A divided Eleventh Circuit recently ruled against a Jamaican national’s claim to U.S. citizenship, holding that his mother’s naturalization before his 18th birthday did not confer derivative citizenship because his parents had remarried by the time of her naturalization.

Potential Derivative Citizenship Implications

This decision reinforces a strict interpretation of derivative citizenship under the Immigration and Nationality Act (INA), requiring that all statutory conditions, including legal separation, remain in effect at the time of naturalization. It also highlights ongoing judicial debates over statutory interpretation in immigration law, particularly regarding derivative citizenship claims.

Individuals facing similar circumstances should seek legal counsel to assess their eligibility for derivative citizenship and explore potential defenses against removal proceedings.

Sheldon Turner v. U.S. Attorney General Background

The Jamaican national entered the United States as a lawful permanent resident in 1990. He was born in Jamaica in 1981 to parents who were married at the time of his birth but divorced in 1987. Following the divorce, his mother married a U.S. citizen and later moved to the United States with her son. However, she divorced and subsequently remarried the Jamaican national’s father in 1994. In 1999, when the Jamaican national was 17, his mother became a naturalized U.S. citizen.

More than 15 years later, in an effort to avoid deportation for a criminal offense, the Jamaican national argued that he derived U.S. citizenship through his mother’s naturalization, citing an INA provision that grants automatic citizenship to a child born outside the United States to noncitizen parents when one parent naturalizes, and the parents have legally separated.

An immigration judge rejected the claim, concluding that because his parents had remarried before the applicant’s mother’s naturalization, he did not meet the statutory requirement of “legal separation.” The Board of Immigration Appeals (BIA) upheld this decision in March 2022, leading the applicant to appeal to the Eleventh Circuit. The court found that the relevant INA provision required a “continuing” legal separation at the time of naturalization. It interpreted the statute to mean that parental separation must still be in effect when the naturalization occurs, rather than simply having occurred at some point in the past. Since the applicant’s parents had remarried prior to his mother’s naturalization, he failed to meet the statutory requirement, and his appeal was denied. The court emphasized that naturalization is the “principal event” in determining derivative citizenship and that all statutory conditions—including legal separation—must be satisfied at the time of naturalization.

The U.S. Department of State has unexpectedly updated various Consular websites with revised eligibility requirements for the Visa Interview Waiver (also known as dropbox or mail-in) program, reverting to narrower pre-COVID-era eligibility criteria. The interview waiver program simplifies the procedure to apply for a U.S. visa stamp by eliminating the requirement for eligible individuals to attend in-person visa interviews at U.S. embassies and consulates.

Updated Visa Interview Waiver Eligibility Criteria

Effective immediately, eligibility to waive the in-person visa interview is limited to applicants renewing a visa in the same nonimmigrant classification that expired within the past 12 months, in addition to other general requirements. Previously, applicants qualified if their visa had expired within the last 48 months and, in some cases, qualified for an interview waiver when applying for a visa classification for the first time. This prior policy was introduced during COVID-19 to reduce consular backlogs.

Under both the current and prior eligibility criteria, applicants seeking an interview waiver must apply in their country of nationality or residence and qualify only if they have never been refused a visa (unless overcome or waived) and have no other ineligibility.

Impact on Nonimmigrant Visa Applicants

This rollback could have significant implications for H-1B, L-1, O-1, and other nonimmigrant visa holders who previously relied on eligibility for an interview waiver. Applicants who no longer meet the stricter criteria must now schedule an in-person visa interview at a U.S. consulate. Recent reports indicate that some applicants with scheduled visa processing based on an interview waiver were turned away and instructed to schedule in-person interview appointments instead. Other key impacts may include:

  • Increased demand for in-person visa appointments and longer wait times for appointments, particularly in high-volume locations, as consulates absorb an increased volume of in-person interviews.
  • Potential travel disruptions for those expecting to use processing based on an interview waiver. Advance planning of travel will be required as availability of in-person appointments may vary.

