Cyrus D. Mehta & Damira Zhanatova

USCIS New Policy Limiting Adjustment of Status Eligibility Is Bad Policy and Contrary to Law

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By Cyrus D Mehta and Damira Zhanatova*

As previously addressed here, on May 21, 2026, USCIS issued Policy Memorandum PM-602-0199 (“memo”), announcing that filing an I-485 adjustment of status (AOS) application in the United States will be treated as an “extraordinary” form of relief and emphasizing that most individuals seeking permanent residence should instead complete immigrant visa processing abroad through a U.S. consulate. USCIS presents this as a reaffirmation of a “consistent and longstanding approach” and a return to the “original intent” of INA 245, but the practical effect is a sharp break from decades of adjudicatory practice in which eligible applicants routinely adjusted status from within the United States in both employment-based and family-based categories. The policy is expected to have substantial consequences for employers, families, and individuals who have relied on adjustment of status as the central mechanism for obtaining permanent residence.

The standard set forth in this memo is not only an abrupt upheaval of established USCIS policy, but also in contravention of the law. INA 245(a), codified at 8 U.S.C. 1255(a), states only that “Any alien who has been lawfully admitted for temporary status… such status not having been terminated, may apply for adjustment of status…” Although adjustment of status is a discretionary benefit pursuant to INA 245(a), it has never been interpreted as an “extraordinary” form of relief. The characterization of adjustment of status as “extraordinary relief” is not present anywhere in the INA and would surely have been spelled out by Congress if this was, in fact, its intent. USCIS’s interpretation of the word “may” in INA 245(a) to mean “extraordinary” is not only illogical, but contrary to the meaning of the statute and to longstanding USCIS policy.

The memo’s core message is that adjustment of status is not the norm but an exception. USCIS repeatedly characterizes AOS as “a matter of discretion and administrative grace,” citing decisions such as Matter of Blas, where the BIA characterized adjustment as discretionary relief and described it as “extraordinary” because it allows a noncitizen to avoid the ordinary consular visa-issuing process. The memo quotes that adjustment “was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases,” and it points to federal cases like Chen v. Foley for the proposition that adjustment is not meant to replace consular processing. It then extends this characterization to current practice by stating that, as a general matter, nonimmigrants and parolees are expected to depart once the purpose of their admission or parole is fulfilled and that seeking AOS instead “contravenes” Congressional expectations.

Under the memo, remaining in the United States and applying to adjust status rather than departing and consular processing will often be treated as an adverse discretionary factor. USCIS says that, with limited exceptions, the statutory scheme suggests that Congress expects paroled and nonimmigrant entrants to depart and pursue immigrant visas abroad, and it notes that applicants who do not depart typically have violated status, overstayed, or engaged in unauthorized employment. The memo invokes Matter of Blas for the proposition that such adverse factors may need to be offset by “unusual or even outstanding equities,” while explicitly stating that the mere absence of adverse factors is not enough to show such equities. What the memo does not mention, however, is that the BIA’s precedent decision in Matter of Arai is still the law. In Matter of Arai, the Board held that where there are adverse factors weighing against the approval of an adjustment of status application, the applicant may need to offset those factors by showing “unusual or even outstanding equities,” but in cases where there are no adverse factors present, adjustment of status will ordinarily be granted, albeit still as a matter of discretion. In other words, Arai makes clear that the presence of statutory eligibility and the absence of negatives should normally result in a grant. The memo adopts the “unusual or even outstanding equities” language while omitting Arai’s equally important holding that, when there are no adverse factors, adjustment should generally be approved.

This is a significant shift assuming USCIS intends to implement the new policy. Historically, although adjustment under INA 245(a) has always been technically discretionary, USCIS adjudications in employment-based and family-based cases focused on statutory eligibility, inadmissibility, and policy-manual guidance on discretion. Eligible applicants in lawful status, particularly employment-based applicants in H-1B or L-1 status and family-based immediate relatives of U.S. citizens, were not treated as asking for “extraordinary” relief merely because they sought to adjust status rather than depart for consular processing. The new memo aims to reverse that presumption by recasting AOS as an act of “administrative grace” that should generally yield to consular processing.

