act (INA) § 340(a).
• Criteria:
• Citizenship was procured illegally or through concealment of a material fact, leading to the potential for citizenship annulled.
• Willful misrepresentation that affected the naturalization decision.
• Examples: Falsifying personal information, omitting past crimes or using false identities.

2. Naturalization Fraud Convictions

• Statute: 18 U.S.C. § 1425.
• Criteria:
• Convicted of procuring or attempting to procure naturalization contrary to the law.
• Examples: Submitting fake documents or bribing officials during the application process.

3. Wartime Military Service

• Statute: INA § 329(c).
• Criteria:
• Naturalization through wartime military service can be revoked if the individual is discharged under “other than honorable conditions” within five years.
• Example: Falsifying enlistment qualifications to get expedited citizenship.

4. Refusing to Testify Before Congress

• Statute: Proviso to INA § 340(a).
• Criteria:
• A Cold War-era provision allowing denaturalization for refusing to testify about alleged subversive activities before Congress.
• Example: Used historically against suspected communists.

Initiatives and Developments

1. Operation Janus

• Launched: 2010.
• Goal: Identify individuals who obtained citizenship or legal permanent residence under false identities or with prior deportation orders.
• Findings:
• A 2016 DHS OIG report found:
• 1,029 naturalized citizens with deportation orders under different identities.
• 315,000 missing fingerprint records for non-citizens with criminal convictions or final deportation orders.
• 148,000 old fingerprint cards not digitized or reviewed by ICE.

2. Operation Second Look

• Launched: 2016.
• Goal: Expanded naturalization case audits to find discrepancies or fraud.
• Results:
• Denaturalization referrals increased 600% between 2017 and 2020.

3. Denaturalization Section

• Created: February 2020.
• Location: Within the DOJ’s Office of Immigration Litigation.
• Mission:
• Prioritize and handle denaturalization cases.
• Investigate and litigate citizenship revocation.
• This is a big increase in denaturalization capacity.

Denaturalization Results

1. Current Numbers

• Despite all the focus and resources, the number of individuals denaturalized is still very small:
• USCIS was going to refer 1,600 cases to the DOJ for prosecution.
• Between 1990 and 2017, an average of 11 cases per year were pursued.

2. Systemic Issues

• Chilling Effect: The increased scrutiny may deter legal permanent residents from applying for citizenship, fearing retroactive investigations.
• Increased Delays: Diverting resources from application processing to investigations adds to an already overwhelmed immigration system.

3. Bigger Picture

• Advocates say these efforts create a climate of fear and mistrust in immigrant communities.
• Critics argue this is part of a broader effort to limit immigration and discourage naturalization applications.

The Denaturalization Process

1. Investigation

• USCIS or ICE finds fraud or misrepresentation in an individual’s naturalization process.
• Audits of old files (e.g. Janus and Second Look) often trigger investigations.

2. Referral

• Cases are referred to the DOJ Denaturalization Section for review and prosecution.

3. Filing

• DOJ files a civil or criminal case in federal court, stating the grounds for denaturalization.

4. Court Proceedings

• Individual can contest the government’s claims.
• The government must meet high burden of proof.

5. Result

• If denaturalization is granted, citizenship is revoked and the individual reverts to their prior immigration status (e.g. lawful permanent resident).
• If no other status applies, the individual may be deported.

Legal Protections and Obstacles to Denaturalization

Supreme Court Cases

• Maslenjak v. United States (2017): The Supreme Court held that small mistakes or irrelevant statements cannot be used to denaturalize unless they were material to the naturalization decision.

Evidence Standards

• Denaturalization requires clear and convincing evidence in civil cases or beyond a reasonable doubt in criminal cases. These high standards are a check against arbitrary or abuse of denaturalization power.

Denaturalization in Civil Cases: Grounds and Process

Denaturalization—the revocation of U.S. citizenship—can be pursued in civil cases if the government proves the individual was not eligible for naturalization at the time it was granted. This page explains the legal grounds for civil denaturalization, the process and the key factors that can lead to citizenship revocation.

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1. Grounds for Denaturalization in Civil Cases

A. Illegal Procurement or Concealment and Willful Misrepresentation

A naturalized citizen can be denaturalized if:

• Illegally Procured: The individual did not meet the legal requirements for naturalization.
• Obtained Through Concealment or Willful Misrepresentation: The individual knowingly made false statements or omitted material information to get naturalized.

