Trump v. Barbara: Supreme Court upholds birthright citizenship
On June 29, 2026, the Supreme Court held in Trump v. Barbara that, under the 14th Amendment of the US Constitution, children born to parents who are unlawfully or temporarily present in the US are US citizens by birth. The Court’s ruling struck down President Trump’s January 2025 Executive Order that attempted to block birthright citizenship for the children of certain noncitizen parents. Read the opinion here, or see below for our firm’s summary of the opinion’s key points.
In a majority opinion written by Chief Justice John Roberts, the Court explains that US citizenship originated from the English common law principle of jus soli, that any child “born within the dominions” [on English soil] was a subject of the King and therefore a “natural-born subject.” Trump v. Barbara, 609 U.S. _____, 3 (2026). Roberts states that “This view crossed the Atlantic with the colonists—and was adopted with little fanfare after the Revolution, as ‘subject[s]’ of the sovereign became ‘citizens’ of the States.” Id. at 4. The US continued to turn to the English common law principle of jus soli to determine whether the children of Native Americans and immigrants were US citizens, and it was the Southern slave states that changed their reasoning of how to determine citizenship so that they could deny birthright citizenship to enslaved Black Americans. See id. at 6. The Supreme Court adopted the southern States’ reasoning in the infamous Dred Scott v. Sandford, 60 U.S. 393 (1856)by ruling that a Black American’s lack of citizenship was due to the enslaved status of at least one parent. Id. at 7.
Roberts then explains that after the American Civil War, the Reconstruction Congress and United States sought to formally overturn the birthright citizenship holding in Dred Scott first by enacting the Civil Rights Act of 1866 and then by ratifying the Fourteenth Amendment. Id. at 7-9. Roberts quotes extensive, well-documented evidence that the Reconstruction Congress knew that the Civil Rights Act of 1866 and the Fourteenth Amendment would confer birthright citizenship to the children of immigrants, and it did not make any difference in how they proceeded with the Act or Amendment. See id.Roberts also points out that even the language of the Fourteenth Amendment mirrored the language of English common law, further proving that the authors of the Fourteenth Amendment never made any change in the way they thought of birthright citizenship. Id. These are key findings, as the Supreme Court and Constitutional Law scholars frequently look to legislative intent to determine what a law or amendment means.
The majority opinion and Justice Ketanji Brown Jackson’s concurring opinion both soundly rebut the fringe arguments attempted in the dissenting opinions. “Domicile” was a key issue debated during this case’s oral arguments, and Roberts dismisses its application to the Fourteenth Amendment. He explains that the “domicile” discussion presented in the previous leading case on birthright citizenship (United States v. Wong Kim Ark, 169 U.S. 649 (1898)) originated from post-Fourteenth Amendment scholars’ “international law” theory, where a child’s citizenship is tied to their parents’ citizenship. Id. at 14. In other words, “domicile” in relation to the international theory of citizenship could not have been something that the Reconstruction Congress or United States intended to use to determine citizenship because it had not yet been invented. Roberts also rejects the Trump Administration’s assertion that the United States’s concept of allegiance (and therefore citizenship) at some point broke from English common law; Roberts points out that there is “scant evidence” in the record showing this break, and writes that “the Government and the dissent identify no source that defined allegiance at birth as being based on domicile in the period from 1776 to 1866.” Id. At 18.
Also of particular note is Justice Jackson’s concurrence addressing Justice Thomas’s dissenting opinion, which makes a race-based distinction between who the Reconstruction Congress intended to confer citizenship to. Jackson writes:
“Despite his longstanding endorsement of a ‘colorblind’ Constitution, Justice Thomas now surprisingly suggests that the Citizenship Clause was a race-conscious remedial measure, relating only to ‘freed slaves such as Dred Scott’ . . . but that narrow vision of the Fourteenth Amendment bears little relationship to the history of its ratification. Even worse, Justice Thomas’s telling elides the entire point of the Second Founding: The Reconstruction Amendments were an anticaste, antisubordination reset for the Nation, not a mere spot treatment for the dark stain of slavery.”
Trump v. Barbara, 609 U.S. _____, 1-2 (2026) [Justice Jackson, concurring]. Jackson then highlights and recognizes Black Americans' key influence and efforts in abolishing slavery and ratifying the Fourteenth Amendment:
“Freed Blacks did not advocate for a unique set of rules that catered only to their situation. Nor did they seek to advance their own position relative to, or at the expense and exclusion of, other marginalized groups. Instead, those whose gatherings helped galvanize the push for full equality understood that ‘a diverse origin does not disprove a common nature, nor does it disprove a united destiny.’”