This interpretation depends heavily on a novel reading of the word “may” in INA 245(a). The statute provides that the status of an eligible alien “may be adjusted by the Secretary, in his discretion.” That language plainly grants discretion, but it does not say that adjustment must be “extraordinary,” rare, or disfavored. Elsewhere in the immigration statute, Congress has explicitly used heightened standards like “clear and convincing evidence” when it wished to impose special burdens or reserve relief for exceptional cases. Indeed, INA 245 itself contains provisions that require “clear and convincing” evidence in specific contexts. If Congress intended adjustment of status in 245(a) to be limited to “extraordinary” circumstances, it knew how to say so directly and did not. Interpreting “may” to mean “extraordinary” has no support in the statutory language of 8 U.S.C. 1255. It is a policy choice layered on top of the statute rather than an interpretation compelled by the statute itself.

The broader structure of section 245 and related provisions confirms that Congress saw adjustment as a central, normal mechanism for those already in the United States. Through 245(i), Congress allowed certain individuals who would otherwise be barred (for example, for unauthorized employment or unlawful presence) to adjust upon payment of a penalty, thereby expanding access to adjustment. Through 245(k), Congress created a targeted cure for certain employment-based applicants with limited status violations of 180  days or less from their last admission. Congress also affirmatively created and preserved dual-intent categories like H-1B and L, which only make sense if pursuing permanent residence, including through adjustment, while in nonimmigrant status is an anticipated and legitimate use of the system. At no point did Congress amend 245(a), 245(i), or 245(k) to say that adjustment in those contexts is “extraordinary” or a disfavored exception. When Congress enacted INA section 204(j) portability through the American Competitiveness in the Twenty-First Century Act (AC21), it also included sections 104(c) and 106(a), specifically to allow H-1B workers pursuing permanent residence to extend status beyond normal limits while their adjustment cases remained pending. Those provisions reflect that adjustment of status for dual intent H-1Bs and Ls is routine and normal, not an extraordinary exception.

The structure of 245 and related AC21 provisions thus shows a legislative intent to use adjustment as a central pathway for those present in the United States who meet detailed eligibility criteria, not as a marginal, almost unattainable form of grace. By insisting that the ordinary, statutorily authorized use of these pathways is now disfavored “extraordinary” relief, the USCIS memo runs directly against what Congress actually did in INA 245 and AC21.

In the wake of the Supreme Court’s Loper Bright decision overturning Chevron deference, this kind of aggressive agency reinterpretation of “may” in INA 245(a) should be especially vulnerable. Under Chevron, agencies received considerable leeway to interpret ambiguous statutes. Post-Chevron, courts will be far more willing to ask whether an agency’s reading is consistent with the statutory text and structure. A court looking at 8 U.S.C. 1255 could reasonably conclude that USCIS’s attempt to convert ordinary discretionary language “may” into a requirement that adjustment be rare, “extraordinary” relief is not a permissible interpretation but a rewriting of the statute. The lack of notice-and-comment rulemaking for a shift this sweeping strengthens an Administrative Procedure Act challenge, because the memo functions more like a substantive rule than a minor interpretive clarification.

The memo is also incomplete in its treatment of prior BIA case law. While it leans on decisions like Matter of Blas to characterize adjustment as an “extraordinary” remedy, it omits reference to BIA decisions that recognize the central role of adjustment for immediate relatives and other core categories. For example, BIA cases dealing with spouses and children of U.S. citizens, such as Matter of Cavazos and Matter of Ibrahim, required a favorable exercise of discretion but also acknowledged that strong equities in those relationships often warranted granting adjustment where statutory eligibility and admissibility were satisfied. These decisions do not treat immediate-relative adjustment as rare “extraordinary” relief but as the expected mechanism Congress intended for uniting U.S. citizens with close family. The memo’s silence about that line of cases underscores how selective its reliance on precedent is.

Beyond the prevailing policy of this administration, adjustment of status under INA 245 is the linchpin of the modern legal immigration system for people already in the United States. For employment-based applicants, AOS permits continued work authorization and stable employment relationships while multi-year immigrant visa backlogs clear, sparing both employers and employees the disruption and risk of consular trips and administrative processing abroad. For family-based applicants, especially those with U.S. citizen spouses and children, adjustment is often the only realistic way to avoid lengthy family separation during the green card process. For noncitizens from countries that have faced travel bans or other entry restrictions, consular processing may be effectively impossible or extremely risky. Those who leave may be subject to a visa refusal under INA 221(f).  In these circumstances, a USCIS policy that treats AOS as disfavored “extraordinary” relief threatens to leave many with no viable path at all. The US approves over 1 million people to become lawful permanents, and about half of them apply through adjustment of status. The policy memo, if implemented will bar over 600,000 people from getting green cards through adjustment of status. 