These two often overlap as misrepresentation is often tied to illegally procured and invalid naturalization applications.

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2. Key Requirements for Naturalization and Problems

• Naturalization requires the applicant to be a lawful permanent resident (green card holder) at the time of application.
• Fraudulent LPR Status: If the underlying green card was obtained fraudulently (e.g. through a sham marriage or misrepresentation on a visa application), the citizenship derived from it can be revoked.
• Historical Examples: Cases under the Displaced Persons Act of 1948 involved individuals who concealed their participation in Nazi persecution. Even indirect involvement, such as being a concentration camp guard, could disqualify an individual from getting a visa and subsequently naturalization.

Example:
Joe immigrated as an unmarried child of a lawful permanent resident. But he was married before immigrating and didn’t disclose it. Since his marriage made him ineligible for his green card, Joe’s naturalization can be revoked.

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B. Continuous Residence

• Applicants must be present in the U.S. for five (or three) years before applying and until naturalization.
• Breaking Residency: Absences of one year or more break continuous residence. Absences of more than six months but less than a year may also break residency unless justified.
• False Claims: Making false statements about one’s residence or misrepresenting absences can lead to denaturalization.

Example:
An applicant lists their estranged spouse’s address as their own during the three-year marital period required for naturalization. If found out, this misrepresentation can be a ground for denaturalization.

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C. Physical Presence

• Applicants must be physically present in the U.S. for at least half of the five (or three) years before applying.
• Omissions: Failing to disclose trips abroad that exceed the allowed time can lead to denaturalization.

Example:
Lupe traveled to Mexico frequently but didn’t list absences that exceeded the allowed time. When these omissions were found out, her case was referred for denaturalization.

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D. Good Moral Character

• Applicants must show good moral character during the required period.
• Criminal History: Crimes committed before naturalization but not disclosed on the application can disqualify an individual from meeting this standard.
• Misconduct: Even minor misconduct, such as petty offenses or false testimony, can raise moral character issues.

Example:
An individual committed a crime before obtaining naturalization, but wasn’t arrested until after becoming a citizen. Their failure to disclose this crime during the application process can lead to denaturalization.

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E. Attachment to Constitutional Principles and Good Order

• Applicants must take an oath of allegiance to the Constitution and show they are “well disposed to the good order and happiness of the United States.”
• Cold War-Era Provision: INA § 340(c) assumes that joining certain organizations within five years of naturalization means lack of attachment to constitutional principles.

Example:
A naturalized citizen joins an organization hostile to the U.S. Constitution within five years of becoming a citizen. Unless there’s countervailing evidence, they can be denaturalized.

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3. The Denaturalization Process

1. Investigation

• U.S. Citizenship and Immigration Services (USCIS) or Immigration and Customs Enforcement (ICE) finds potential fraud or ineligibility cases.
• Audits of old files or tips from other agencies trigger investigations.

2. Referral

• Cases are sent to the Department of Justice (DOJ), specifically the Denaturalization Section, for prosecution.

3. Filing a Case

• DOJ files a civil complaint in federal court, listing the reasons for denaturalization.

4. Proceedings

• The government must show clear, convincing and unequivocal evidence in civil cases.
• The individual has the right to defend their case in court.

5. Outcome

• If the government wins, citizenship is revoked and the individual goes back to their prior immigration status (e.g. lawful permanent resident).
• If no other status applies, the individual can be removed (deported).

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4. Key Considerations and Safeguards

Legal Protections

• The government has a high burden of proof to avoid denaturalization being arbitrary or political.
• Supreme Court cases like Maslenjak v. United States (2017) have held that only material misrepresentations or omissions can justify denaturalization.

Impacts on Immigrant Communities

• Fear and Mistrust: The threat of denaturalization creates anxiety among immigrants, may discourage eligible individuals from applying for citizenship.
• Resource Allocation: Investigating past cases may take resources away from processing new applications, further backlogging an already backlogged system.

