Cyrus Mehta

2021 in Perspective from The Insightful Immigration Blog

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Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the blogs that were published in 2021.

While President Biden’s presidency ushered in new hope, former President Trump’s restrictive immigration policies still reared their ugly heads into the early weeks of 2021. On the last day of 2020, President Trump extended two previously issued Presidential Proclamations suspending the entry of certain immigrants and nonimmigrants. Then, in the second week of the new year, mere days before the inauguration of President Biden, President Trump’s administration promulgated a new rule that changed the way in which prevailing wage levels were computed for purposes of permanent labor certifications and Labor Condition Applications. Once in office, President Biden aggressively rescinded many of President Trump’s harshest immigration actions including the Muslim and Africa bans and also promised bold new legislation and changes to our immigration system. New Attorney General Merrick Garland also overturned Castro-Tum and reinstated Matter of Avetisyan which allows immigration judges and the Board of Immigration Appeals to administratively close removal proceedings. In his first five days in office, President Biden signed an executive order entitled the Future is Made in All of America by All of America’s Workers revoking President Trump’s Buy American Hire American Executive Order which unlike the former President’s order was not designed to impede immigration.

Amid promises of new immigration reform and attempts to remedy the former president’s immigration policies, the COVID-19 pandemic ravaged on, and the new president could not ignore the topic of travel restrictions, but offered some reprieve in the form of national interest exceptions. We covered these developments through our widely disseminated blogs and argued that imposing travel bans for certain classes of individuals and in some cases immigrants and nonimmigrants alike is not an effective way to curb the spread of COVID-19.

Delays have been a prominent theme under the Biden Administration. Trump era biometrics requirements for H-4 and L-2 dependents resulted in their extensions being processed months behind their principal applicants. Additionally, processing delays prevented many H-4 and L-2 spouses from getting their Employment Authorization Documents (EADs) ahead of their employment start dates. The November 2021 Visa Bulletin seesaw reflected in our blog was widely read as it provided practical tips for negotiating the employment based backlogs and delays. When the USCIS issued a policy allowing auto extensions of EADS for pending H-4 and L-2 spouses, we explained why this policy has limited practical usefulness and the need to improve it.

Our blogs have also focused on problems in USCIS policy regarding the Child Status Protection Act (“CSPA”) and argued that a derivative-child’s age should be frozen using the Dates for Filing and not the Final Action Date as current policy dictates. However, the Department of State’s latest policy regarding interview waivers has been salutary, but here too we pointed how these administrative fixes can be extended to provide even more relief.

On the business immigration front, we wrote about changes in the Standard Occupation Classification and how a new Board of Alien Labor Certification Appeals decision and DOJ and DOL settlements with Facebook may affect an employer’s good faith recruitment for labor certification purposes.

Our blogs have reflected many of these trends and advocated for further improvements. LexBlog has featured some of our blogs such as the blog critiquing the latest Omicron ban against Southern African countries, which will be rescinded on December 31. Our blogs are published on LexisNexis Immigration News and other online sites, and are also picked up in the media. In addition to blogs of Cyrus Mehta, Kaitlyn Box, Isabel Rajabzadeh, David Isaacson, Jessica Paszko, and Cora-Ann Pestaina contributed to The Insightful Immigration Blog making it the go to resource on contemporary immigration issues and trends.  Additionally, this year, we warmly welcomed contributions from guest bloggers Professor Stacy Caplow, Sophia Genovese, and Brad Banias.

While it is disappointing that the immigration reform provisions in the Build Back Better Act (“BBBA”) have not gone through, President Biden’s presidency still offers hope. There is also hope for more administrative actions that can provide relief to millions including granting parole to unauthorized noncitizens as INA § 212(d)(5) already authorizes such an act even if it did not pass in the proposed BBBA. Other innovative ideas for agency action as proposed in this Cato report (that incorporated two ideas from our blogs) should also be implemented, and we will continue to provide refreshing new perspectives and ideas for immigration reform through our blogs.