The memo’s approach is especially severe for applicants in long-backlogged categories who are already living and working lawfully in the United States and raising U.S. citizen children. For these families, a pending adjustment application functions as a lifeline: it anchors work authorization, travel permission, and a basic measure of stability in an otherwise precarious system. By recasting adjustment as a rare exception and steering applicants toward consular processing, the policy threatens to tear that safety net away. The harm is magnified by existing conditions at U.S. consulates, where many posts already struggle with long appointment queues, expanded security screening, and unpredictable administrative processing. Forcing large numbers of cases that historically would have adjusted domestically into these consular pipelines will almost inevitably worsen backlogs and delays, compounding the disruption.

The practical consequences for employers will be substantial. If officers, following the memo, routinely decline to exercise discretion favorably in adjustment cases and instead encourage or effectively require consular processing, employers can expect more frequent international travel disruptions, extended periods during which key employees are stuck abroad awaiting immigrant visas, higher legal and logistical costs, and greater uncertainty in workforce planning and retention. These burdens will sit on top of the already-documented consular constraints, including resource limitations and enhanced social media and security vetting, which have made visa processing timelines increasingly unreliable.

For individuals and families, particularly those in backlogged preference categories who are lawfully employed and caring for U.S. citizen children here, the memo threatens to strip away a critical stabilizing mechanism. A pending adjustment application does more than just move a case forward. It provides employment authorization, travel permission, and a degree of protection that is especially vital for people who cannot safely or realistically return abroad for consular processing because of travel bans, persecution risks, or severe consular delays. Under a regime that treats adjustment as an extraordinary indulgence rather than an integral, congressionally designed component of the system, many families will be forced into impossible choices between prolonged separation and abandoning their pursuit of lawful permanent residence altogether.

Since the memo’s release, there has already been an indication that USCIS is attempting to water down its message in response to immediate backlash, an implicit acknowledgment of how vulnerable the policy is under the statute and how disruptive it is likely to be for employers, workers, and families. A recent report on X describes USCIS officials as suggesting that those with applications that “provide an economic benefit or otherwise are in the national interest” will be permitted to continue on their current adjustment path, while others may be asked to apply for immigrant visas abroad depending on their individualized circumstances. Even this “watering down” is contrary to INA 245(a) and will result in more subjectivity and denials. Creating a vague, extra-statutory category of cases that supposedly serve “economic” or “national interest” goals does not cure the underlying legal defect. It simply adds another layer of unconstrained discretion. In addition to the new policy being driven by animus towards noncitizens, whether they are legal or not, it reflects sheer incompetence given the disruption it will cause to businesses and families.

In sum, INA 245 does not preclude adjustment of status, and the memo does not change the law. USCIS has always had discretion to approve or deny and adjustment of status application. Matter of Arai holds that if there are no adverse factors present, adjustment of status should be granted as a matter of discretion. Applicants may still file adjustment of status applications, and respond to requests for evidence, if issued, regarding whether they merit the favorable exercise of discretion. We need to continue to evaluate how the USCIS will adjudicate currently pending adjustment of status  applications and new applications. If there are arbitrary denials because USCIS has begun to view adjustment of status as  “extraordinary” relief,  applicants and their lawyers can challenge them in federal court. Until then, adjustment of status still remains a viable option as before and should not be foreclosed based on a USCIS memo that unlawfully reinterprets the law. 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus D. Mehta & Damira Zhanatova

The Diplomatic Exception to Birthright Citizenship: Paths to Permanent Residence and Naturalization

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By Cyrus D Mehta and Damira Zhanatova*

One of the most misunderstood areas of U.S. immigration law is the treatment of children born in the United States to foreign diplomats. Most people assume that anyone born on U.S. soil is automatically a U.S. citizen. In reality, the Fourteenth Amendment and federal regulations carve out a narrow exception for children born to certain accredited diplomats. These children are generally not U.S. citizens at birth, but they have a unique, voluntary path to lawful permanent residence (a green card) that is effective from birth and, from there, to U.S. citizenship. When that framework is ignored or mishandled, the consequences can be deeply disruptive.