Denaturalization: Concealment, Misrepresentation, and Other Grounds

Denaturalization, the process of revoking U.S. citizenship, has many legal grounds and processes. This guide covers concealment, willful misrepresentation, military service, Cold War-era provisions, and the denaturalization process, including defenses and court cases.

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I. Concealment and Willful Misrepresentation

Grounds for Revocation

Naturalization can be revoked if:

• Concealment of a Material Fact
• Willful Misrepresentation

The Supreme Court in U.S. v. Kungys said:

• Concealment must be willful, and misrepresentation must be of material facts.
• A fact is “material” if it has a “natural tendency” to mislead immigration officials, even if the concealed information wouldn’t necessarily have prevented naturalization.

Four Requirements

To revoke citizenship for concealment or misrepresentation the government must:

1. Willfulness: The individual knowingly hid or falsified information.
2. Concealment or Misrepresentation: False information or omissions during the naturalization process.
3. Materiality: The concealed or false fact was relevant to the applicant’s eligibility.
4. Intent to Procure Naturalization: The concealment or misrepresentation was to get citizenship.

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II. Examples of Concealment and Misrepresentation

• Criminal History: Claiming not to have committed crimes or omitting arrests.
• False Testimony: Giving false answers during the naturalization interview.
• Address Fraud: Claiming to live at an address that is not the applicant’s actual home.
• Failure to Take the Oath: In rare cases, not completing all steps of the naturalization process, including taking the citizenship oath, has led to revocation.

Court Precedent: If a question during the naturalization process was ambiguous and the applicant’s answer was reasonable, it can’t be fraud or concealment.

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III. Wartime Military Service

Under INA § 329(a), non-citizens can naturalize through military service during wartime. But citizenship can be revoked if:

• The individual is discharged “other than honorably” before completing five years of military service.

Constitutional Questions

• Critics argue that revoking citizenship based on post-naturalization military conduct violates constitutional protections, as the Fourteenth Amendment protects citizenship unless voluntarily relinquished.

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IV. Cold War-Era Provisions (§ 340(a) Proviso)

Naturalization can be revoked if, within 10 years of naturalization, an individual:

• Refuses to testify before Congress on “subversive activities.”
• Is convicted of contempt of Congress as a result.

This provision assumes the individual concealed material facts at the time of naturalization or didn’t have attachment to the Constitution. Though a relic of the Cold War, this provision is still on the books.

Constitutional Concerns

• The proviso’s assumption that future behavior means past concealment raises constitutional issues, including equal protection and due process concerns.

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V. Denaturalization Process

Step-by-Step Guide

1. Complaint Filing:

• Government files a complaint in U.S. district court, with supporting affidavits showing good cause.
• Jurisdiction is based on the defendant’s current residence.

2. Investigation and Recommendation:

• USCIS investigates and recommends denaturalization.
• U.S. Attorney’s Office prosecutes the case.

3. Burden of Proof:

• Government must prove its case by clear, unequivocal and convincing evidence.
• Courts must construe facts in favor of the naturalized citizen whenever possible.

Denaturalization Guidelines

• DOJ guidelines advise against revocation for minor errors or procedural irregularities unless there was fraud.
• Long standing good conduct after naturalization can weigh against revocation.

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VI. Criminal Revocation of Citizenship

Statutory Basis

18 U.S.C. § 1425 requires courts to revoke citizenship when an individual is convicted of:

• Knowingly and unlawfully procuring naturalization.
• Producing false documents related to naturalization.

Burden of Proof

• In criminal cases, government must prove fraud beyond a reasonable doubt.
• Revocation is automatic upon conviction, no notice or hearing required.

Materiality Standard

• The false statement must have “played a role” in naturalization.
• Citizenship can’t be revoked for immaterial falsehoods unrelated to eligibility.

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VII. Defenses Against Denaturalization

A. Eligibility for Citizenship

• If the individual can prove they would have been eligible for citizenship, denaturalization can’t proceed.
• Example: In Maslenjak v. U.S., the Supreme Court held that eligibility for citizenship is a complete defense even if fraud occurred during the process.

B. Factual Challenges

• Defendants can rebut government allegations by presenting evidence that challenges the facts of the case:
• Example: In a pre-WWII case, a court held that an individual who lived abroad temporarily successfully proved they intended to remain a U.S. resident and thus defeated denaturalization.