Notwithstanding the new challenges posed by the corona virus and its variants, we look forward to blogging in 2022, and wish all our readers a safe and happy new year. Below are all the blogs we published in 2021:

  1. Extending the Immigrant and Nonimmigrant Visa Bans: The Last Gasps of 212(f) Jurisprudence Under Trump
  2. Trump’s Final Attacks on H-1B Visas and Legal Immigration: Reintroduction of the Wage Rule and Rule Requiring Client Companies to File H-1B Petitions
  3. President Biden Ushers in New Hope on Immigration after Trump’s Destructive and Xenophobic Four Years
  4. The Rescission of Trump’s Buy American Hire American Will Benefit Immigrants and America
  5. State Dept. Exempts Certain Travelers From Restrictions: Is there a Better Way So That the Least Number Get Impacted?
  6. To Amend, or Not to Amend: That is the Question For Visas Not Associated With a Labor Condition Application
  7. Overcoming a COVID Travel Ban Through the National Interest Exception
  8. President Biden Must Reject Trump Era H-1B Lottery Rule and Work Visa Travel Ban
  9. CSPA Triumphs in Cuthill v. Blinken: Child of Parent who Naturalizes Should not be Penalized
  10. The Law Does Not Compel the Impossible– Or Does It?: Matter of C-C- and Awuku-Asare v. Garland
  11. End the Arbitrary H-1B Lottery and Visa Quotas – and other practical considerations for the winners!
  12. Coping with Delays Facing H-4 and L-2 Spouses
  13. Coping with Delays Facing H-4 and L-2 Spouses When They Have a Pending Adjustment Application – Part 2
  14. What Happens to a Lawful Permanent Resident Who Has Been Stranded For Over One Year Abroad and the Green Card Validity Has Expired?
  15. US Imposes Covid Travel Ban on India: How Effective Are Such Travel Bans?
  16. The First Step for Reforming the Immigration Courts is to Allow Immigration Judges to Administratively Close Cases
  17. Proposals for Shattering Barriers and Obstacles to Legal Immigration Without Waiting for Congress to Act
  18. State Department’s New Guidance Broadening Transmission of Citizenship to Children Born Abroad Is Welcome and Consistent with Federal Court Decisions
  19. Sanchez v. Mayorkas: Although TPS Is Not An Admission, Justice Kagan’s Opinion Leaves Open Avenues for TPS Recipients to Adjust Status as Nonimmigrants
  20. Reflections on Giuliani’s Suspension of his New York Bar License
  21. Requesting Premium Processing on a Downgraded I-140 Petition
  22. Wang v. Blinken Nixes Any Hope for Excluding the Counting of Family Members in the Green Card Caps
  23. No Longer in Use: How Changes in SOC Systems Affect Employment-based Immigration
  24. The Fight for Immigration Justice Is Not Over: SCOTUS Rules Mandatory Detention of Certain Immigrants Seeking Safety in the United States
  25. The Sinking Immigration Court: Change Course, Save the Ship
  26. Matter of Castro-Tum is Dead Everywhere Except in the Sixth Circuit: It Must be Buried There Too
  27. “The Process By Which Removability Will Be Determined”: How the Recent District Court Decision Ordering the Reinstatement of MPP Contradicts Itself
  28. If the US Does Not Eradicate Vaccine Inequality, the Requirement of COVID Vaccinations for Many Green Card Applicants Will Result in a De Facto Ban
  29. Reflections of Two Immigration Lawyers on the 20th Anniversary of the September 11 Attacks
  30. Long Live Matter of Hosseinpour: Making the Case for Dual Intent in All Nonimmigrant Visas
  31. Recent Trends in Requests for Evidence on I-140 Petitions
  32. Migration in the Time of COVID-19 Ebook – How Much Has the Pandemic Really Shifted the Immigration Landscape?
  33. November 2021 Visa Bulletin Seesaw: Frequently Asked Questions
  34. Handling Confidentiality, Adverse Interests, and Settlements in Group Suits
  35. The Facebook Settlement Resolving Claims of Discrimination Against U.S. Workers Only Adds to the Contradictions in the Labor Certification Program
  36. Florida Detox Centers Provides Further Guidance on Resume Review in Labor Certification Recruitment
  37. The Legal Basis Underpinning the New Automatic Extension of Work Authorization for H-4, L-2 and E-2 Spouses, and Why It Must Still Be Challenged
  38. The Ineffectiveness of the Latest Omicron Travel Ban From the Perspective of Immigration Lawyers
  39. The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?
  40. State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student Nonimmigrant Intent

(Jessica Paszko, a Law Clerk with Cyrus D. Mehta & Partners, significantly contributed to this final post of 2021.)