Birthright citizenship comes from the Fourteenth Amendment, which grants citizenship to those “born or naturalized in the United States, and subject to the jurisdiction thereof.” The phrase “subject to the jurisdiction thereof” is crucial. The Supreme Court has long held that this clause excludes only a few narrow groups, including children of foreign diplomats and children born to enemy forces in hostile occupation. Accredited diplomats are treated under international law as remaining under the jurisdiction of their own governments rather than the United States. The State Department’s Foreign Affairs Manual explains that diplomatic agents are immune from U.S. criminal jurisdiction and, with limited exceptions, from civil and administrative jurisdiction as well. Because they are not fully subject to U.S. law, their U.S.-born children are not considered “subject to the jurisdiction” of the United States and therefore do not acquire citizenship at birth.

This legal framework is implemented through the regulations at 8 CFR 101.3 and 8 CFR 264.2, as well as the corresponding guidance in the USCIS Policy Manual. Under these authorities, a child born in the United States to a foreign diplomatic officer accredited by the Department of State may voluntarily register to be treated as a lawful permanent resident from birth. Because such a child was not born “subject to the jurisdiction of the United States,” they do not gain citizenship under the Fourteenth Amendment, but they can choose to be considered a permanent resident as of their date of birth. This registration is voluntary and requires an application. It is not automatic.

The diplomatic exception itself is narrow and depends on the parents’ exact legal status when the child was born. It covers foreign sovereigns on official visits and accredited diplomatic officials such as ambassadors, ministers, chargés d’affaires, counselors, agents and secretaries of embassies, and attachés and other staff attached to an embassy. It also reaches people with comparable diplomatic status and immunities who are assigned to the United Nations or the Organization of American States, or who otherwise hold comparable status under international agreements. In practice, the key question is whether the parent’s accredited title appeared on the State Department’s Diplomatic List, known as the Blue List, at the time of the child’s birth. Only Blue List officers, who enjoy full diplomatic immunity, fall within the regulatory definition of “foreign diplomatic officer” for this purpose. Not all A or G nonimmigrants are on the Blue List or have full immunity. Many consular officers and staff, for example, have more limited protections and are not on the Blue List. Their U.S.-born children are generally citizens at birth because those parents are treated as subject to U.S. jurisdiction.

For someone who does fall under the diplomatic exception, immigration law provides a clear path. A child born in the United States to a qualifying foreign diplomatic officer is not automatically a citizen, but under 8 CFR 101.3 the child may be “considered a lawful permanent resident at birth” if a record of permanent residence is properly created under 8 CFR 264.2. This status is not conferred automatically. The person must submit a Form I‑485 application to create that record. USCIS guidance explains that this process allows a U.S.-born child of an accredited foreign diplomatic officer to voluntarily register permanent resident status, retroactive to birth.

To do that, the child (or a parent, if the child is under 18) files Form I-485 with the fee, supported by a U.S. birth certificate, a list of all U.S. entries and exits, proof of continuous residence, two passport photos, and official confirmation that at least one parent was a Blue List diplomatic officer at the time of birth, including that parent’s classification and title. The applicant also submits Form I-566 (showing A or G status history) and Form I-508 to waive any diplomatic rights and immunities, since lawful permanent residents must be fully subject to U.S. law. USCIS then confirms the parent’s diplomatic status with the Department of State. If all requirements are met, the application is approved, the person is classified as DS1 (Born Under Diplomatic Status in the United States), and permanent residence is treated as having begun on the date of birth, not the approval date. The adjudication does not involve the usual admissibility analysis or discretionary balancing that apply in many other adjustment cases. Instead, the focus is on whether the specific eligibility criteria in the regulations are met.

From there, the path to citizenship is the same as for other permanent residents. Once USCIS approves the I‑485, the person is an LPR effective from their date of birth. When they satisfy the statutory naturalization requirements, they may file Form N‑400 to become a citizen. Because their LPR date is deemed to be their date of birth, most will already meet the residence‑duration requirement at the time they register, as long as they have maintained the residence and presence required by the naturalization laws.

Despite this clear regulatory framework, the diplomatic exception is often missed for years. Local vital records offices issue standard U.S. birth certificates to everyone born in their jurisdiction, including children of diplomats. Those certificates do not reflect the parents’ diplomatic status, and local staff generally do not investigate whether a parent is a foreign diplomatic representative. On the basis of that birth certificate, many children of diplomats obtain Social Security numbers, U.S. passports, and driver’s licenses, and may even register to vote and be called on for jury duty. To agencies and institutions, these individuals appear indistinguishable from U.S. citizens. Yet if their parents held full Blue List diplomatic status at the time of their birth, they may never have acquired citizenship under the Fourteenth Amendment. This discrepancy often comes to light only when they apply for, or attempt to renew, a U.S. passport, or when a more detailed status review prompts a closer examination of their parents’ diplomatic history and Blue List records.