C. Procedural Errors

• Cases have been dismissed where the government failed to authenticate evidence as required by federal rules.

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VIII. Broader Impact

Chilling Effect

Denaturalization could discourage eligible immigrants from applying for citizenship, fearing retroactive review of their applications.

Due Process

• Courts stress the importance of fairness and caution in denaturalization cases, given the value of U.S. citizenship.

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Materiality

What is Materiality

• Materiality looks at whether the concealed or misrepresented fact had a “natural tendency” to affect the decision of the immigration official.
• Supreme Court Precedent: In Kungys v. United States, the Court held that a misrepresentation or omission must meet this standard to warrant revocation of citizenship.

Principles

1. The information doesn’t have to have disqualified the applicant from naturalization; it just has to be relevant enough to have influenced the decision.
2. Materiality is only required for cases of concealment or misrepresentation, not for illegal procurement of citizenship.

II. Legal Standards for Proving Materiality

1. Causative Connection

The government must prove that the misrepresentation or concealment either:

• Directly disqualified the individual, or
• Would have triggered an investigation that would have uncovered disqualifying facts.

Example: In Maslenjak v. United States, the Supreme Court held that the misrepresentation must have caused the individual to acquire citizenship. The Court said:

• If the misrepresented fact was itself disqualifying, the link to naturalization is obvious.
• If not disqualifying, the government must show that discovery would have revealed other disqualifications.

2. Burden of Proof

• Clear, unequivocal and convincing evidence.
• Courts require a lot of evidence to take away citizenship, given the value of citizenship rights.

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III. Court Decisions on Materiality

Important Cases

1. Kungys v. United States

• Misrepresentations about date and place of birth were immaterial because they were irrelevant.

2. Maslenjak v. United States

• False statements about a spouse’s military service were evaluated for relevance to the eligibility criteria.

3. Chaunt v. United States

• Failure to disclose old arrests for minor offenses was immaterial because the arrests were not for moral turpitude or eligibility.

Rejected Defenses

• Courts have rejected arguments that certain arrests or misstatements were immaterial if they would have closed off lines of inquiry that would have revealed disqualifying information.

IV. Defenses to Materiality

1. Eligibility

• Example: In Maslenjak, the Court said showing eligibility at the time of naturalization can prevent revocation.

2. Ambiguous Questions

• If a naturalization question is ambiguous, courts may find the applicant’s answer was not intentionally misleading.
• Example: In Nowak and Maisenberg, the Supreme Court held that questions about “anarchy” were too vague to require disclosure of Communist Party membership.

3. Truthful Despite Misinterpretation

• The applicant can argue their answer was truthful based on a reasonable interpretation of the question.
• Example: In U.S. v. Profaci, the Second Circuit held that the question “Have you ever been arrested?” could be reasonably interpreted to only apply to U.S. arrests.

V. Procedural Defenses

1. High Burden of Proof

• The government must show clear and convincing evidence that the misrepresentation was material to the naturalization.
• Courts are cautious when taking away citizenship long after it was given.

2. Statute of Limitations

• Courts have held there is no statute of limitations on denaturalization.

3. Procedural Errors

• Procedural errors, such as failure to give notice of denaturalization, can be grounds for dismissal.
• Example: In U.S. v. Ataya, the conviction underlying denaturalization was vacated due to procedural errors.

VI. Equal Protection and Materiality

Equal Protection Claims

• Naturalized citizens have argued that treating them differently from native-born citizens violates the Fifth Amendment’s Equal Protection Clause.
• Courts have held denaturalization statutes are constitutional, distinguishing between citizenship rights and fraud.

Important Cases

1. Schneider v. Rusk

• The Supreme Court struck down a statute that discriminated against naturalized citizens living abroad, saying native-born and naturalized citizens are equal.

2. Current Law

• While naturalized citizens can be treated differently for fraud-related revocations, it must be rational.

VII. Practical Considerations

1. Consequences of Misrepresentation

• Misrepresentation, even if immaterial to eligibility, can raise moral character issues and impact future immigration applications.
• Example: False statements in other contexts can still create doubt about honesty during naturalization.

2. Chilling Effect

• Fear of retroactive review and denaturalization may deter eligible immigrants from becoming citizens even if their applications are truthful.