Considerations for Nonimmigrant Visa Applicants

  • Verify eligibility before proceeding with a scheduled interview waiver appointment. If the prior visa expired over 12 months ago or the applicant is applying for a different category, rescheduling for an in-person interview is necessary. Applicants should contact their specific consulate for instructions to ensure they are following the correct process.
  • Plan ahead for delays. Visa wait times are already lengthy, and increased demand for in-person appointments may exacerbate backlogs.

The U.S. Department of State (DOS) released the availability of immigrant numbers in its March 2025 Visa Bulletin. All dates listed below are based on the final action dates for employment-based preference cases. Applicants must have a priority date that is earlier than the final action date listed for their preference category and country to be eligible to file an employment-based adjustment of status application.

EB-1: Employment-Based, First Preference Category

All EB-1 categories see no movement and the dates remain unchanged. Mexico, Philippines, and All Chargeability categories remain current; EB-1 India remains fixed at Feb. 1, 2022; and EB-1 China remains fixed at Nov. 8, 2022.

EB-2: Employment-Based, Second Preference Category

In the EB-2 category, Mexico, Philippines, and All Chargeability categories advance six weeks to May 15, 2023. EB-2 India also jumps six weeks to Dec. 1, 2012. EB-2 China advances to May 8, 2020.

EB-3: Employment-Based, Third Preference Category

Both China and India show movement in the EB-3 category, as China advances one month to Aug. 1, 2020, and India advances six weeks to Feb. 1, 2013. There is no movement in the EB-3 dates for Mexico, Philippines, and All Chargeability areas, which remain at Dec. 1, 2022.

EB-4 Religious Workers

All countries in the EB-4 category retrogressed by 17 months to Aug. 1, 2019.

EB-5: Employment-Based, Fifth Preference Category

There is no change in the final action dates in the EB-5 category for March 2025.

The filing dates of employment-based visa applications are:

The DOS Visa Bulletin summarizes the availability of immigrant numbers and releases final action dates and filing applications date charts monthly for both employment-based visas and family-based visas. USCIS confirms which chart applicants must use to file their adjustment of status application. For March 2025, USCIS announced it will only accept adjustment of status applications based on the final action dates chart for all employment-based preference categories, while all family-sponsored preference categories may use the dates for filing chart.

In recent weeks, the Trump administration implemented a series of measures focused on Colombians arriving in the United States. These actions came in response to a diplomatic standoff between the two nations over the repatriation of Colombian nationals. The tension began when Colombian President Gustavo Petro refused to accept deportation flights carrying Colombian citizens from the United States. This refusal led to a series of retaliatory measures from the Trump administration, including threats of imposing tariffs on Colombian goods.

Under President Trump’s orders, the U.S. Customs and Border Protection (CBP) ramped up inspections involving Columbians at U.S. ports of entry. This included enhanced scrutiny of flights, private aircraft, and cargo coming from Colombia. CBP denied boarding to flagged visa holders and, in coordination with the Department of State, enforced a travel ban on certain Colombian officials.

The diplomatic disagreement also led to the cancellation of hundreds of U.S. visa appointments in Colombia. Many Colombians who had scheduled appointments at the U.S. Embassy in Bogota were informed that their appointments were canceled as a direct result of the Colombian government’s refusal to accept repatriation flights.

After negotiations, Colombia agreed to accept the deported migrants, but the long-term implications for U.S.-Colombia relations remain to be seen. The Trump administration’s actions regarding Colombia may signal growing complexities in U.S.-international relations and highlight the influence of diplomatic relations on U.S. immigration policies.

On Jan. 28, 2025, the Trump administration, acting through its Secretary of the Department of Homeland Security (DHS), revoked the extension of Temporary Protected Status (TPS) for Venezuelans residing in the United States. This decision reverses the 18-month extension granted Jan. 17, 2025, under the Biden administration. The revocation of TPS for Venezuelans means that the protections set to last until October 2026 will now revert to their prior expiration dates and TPS beneficiaries, who have already applied or intended to re-register, will no longer benefit from the extension. Instead, the 2023 Venezuela TPS designation remains valid for current beneficiaries through April 2, 2025, and the 2021 Venezuela TPS designation remains valid for current beneficiaries through Sept. 10, 2025.