Cyrus Mehta

State Department’s Holiday Gifts: Expanded Interview Waivers and Lenient View on Student  Nonimmigrant Intent

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The State Department has given much needed holiday gifts to ease delays in visa processing brought about by the evisceration of consular operations due to Covid-19.

According to a  December 22, 2021 article in Roll Call, visa applicants in London, Paris and Mexico City, for instance,  must wait about two months for a nonimmigrant visa appointment. In Toronto, the wait for such an appointment is more than a year, while at US Consulates in India, visa appointments are available only on an emergency basis. The situation has become so dire that many in the US who are in status but whose nonimmigrant visas have expired prefer to remain in the US rather than travel abroad to visit family. Those who leave the US must wait for months before they can get a new visa to reenter the US.

I was quoted in the Roll Call article advocating that the 48 month interview waiver policy be extended, and a day later on December 23, 2021, the State Department did precisely this by  indefinitely extending the in-person interview for applicants renewing a visa in the same visa class within 48 months of the prior visa’s expiration. The State Department went even further by waiving the in person interview for many nonimmigrant visa classifications. To summarize: Those who have previously received any type of visa, or have used ESTA to travel to the US, and have never been refused a visa in a way that wasn’t overcome, may be able to obtain H-1B, H-3, H-4, L, O, P, and Q visas without an interview. The expanded interview waiver policy can be found at https://www.state.gov/expanded-interview-waivers-for-certain-nonimmigrant-visa-applicants/.

The expanded interview waiver policy will most certainly provide relief to visa applicants who were otherwise subject to interminable delays in visa processing as a result of limited visa operations due to Covid-19. It will also allow consulates to focus their limited resources on visas that require interviews such as immigrant vias, E visas and those not subject to the expanded interview waiver policy thus shortening the delays. Even if interviews can be waived, “embassies and consulates may still require an in-person interview on a case-by-case basis and dependent upon local conditions.” There is also uncertainty whether people would be able to easily schedule Drop Box appointments as many report that obtaining such appointments in India are hard to get.

The State Department’s expanded interview waiver policy is an example of how the Biden administration can bring about much needed relief to visa applicants through a simple administrative fix. More can be done such as reinstating the ability to obtain a visa stamp in the US itself if the first visa in the same classification  was issued at a US embassy or consulate. This used to be the case until the State Department discontinued stateside visa processing in 2004 as a result of the need to impose  enhanced security measures after the September 11, 2001 attacks. The State Department should also consider conducting video interviews, among other measures suggested by AILA to reopen America,  as that would certainly help in reducing the backlog of immigrant visa applicants waiting to be processed at US consulates around the world.

 

Relaxed Policy in Determining Student Nonimmigrant Intent

In another smart move, the State Department brought back the relaxed policy regarding F-1 and M-1 visa nonimmigrant intent in the Foreign Affairs Manual at https://fam.state.gov/FAM/09FAM/09FAM040205.html. The new policy recognizes that students applying for  F-1 or M-1 visas do not have the same strong ties with their home country as B visa applicants, and they should not be subject to the same vigorous scrutiny of determining whether they have a residence abroad which they have no intention of abandoning and whether they intend to depart the US after they finish their studies. The following extract from 9 FAM 402.5-5(E)(1) is worth noting as its refreshing:

The context of the residence abroad requirement for student visas inherently differs from the context for B visitor visas or other short-term visas.  The statute clearly presupposes that the natural circumstances and conditions of being a student do not disqualify that applicant from obtaining a student visa.  It is natural that the student does not possess ties of property, employment, and continuity of life typical of B visa applicants.  These ties are typically weakly held by student applicants, as the student is often single, unemployed, without property, and is at the stage in life of deciding and developing their plans for the future.  Student visa adjudication is made more complex by the fact that students typically are expected to stay in the United States longer than do many other nonimmigrant visitors, to complete their program of studies.  In these circumstances, it is important to keep in mind that the applicant’s intent is to be adjudicated based on present intent – not on contingencies of what might happen in the future, after a lengthy period of study in the United States.  Therefore, the residence abroad requirement for student applicants should be considered in the context of the usual limited ties that a student would have, and their immediate intent………