3. Long-Term Consequences

• Denaturalization proceedings show the importance of transparency and accuracy in naturalization applications to avoid problems later.

Equitable Discretion, Administrative Denaturalization and Derivatives

This guide covers denaturalization, including limits of judicial discretion, administrative denaturalization, consequences of losing citizenship and derivatives such as children and spouses.

I. Equitable Discretion in Denaturalization

Courts Cannot Exercise Discretion to Refuse Denaturalization

• The Supreme Court has said naturalization is a privilege, not a right. Courts have no “equitable discretion” to deny denaturalization if the statutory requirements were not met.
• Case: Fedorenko v. United States held denaturalization is mandatory if citizenship was obtained by illegal procurement or willful misrepresentation of material facts.

Government Negligence Is Not a Defense

• Applicants can’t argue the government’s failure to catch errors during the naturalization process wipes out grounds for denaturalization.
• Example: In U.S. v. Benavides, defenses like government negligence or comparative negligence were deemed irrelevant in denaturalization.

II. Administrative Denaturalization Enjoined

Limited Administrative Authority

• INA § 340(h) used to allow the Attorney General to administratively revoke naturalization but that power has been curtailed:
• Administrative revocation of naturalization is no longer allowed.
• Only federal courts can revoke citizenship through judicial proceedings.
• Administrative agencies like USCIS can cancel naturalization certificates if they were fraudulently issued but can’t strip individuals of citizenship.

Important Case: Xia v. Tillerson

• In this case, Chinese nationals challenged the administrative cancellation of their naturalization certificates.
• The court held:
• Canceling a naturalization certificate does not revoke the underlying citizenship.
• If citizenship is in question, the government must initiate judicial proceedings under INA § 1451.

III. Consequences of Denaturalization

Relation-Back Doctrine

• Revocation of citizenship is retroactive, as if the person was never naturalized.
• The individual reverts back to their pre-naturalization immigration status (e.g., LPR or undocumented).

Criminal Consequences

• Crimes committed after naturalization can’t be used as grounds for deportation once citizenship is revoked.
• Supreme Court Ruling: The relation-back doctrine doesn’t apply to post-naturalization crimes.

IV. Derivatives

Derivatives Defined

• Derivatives are individuals who claim citizenship through a parent or spouse, usually children born abroad or spouses of citizens.

Rules

1. Concealment or Misrepresentation

• If a parent or spouse loses citizenship for these reasons, derivative citizens lose theirs too, wherever they are.
• Example: If a parent lied about prior convictions to get citizenship, the child’s derivative citizenship is also revoked.

2. Illegal Procurement

• Derivatives don’t lose citizenship if the parent or spouse’s citizenship is revoked for illegal procurement.
• Example: A parent’s invalid marriage might void their citizenship but wouldn’t affect the child’s status.

3. Other grounds (e.g. military service or subversive activities)

• Derivatives lose citizenship only if they are outside the U.S. at the time of the parent’s denaturalization.

Examples of Derivative Outcomes

• Military Service: If a parent gets citizenship through military service but is dishonorably discharged, children outside the U.S. lose their citizenship. Children in the U.S. keep theirs.
• Misrepresentation: If a parent lied on the application, derivatives lose citizenship wherever they are.

V. Derivative Citizenship Rules Summary

Grounds for Revocation

 

Grounds for Revocation	Living in the U.S.?	Living Outside the U.S.?
Illegal Procurement	No loss of status	No loss of status
Concealment or Misrepresentation	Citizenship revoked	Citizenship revoked
Other Grounds (Military/Subversive Acts)	Retains citizenship	Citizenship revoked

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VI. Practical Considerations

Protecting Citizenship

• Naturalized citizens should be honest in their applications and aware of the consequences of their actions before and after naturalization.

Impact on Family Members

• Derivatives should monitor any legal challenges involving the principal applicant as the outcome may affect their status.

Administrative Errors

• Administrative errors in issuing certificates may require judicial resolution to determine the status of the affected individuals.

United States v. Farhane: A Denaturalization Case

The case of United States v. Abdulrahman Farhane is an important case related to denaturalization issue. This article breaks down the key events and implications of this big legal battle that affects naturalized citizens.