Id. at 10. To conclude her opinion, Jackson states in one of the last paragraphs that
“this alternative account [the dissenting opinion] pitches Black Americans against immigrants when the advocates who promoted the Fourteenth Amendment did no such thing. Freed Blacks fought for the shared humanity of all people. And the Great Emancipator eventually foresaw that the only path forward that could prevent a return—in any form—to slavery and race-based subordination was to link the fates of all.”
Id. at 19.
Visa Bulletin Update
The Department of State publishes a monthly Visa Bulletin which operates as the “waiting list” for green cards (immigrant visas), with an individual’s Priority Date serving as their place in line. The Bulletin identifies all immigrant visa “preference” categories and indicates whether a backlog exists for that category. When a backlog exists, an individual in that category may not apply for a green card (or “adjust status”) until their Priority Date becomes “current.” A priority date is current when it is earlier than the date listed in the Visa Bulletin. The Bulletin lists family-based (“FB-”) preference categories and employment-based (“EB-") preference categories. These categories are further separated into two charts: the Final Action Dates chart and the Dates for Filing chart. The Final Action Dates chart indicates whether an individual can expect USCIS to make a decision on their application soon, whereas the Dates for Filing chart, if USCIS chooses to use it that month, indicates whether an individual may file their adjustment application and receive the benefits associated with having a green card application pending with USCIS.
In July 2026, USCIS will be using the Dates for Filing chart for family-based preference categories and the Final Action Dates chart for employment-based categories.
This month, there were notable retrogressions for the EB-1 India and EB-2 India Final Action Date categories, and slight advancements in the EB-3 and Other Workers categories for India and China. These changes were as follows:
EB-1:
China: advanced 2 months
India: retrogressed 2 months
All Other, Mexico, Philippines: no changes
EB-2:
India: Unauthorized (no visa numbers can be issued)
China, All Other, Mexico, Philippines: no changes
EB-3:
China: advanced 4.5 months
India: advanced 2 weeks
All Other and Mexico: advanced 2 months
Philippines: no change
Other Workers:
China: no change
India: advanced 2 weeks
All Other, Mexico, and Philippines: advanced 1 month
See the July 2026 Visa Bulletin here.
If you have questions about planning, please schedule a consultation with one of the attorneys at Iandoli, Desai & Cronin (info@iandoli.com).
“Trump's Deportations are Costing Americans Jobs” per the National Bureau of Economic Research via the New York Times
On May 19, 2026, the New York Times shared a study from the National Bureau of Economic Research showing that the Trump Administration’s deportation policies and practices have resulted in a net loss of jobs for US Citizen workers. The National Bureau of Economic Research (“NBER”) is a leading independent and nonpartisan economic research organization. Per the New York Times,
“Analyzing federal labor data, researchers focused on four industries that rely heavily on undocumented immigrant workers: agriculture, construction, manufacturing and wholesale. Deportations had a chilling effect on each of those industries, disproportionately affecting men, who accounted for more than 90 percent of the immigration arrests. Taken together, the affected industries saw a 5 percent drop in employment for male undocumented workers and a 1.3 percent drop for male American-born workers without a college degree. The researchers found no evidence that employers increased wages to attract American workers. Instead, work slowed.”
Read the New York Times article here and the NBER study here.
Cap season update: July 2026
The initial filing period for H-1B cap FY 2027 petitions has now closed. As of June 26, 2026, USCIS estimates that they will adjudicate 80% of H-1B cap petitions within nine months of receiving the case, so petitioners can generally expect an update on their April 2026 petition filings by December 2026, and June 2026 petition filings by February 2027.
It is possible that USCIS will run a second round of the H-1B cap lottery if they did not receive enough petitions during the initial filing period. If so, USCIS will make lottery selections from the original pool of entries in March 2026 and will notify those selected via their USCIS account.
State Department issues J-1 Conrad/HHS waivers for physicians at an expedited pace in June 2026
We are pleased to share that we have seen the State Department and USCIS issue J-1 Conrad/HHS waivers for physicians at an expedited pace in June 2026. A lengthy adjudicatory pause from the US Department of Health and Human Services (“HHS”) earlier this year had risked the immigration status and employment authorization for hundreds of international physicians who are ending their residency programs on June 30. As we had shared last month, HHS resumed processing for these cases, and the State Department and USCIS have since quickly processed the waiver recommendations. Many of these physicians will now likely only experience a brief delay in their employment authorization. However, anecdotal reports do show that some of these cases have remained pending for a long period of time.