While students may not be able to demonstrate the same strong “ties,” present in other classes of applicants, their typical youth often conveys a countervailing major advantage in establishing their bona fides: they are not expected to, or do not necessarily have a long-range plan, and may legitimately not be able to fully explain their plans at the conclusion of their studies.  As most students are relatively young and many reside with parents or guardians, you can consider a student to be maintaining a residence abroad if he or she intends to return to reside with parents or guardians.  Nonetheless, you must be satisfied at the time of application for a visa that the visa applicant possesses the present intent to depart the United States at the conclusion of his or her approved activities.  That this intention is subject to change or even likely to change is not a sufficient reason to deny a visa.  Further, the present intent to depart, does not infer the need to return to the country from which they hold a passport.  It means only that they must intend to leave the United States upon completion of studies.

 

This was the prior policy of the State Department from 2005 until it was modified by the Trump administration in 2017, and the history of this policy is discussed in our prior blog State Department Toughens Standard for Assessing a Foreign Student’s Ties With Home Country. It was first articulated in 2005 after student visa applications were being denied in the aftermath of the September 11 terrorist attacks. The new policy that required examining a student’s nonimmigrant intent more leniently led to fewer student visa refusals. The Trump administration guidance was more restrictive, but student visa applications were not being wholesale rejected although students were more vulnerable to rejections as consular officers could not rely on the same broad guidance as before.    Based on the reaffirmation of the relaxed guidance on December 20, 2021, students applying for F or M visas should not be denied just because they do not have strong ties with the home country, and even though the student must still demonstrate a present intent to depart the US, if this intention is subject to change or even likely to change in the future is not reason enough to refuse the visa.

Notwithstanding the change in State Department policy as expressed in the FAM, the USCIS is unfortunately not bound by the FAM. Many children of parents caught in the employment-based second and third preference backlogs who are aging out are forced to change status from H-4 to F-1, and they too should also be able to benefit from this guidance. It would behoove the USCIS to also follow the State Department policy when one applies for a change of status to F-1 in the US. Nonimmigrant children  should not be penalized for not having ties abroad as they have been here for most of their lives and are being forced to change to F-1or M-1 status just because their parents could not timely receive a green card due to the per country limits in the employment preferences.  They also are unable to claim the benefit of the Child Status Protection Act due to erroneous USCIS policy of not allowing use of the Date for Filing in the Visa Bulletin to freeze the age. The fact that they or their parents have have sought permanent residence should not be held against them when they apply for change of status from H-4 to F-1 in the US. The best way for the USCIS to safeguard against denials of change of status applications  is to recognize that there is an inherent dual intent in all nonimmigrant visas, including F-1 and M-1 visas, as established in Matter of Hosseinpour. In that case, the Board of Immigration Appeals recognized in 1975 that the filing of an application for adjustment of status is not necessarily inconsistent with the maintenance of lawful nonimmigrant status. Matter of Hosseinpour is still good law. The Biden administration must continue to use all possible tools and resources to make life easier for nonimmigrants caught in the backlogs until Congress acts. Recognizing dual intent in nonimmigrant visas would help in ameliorating the plight of aged out children desiring to remain in nonimmigrant status in the US.

 

 

 

 

 

Cyrus Mehta

The Denial of Adjustment of Status Applications of Derivative Children Who Turn 21 Before the Final Action Date in the Visa Bulletin Became Current is Inconsistent with the Child Status Protection Act: Can More Lawsuits Reverse Erroneous USCIS and DOS Policy?

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By Cyrus D. Mehta

Several children who filed I-485 applications as derivatives of their Indian born parents under the October 2020 Visa Bulletin are being denied because they turned 21 years before the Final Action Dates became current. The backlogs for India in the employment-based second and third preferences have already caused untold suffering to beneficiaries of approved I-140 petitions who have to wait for over a decade in the never ending backlogs. When the Dates for Filing in the India EB-3 overtook the India EB-2 under the October 2020 Visa Bulletin thousands of applicants filed I-485 applications for themselves, spouses and minor children.   Hence, the denial of the I-485 applications of their children who turn 21 and are not allowed to claim the protection of the Child Status Protection Act through the Dates for Filing exacerbates the problem for these beneficiaries.