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Background: Farhane’s Story

• Who is Abdulrahman Farhane?
• Moroccan-born, naturalized Muslim American living in Brooklyn.
• Built a life in the U.S. over 30 years, with two American-born kids.
• The Guilty Plea
• In 2006, Farhane pleaded guilty to federal charges, his lawyer advised him to do so.
• He served 11 years in prison, good time, and got out early.
• The Denaturalization Threat
• After his release, the Department of Justice (DOJ) started to pursue his U.S. citizenship revocation.
• If successful, Farhane would be deported and his children’s derivative citizenship would be revoked.

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Legal Issues: Effective Counsel

• Ineffective Assistance of Counsel
• Farhane’s original lawyer didn’t tell him about the denaturalization consequences of his guilty plea.
• The omission is the basis of Farhane’s motion to vacate his plea.
• The Creating Law Enforcement Accountability & Responsibility (CLEAR) Project at CUNY Law, along with Wilmer Hale, represents Farhane.
• They argued that the failure to advise Farhane violated his Sixth Amendment right to effective counsel.

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Court Proceedings: Timeline

Initial Proceedings

• 2019-2020: Farhane filed a 28 U.S.C. § 2255 motion to vacate his guilty plea.
• The district court denied the motion in March 2020.
• October 2024: The en banc court reversed the district court’s decision.
• Holding: Naturalized citizens must be advised of denaturalization and deportation consequences at the time of guilty plea.

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What it means

For Naturalized Citizens

• Legal counsel must inform defendants of immigration consequences of guilty pleas.
• Stronger defense against retroactive denaturalization.

For Immigration Law

• Trump administration’s effort to expand denaturalization beyond war criminals and Nazis to Muslim Americans and other groups.
• Educates on due process for naturalized citizens facing legal trouble.

For Farhane and His Family

• Farhane keeps his citizenship and his children keep their citizenship.
• Big win for advocates and immigrant rights groups.

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https://immpolicytracking.org/media/documents/ACLU_Fact_Sheet_on_Denaturalization.pdf

 

 

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President-Elect Trump’s plan to deport millions of undocumented immigrants is one of the most massive and divisive initiatives in modern U.S. history. While his plan will appeal to a big chunk of his base it raises serious practical, economic and humanitarian concerns. The potential for legal challenges, public backlash and unintended consequences will test the institutions of the country and the nation’s commitment to human rights, justice and equality. The next few years will decide if these policies will redefine the country and at what cost.

Trump’s deportation plan is not a policy, it’s a recipe for chaos, cruelty and authoritarianism. By looking at the historical context and consequences we can see the dangers of repeating these mistakes. Now more than ever we must reject policies that dehumanize and divide and reaffirm our commitment to justice, dignity and humanity for all.

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The question of whether Donald Trump would deport green card holders was a big fear and topic of speculation during his presidency. Green card holders (also known as lawful permanent residents or LPRs) have generally stable immigration status.

But their status is not immune to legal challenges or policy changes. In this post I’ll break down whether green card holders were deported under Trump, the legal framework for green card holder removals, the policies that caused fear and what green card holders can do to protect their status.

Trump Trump Taps Hardliners Homan and Miller for Immigration Posts

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Now that the 2024 presidential election is over the biggest question being asked is what will the second Trump administration do on immigration?

Former president Donald Trump made immigration the centerpiece of his campaign and promised the “biggest deportation operation in American history” if re-elected. His proposals go way beyond what he did in his first term and will impact millions of immigrants and change the way America approaches immigration enforcement, border protection, security and family reunification.

Trump’s immigration platform goes beyond undocumented immigrants. His policies will change the very fabric of U.S. immigration, legal pathways, citizenship and protections for asylum seekers.

Trump’s immigration agenda will have a big impact on immigrant families, communities and long-standing constitutional protections. A coordinated response from advocates, local governments and pro-immigrant lawmakers will be key to protecting immigrants across the country.

In the next few months, advocates, legal experts and community organizations will continue to push back against Trump’s plans by focusing on legal challenges, public education, legislative advocacy and local protections. This coordinated approach will uphold the core American values of justice, fairness and human rights so that immigration policies reflect the country’s commitment to a fair and kind system for all. File now and be prepared. Stay informed. Stay compliant. Stay safe.