Peterson Institute for International Economics: “Class dismissed – the effect of international student exclusion on the US STEM workforce and economic growth”
In June 2026, The Peterson Institute for International Economics released a new Policy Brief analyzing the impact that the exclusion of international students has had on the US STEM workforce and economic growth. The report had the following four key takeaways:
The Trump Administration’s efforts to restrict immigration have resulted in a one-third reduction in student visa issuance;
The international student visa decline will have a substantial impact on the US STEM workforce, as 35% of all STEM workers with a Ph.D. were not born in the US but came here as international students;
A continuous one-third reduction in STEM graduates in the US would shrink the high-skilled STEM workforce by 6.2% overall and 11.5% for workers with doctorates; and
The reductions noted in (3) above “would cut annual US real GDP by $240 billion to $480 billion within a decade – a loss the size of a mid-sized US state like Wisconsin or Utah.”
Read the report from the Peterson Institute here.
AILA Flyer: Checklist for F-1 Students Transitioning to Cap-Subject H-1B Status
The American Immigration Lawyers Association recently published a client flyer to help international students transition from F-1 to H-1B status. The flyer makes the following key recommendations for F-1 students:
Make sure your H-1B petition is field while you are still on F-1 OPT
Stay within the OPT unemployment limits
If you are on STEM OPT, remember to complete your annual self-evaluations in a timely fashion
International travel will be restricted during this transition
Coordinate with the DSO if you want an updated Form I-20 indicating the cap-gap extension
Keep your DSO updated on any changes.
Download a copy of the client flyer here.
Reminder to international students: producing online content in US to generate income requires employment authorization
We wish to remind F-1 international students that the terms and conditions of their F-1 status place strict limits on employment activities outside of pre-degree-completion Curricular Practical Training and post-completion Optional Practical Training. The US government will likely consider any work performed with the intent to general income (or volunteer work performed that would typically generate income) to require employment authorization.
For example, the US government recently warned internet influencers coming to the US to attend the World Cup that their B-1/B-2 tourist visas do not allow them to produce content that they intend to post on social media to generate income. This warning is directly applicable to F-1 students, as both the B-1/B-2 and F-1 nonimmigrant visa categories do not grant employment authorization.
We also point out that producing online content with the intent to generate income is particularly risky because platform visibility makes it quite easy for immigration officials to view their content, and that content then serves as evidence that the influencer violated the terms of their nonimmigrant status.
We encourage F-1 international students to speak with their Designated School Officials regarding any questions they have about their business activities in connection to their F-1 status.
Update on D/S Elimination: OMB review completed, Final Rule publication expected soon
On June 16, 2026, the Office of Management and Budget finished its required financial review of the Trump Administration’s proposal to end the Duration of Stay (“D/S”) designation for F-1, J-1, and M-1 nonimmigrants. Publication of the Final Rule is expected soon, and we will provide updates as we receive them. For background information on D/S Elimination, see our previous post here.
‼️ FEDERAL COURT UPDATE‼️
Federal District Courts in Rhode Island and Massachusetts issued final rulings on two significant issues effecting immigrants and their employers.
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On Friday, June 5, 2026, the Federal District Court for Rhode Island in Dorcas International Institute of Rhode Island vs. USCIS set aside and declared unlawful USCIS’s January 1, 2026 policy of withholding review of petitions and applications involving individuals whose country of birth or country of citizenship is among the 39 countries subject to a partial or complete travel ban.
The Court noted that “the rule of law has to apply to everyone equally and, as evident here, USCIS has neither ‘followed the law’ nor ‘done things the right way.’” The Court found the USCIS’s policy was contrary to the Immigration and Nationality Act, was arbitrary and capricious, and set aside and vacated the policy in its entirety. USCIS must now resume adjudicating petitions and applications for affected foreign nationals and their employers.
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On Monday, June 8, 2026 the Federal District Court for Massachusetts in a lawsuit brought by the State of California, Commonwealth of Massachusetts, and 18 other states, set aside and declared unlawful the September 19, 2025 Presidential Proclamation which instituted a $100,000 additional filing fee requirement for employers filing H-1B petitions for persons outside the U.S., petitions requesting consular processing even if the sponsored individual held prior H-1B status/visas, or petitions converted to consular processing due to failure to maintain status.
The Court held that the $100,000 payment requirement “improperly levies a tax on H-1B petitions” without Congressional authorization. In addition, the Court found that the Department of Homeland Security’s implementation of the Proclamation violated the Administrative Procedure Act for failing to “offer a reasoned explanation for enacting a heavy tax on the H-1B program” and failed to “provide any explanation for imposing a tax on employers in [the education or health care sector], let alone address these employers’ reliance interests on the H-1B program as it existed before the Policy.” Like the Court in Rhode Island, the $100,000 payment requirement has been set aside and vacated in its entirety.
These rulings are of major significance and likely will be appealed by the Government. Until a higher court stays these rulings, USCIS must adhere to each Court’s vacatur and judgment.