The USCIS Policy Manual, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-7,  states that only the Final Action Dates (FAD) protects the age of the child under the Child Status Protection Act (CSPA). The State Department too has the same policy of using the FAD for purposes of freezing the age of the child at 9 FAM 502.1-1(D)(4) .

Using the Dates for Filing (DFF) to protect the age of the child who is nearing the age of 21 is clearly more advantageous – the date becomes available sooner than the FAD – but USCIS policy erroneously maintains that only the FAD can protect the age of the child. Thus, if an I-485 application is filed pursuant to a DFF and the child ages out before the FAD becomes available, the child will no longer be protected despite being permitted to file an I-485 application. The I-485 application will get denied, and if the child no longer has an underlying nonimmigrant status, can be put in great jeopardy through the commencement of removal proceedings, and even if removal proceedings are not commenced, can start accruing unlawful presence, which can trigger the 3 and 10 year bars to reentry. If the child filed the I-485 as a derivative with the parent, the parent can get approved for permanent residence when the FAD becomes available while the child’s application gets denied.

I had first advocated in my blog of September 22, 2018 entitled Recipe for Confusion: USCIS Says Only the Final Action Date Protects a Child’s Age under the Child Status Protection Act that the DOF should protect the age of the child under the CSPA rather than the FAD.

There is a clear legal basis to use the filing date to protect the age of a child under the CSPA:

INA 245(a)(3) only allows for the filing of an I-485 adjustment of status application when “an immigrant visa is immediately available.” Yet, I-485 applications can be filed under the DFF rather than the FAD. As explained, the term “immigrant visa is immediately available” has been interpreted more broadly to encompass dates ahead of when a green card becomes available. Under INA 203(h)(1)(A), which codified Section 3 of the CSPA,  the age of the child under 21 is locked on the “date on which an immigrant visa number becomes available…but only if the [child] has sought to acquire the status of an alien lawfully admitted for permanent residency within one year of such availability.” If the child’s age is over 21 years, it can be subtracted by the amount of time the applicable petition was pending. See INA 203(h)(1)(B).

Under INA 245(a)(3), an I-485 application can only be filed when an “immigrant visa is immediately available.”

Therefore, there is no meaningful difference in the verbiage relating to visas availability – “immigrant visa becomes available” and “immigrant visa is immediately available” under INA 203(h)(1)(A) and INA 245(a)(3) respectively. If an adjustment application can be filed based on a Filing Date pursuant to 245(a)(3), then the interpretation regarding visa availability under 203(h)(1)(A) should be consistent, and so the Filing Date ought to freeze the age of the child, and the child may seek to acquire permanent residency within 1 year of visa availability, which can be either the Filing Date or the Final Action Date.

Unfortunately, USCIS disagrees. It justifies its position through the following convoluted explanation in the policy manual that makes no sense: “If an applicant files based on the Dates for Filing chart prior to the date of visa availability according to the Final Action Dates chart, the applicant still will meet the sought to acquire requirement. However, the applicant’s CSPA age calculation is dependent on visa availability according to the Final Action Dates chart. Applicants who file based on the Dates for Filing chart may not ultimately be eligible for CSPA if their calculated CSPA age based on the Final Action Dates chart is 21 or older.” The USCIS recognizes that the sought to acquire requirement is met when an I-485 is filed under the DFF, but only the FAD can freeze the age! This reasoning is inconsistent. If an applicant is allowed to meet the sought to acquire requirement from the DFF, the age should also similarly freeze on the DFF and not the FAD. Based on USCIS’s inconsistent logic, the I-485s of many children will get denied if they aged out before the FAD becomes available.

Neither the USCIS nor the DOS have considered reversing this policy by allowing CSPA protection based on the DFF. Brent Renison  challenged this policy in  Nakka v. USCIS, details of which can be found on his blog at http://www.entrylaw.com/backlogcspalawsuit.  The plaintiffs in this case not only challenged the CSPA policy but also argued that they were denied equal protection under the Fifth Amendment  on the ground that  children of parents who were born in countries such as India and China that have been impacted by the per country limits have a worse outcome than children of parents born in countries that have not been impacted by the per country limits.  Magistrate Judge Youlee Yim You   found on November 30, 2021 that plaintiffs’ claims that the USCIS Policy Manual and Foreign Affairs Manual dictating the use of the FAD to calculate the CSPA age instead of DOF was not “final agency action” and thus could not be reviewed under the Administrative Procedure Act.   Magistrate Judge You also found that plaintiffs could not claim a violation of equal protection under the U.S. constitution for unequal treatment. The Magistrate Judge’s decision is only a recommendation to the district court judge presiding over the case, who is Judge Simon. The Magistrate Judge’s recommendation also does not pass any judgment on the policy itself and whether it is appropriate to rely on the FAD rather than the DOF. It should also be noted that a Magistrate Judge is not an Article III judge and her findings and recommendations will not be binding leave alone persuasive on another court.