DHS grants TPS to eligible individuals from countries experiencing ongoing armed conflict, environmental disasters, or other extraordinary conditions, which allows them to live and work in the United States without fear of deportation.

Employees with Venezuela TPS may have work authorization through either facially valid documents or automatic extensions. Employers should assess each employee’s work authorization on a case-by-case basis. The first Trump administration attempted to terminate several TPS designations, leading to court challenges, and this most recent revocation of TPS may similarly face legal challenges.

In this episode of GT’s Immigration Insights series, host Kate Kalmykov is joined by Jill Jones, Head of Specialty Administration/General Counsel US, JTC, to discuss the EB-5 Reform & Integrity Act of 2022; how the post-RIA fund administrator is different from pre-RIA; the value of a fund administrator in EB-5 securities offerings; and the need for construction consultants.

Click here to watch the episode.

In this episode of GT’s Immigration Insights series, host Kate Kalmykov is joined by GT colleague Jennifer Hermansky to discuss USCIS regional center audits, including an introduction of the RIA 2022, site visits, and debarment procedures for bad faith actors.

Click here to watch the episode.

On 13 January 2025, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the UK’s Office of Financial Sanctions Implementation (OFSI) (collectively, the Participants) published an information-sharing Memorandum of Understanding (MoU), which was signed and took effect on 9 October 2024. The MoU memorializes the strong collaboration between the USA and UK in investigating and enforcing economic sanctions and promoting compliance with economic and trade sanctions.

Continue reading the full GT Alert.

Immediately after assuming office on Jan. 20, 2025, President Donald Trump began issuing numerous executive orders. While they may not immediately impact business immigration, many of them presage changes in the business immigration landscape. The following is an analysis of several of these executive orders from that perspective:

  • Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats. This executive order largely reiterates Trump’s Proclamation 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, an executive order from his previous term. It tasks various government agencies with reviewing all visa programs to prevent foreign nation-states or other hostile actors from hurting the United States. This order will most likely result in an increase in scrutiny of visa applications and an increase in processing times across the board for all business immigration. We can expect an increase in the number of visa applications subject to administrative processing. These effects may discourage business immigration as business realities clash with system slowdowns.
  • America First Trade Policy. This executive order largely reiterates Trump’s Executive Order 13788, Buy American and Hire American (BAHA), from his previous term. The U.S. Trade Representative has been directed to review the implementation of trade agreements to ensure they favor domestic workers and manufacturers, consistent with the principles of that prior executive order. This may lead to a tightening of the labor market, as companies could be discouraged from hiring available foreign national candidates for positions. This could lead to an immigrant brain-drain as highly skilled immigrants trained at U.S. universities and institutions potentially immigrate to countries such as Canada. The USTR’s review may also affect treaty-based visas, such as the TN, E-1, E-2, and H-1B1 visas. Trump also issued America First Policy Directive to the Secretary of State, which may result in increased scrutiny of employment-based visa applications, as BAHA did under Trump’s previous term.
  • Guaranteeing the States Protection Against Invasion. This executive order characterizes migration at the southern border as an “invasion” and imposes vetting requirements on those immigrating to the United States. The likely impact is to create enhanced medical and security requirements for immigrants entering the U.S. While this executive order is drafted with the southern border in focus, Customs and Border Protection and the Department of Homeland Security will likely impose additional restrictions on business immigration as well, potentially creating travel disruptions due to inconsistent experiences at points of entry.
  • Designating Cartels and Other Organizations as Foreign Terrorist Organizations and Specially Designated Global Terrorists. The designation of criminal organizations in the United States and Central America may portend a crackdown on and enhanced vetting of immigrants, including business immigrants, from areas where these organizations operate. This could cause slowdowns in business immigration across the southern border with Mexico.
  • Protecting the American People Against Invasion. This executive order expands expedited removal and revokes humanitarian parole programs created by the prior administration. Individuals who have secured status under those programs will be unable to renew work permits. It may also result in the return of “public charge” policies, which previously resulted in a slowdown for business immigrants seeking lawful permanent residency status. Furthermore, increased scrutiny and interior enforcement may lead businesses to forego hiring immigrant workers.
  • Protecting the Meaning and Value of American Citizenship. This executive order seeks to re-interpret the Constitution’s guarantee of citizenship for those born within the United States territory and who are subject to the jurisdiction of the United States. Notably, this executive order attempts to remove the grant of citizenship to certain business immigrants’ children born in the United States. Lawsuits have been filed challenging the impact of this executive order. This action may lead to increased difficulties for companies in recruiting and retaining foreign workers.