Prior to Nakka v. USCIS, there was another challenge in Lin Liu v. Smith, 515 F. Supp. 3d 193, 199 (S.D.N.Y. 2021) to the policy in the FAM requiring the use of the FAD rather than the DOF to protect the CSPA age. In this case too, Judge Koeltl opined that the policy in the FAM is an interpretive rule rather than a legislative rule. The plaintiffs also claimed that the government unlawfully applied the updated Visa Bulletin to the plaintiff retroactively. Here too the court dismissed the claim because the court held that DOS did not implement a new policy, and therefore there was nothing that could have been applied retroactively to the plaintiff. Judge Koeltl made the following observation:

The Visa Bulletin formerly contained one chart that listed the priority dates that were current for visa number availability. DOS updated the Visa Bulletin to include a second chart showing when applicants could file their applications with the NVC. However, the Final Action Date chart, not the Dates for Filing chart, reflects the information previously listed in the one-chart Visa Bulletin. In other words, the Dates for Filing chart is the new feature in the Visa Bulletin, not the Final Action Date chart. Both before and after the modernization of the Visa Bulletin, DOS used the same information to determine when a visa number became available, namely, when a visa number could be issued legally given the limits set by Congress. While DOS did change the format in which it conveyed this information—posting two charts to the Visa Bulletin rather than one chart—the substantive policy did not change. The newly added Dates for Filing chart reflects useful information for when applicants can begin submitting materials to the NVC, but it does not reflect when visa numbers  are legally available. Therefore, the plaintiff has not pleaded adequately that the defendants changed their policy with respect to tethering visa number availability to when the visa number could be issued lawfully given country and category limits to visa allocation.

Lin Liu v. Smith should not be considered the final word on challenging the USCIS CSPA policy. The plaintiff in this case was a derivative child who was outside the US processing her immigrant visa at the US Consulate. Her father had received a visa under the EB-5 but she had been denied the visa because she was not able to demonstrate that her age had been protected under the DOF and not the FAD. However, Judge Koeltl did not deal with the paradox that is applicable to adjustment applicants in the US. Unlike applicants pursing an immigrant visa at a US consulate, they are allowed to file an adjustment application under the DOF because the USCIS has interpreted the DOF to signify that a visa number is immediately available under INA 245(a)(3). However, the child is then deprived of the ability to demonstrate that the visa is immediately available under INA 203(h)(1)(A) for purposes of protecting his or her age.

The setbacks in Nakka v. USCIS and Lin Liu v. Smith ought not discourage a plaintiff from continuing to challenge the inconsistent USCIS policy of allowing an adjustment application to be filed under the DOF but not allowing CSPA age protection. One  involves the findings and recommendations of a non-Article III magistrate judge, which can be overruled by the district judge presiding over the case. The other decision involves a plaintiff who was applying for an immigrant visa at a US Consulate overseas where the DOF does not have any significance. A child applicant whose I-485 was denied because the age could not be protected when the DOF became current should certainly consider seeking judicial review of the decision under the Administrative Procedures Act. Alternatively, if the child is placed in removal proceedings, the child’s I-485 can potentially be renewed in removal proceedings and he or she should be able to argue that neither the USCIS nor DOS policy regarding the FAD protecting the CSPA age is binding on an Immigration Judge. If the IJ affirms a denial, the decision can be appealed to the Board of Immigration Appeals, and if the BIA reaffirms the IJ’s decision, a petition for review can be filed in a Court of Appeals. Hence, there are two avenues for judicial review – through the APA in federal district court or through a petition for review in a court of appeals – that may be able to reverse the erroneous USCIS policy.