Conclusion

While these orders do not have an immediate impact on business immigration, they will likely cause an increase in administrative costs for companies with foreign workers and create retention challenges for companies. This may lead to an immigrant brain-drain, as highly skilled professionals, some of whom have been trained and educated in the United States, potentially seek to leave the country.

On Jan. 2, 2025, the Department of Homeland Security (DHS) issued a final rule adjusting its civil monetary penalties for inflation for 2025. The updated penalty amounts apply to violations that occurred after Nov. 2, 2015, and are assessed on or after Jan. 2, 2025.

U.S. Immigration and Customs Enforcement (ICE) has increased penalties for Form I-9 violations.

Here are the 2025 U.S. Immigration and Customs Enforcement Civil Penalties Adjustments:

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I-9 Inspection

The Immigration Reform and Control Act of 1986 mandates that employers verify their employees’ identity and employment eligibility using Form I-9. Employers must retain these forms for current employees and for a specified period for former employees. The administrative inspection process begins with a Notice of Inspection (NOI), giving employers at least three business days to produce the requested Form(s) I-9.

During inspections, Homeland Security Investigations (HSI) may request additional documentation, such as payroll records and business licenses. If technical or procedural errors are found, employers have 10 business days to correct them. Substantive violations or uncorrected errors may result in fines, and knowingly hiring unauthorized workers may lead to more severe penalties, including criminal prosecution. HSI issues various notices based on inspection findings, such as:

  • Notice of Inspection Results: Also known as a “compliance letter,” this notice confirms that a business meets all employee eligibility verification requirements.
  • Notice of Suspect Documents: Indicates that employee documentation may be invalid. Employers and employees can provide additional proof of work authorization to contest this finding.
  • Notice of Discrepancies: Indicates uncertainty about employee eligibility. Employers should inform employees and allow them to submit further documentation to HSI.
  • Notice of Technical or Procedural Failures: Identifies errors in Form I-9 completion, granting employers 10 business days to correct them. Uncorrected issues become substantive violations.
  • Warning Notice: Issued for substantive violations with an expectation of future compliance, except in cases of repeated offenses, failure to correct errors, complete non-compliance, hiring unauthorized workers, or fraud.
  • Notice of Intent to Fine (NIF): Issued for serious violations, including uncorrected errors and knowingly hiring unauthorized workers.

The following table represents HSI’s criteria used to enhance, mitigate, or deem neutral the base fine amount:

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Please see the U.S. Immigration and Customs Enforcement Form I-9 Inspection Fact Sheet for complete information about each type of HSI notice and the enhancement matrix.

Considerations for Employers

Prioritizing compliance may help employers avoid the risk of increased fines and penalties for Form I-9 violations. Increased oversight, heightened enforcement, and on-site inspections may be a possibility. Employers should consider regular self-audits to identify and correct technical or procedural errors before a government inspection. Proper training of HR personnel and managers on accurate completion, storage, and retention requirements is equally important. Employers should also consider implementing processes for verifying identity and employment eligibility, including tracking deadlines for retention and re-verification where necessary.

Experienced counsel can provide guidance in implementing compliant Form I-9 practices or addressing issues identified during audits.

More insights into I-9 compliance are available on the Greenberg Traurig Inside Business Immigration Blog.