One widely reported case shows how disruptive this can be. A U.S.-born physician in his early sixties, who had lived in the United States his entire life, practiced internal medicine in Northern Virginia for more than three decades, and paid taxes for years, applied in 2023 to renew his U.S. passport. Instead of a routine renewal, the State Department informed him that his citizenship had been a “mistake.” Officials determined that his father had been an accredited Iranian diplomat at the time of his birth. Because of his father’s diplomatic immunity, they concluded that he was not “subject to the jurisdiction” of the United States at birth and had never lawfully acquired citizenship. In a single letter, he went from being a long‑time U.S. citizen in the eyes of his community to being treated as a non‑citizen and essentially stateless. He could not travel, faced uncertainty about his medical license and ongoing employment, and had to retain legal counsel and begin the process of applying for lawful permanent residence under the diplomatic‑birth framework rather than simply renewing a passport. His case underscored that what the government characterizes as a correction under 8 CFR 101.3 can, in practical terms, overturn a person’s life.

USCIS and the State Department’s position in such cases is not that citizenship is being revoked in the denaturalization sense, but that citizenship never attached under the Constitution and 8 CFR 101.3 because the parents’ Blue List diplomatic status placed the child outside U.S. jurisdiction at birth. The proper remedy, in their view, is not a citizenship adjudication, but registration as a permanent resident through 8 CFR 264.2 and, if desired, later naturalization.

There is anecdotal evidence of this pattern.  In one scenario,  a person is born in the United States while both parents are serving here as foreign diplomats, often at a UN mission or embassy. They grow up entirely in the United States, hold a state birth certificate and a Social Security number, and have always assumed they are U.S. citizens. They never applied for a U.S. passport as a child or young adult. Only when they apply for a first passport in adulthood does the State Department review their parents’ records, discover that one or both were Blue List diplomats with full immunity at the time of birth, and deny the passport with an explanation that the applicant is not a U.S. citizen. In another scenario, a person in the same position receives a U.S. passport as a child and may have that passport renewed multiple times. Agencies never examine the parents’ diplomatic history. The person lives in the United States, works, pays taxes, votes, and even serves on juries, believing in complete good faith that they are a citizen. Then, at some later renewal, the State Department undertakes a more thorough review, confirms that a parent was on the Blue List as a fully immune diplomatic officer at the time of birth, and concludes that citizenship was never lawfully acquired. The renewal is denied, and the individual receives a written determination that they are not a U.S. citizen.

From the applicant’s perspective, it feels as if their citizenship is being annulled. But the government’s legal position is that, because the parents were qualifying foreign diplomats, the person was never a citizen at birth. Earlier passports and other documents were issued in error because agencies did not have or did not consider the parents’ diplomatic status. When the State Department now refuses renewal, it is, in effect, correcting that underlying mistake.

At that point, these individuals are no longer simply applying to obtain or renew a passport. They must rebuild their immigration status through the diplomatic‑birth lawful permanent resident framework. In practice, this usually requires filing Form I‑485 under 8 CFR 264.2, with a thorough evidentiary record documenting their U.S. birth, continuous residence, complete travel history, and their parents’ status on the State Department’s Blue List, together with Forms I‑566 and I‑508. Form I‑485 itself poses a series of detailed, high‑stakes questions, including whether the applicant has ever worked in the United States without authorization, whether they have ever falsely claimed to be a U.S. citizen in any context, and whether they have ever voted in violation of federal, state, or local law. For someone who has genuinely believed for decades that they were a U.S. citizen, and who has lived, worked, voted, and paid taxes on that understanding, answering these questions can be especially daunting. Their responses must be crafted with great care and supported by a clear legal and factual explanation so that USCIS understands this history as the product of a long‑standing, government‑reinforced misunderstanding of status, not as deliberate fraud or willful misrepresentation. Fortunately, in this diplomatic‑birth registration setting, USCIS does not apply the usual inadmissibility grounds the way it does in ordinary adjustment cases. When someone is being formally recognized as a permanent resident from birth, their prior good‑faith use of U.S. documents or belief that they were a citizen is not treated as a basis to find them inadmissible for misrepresentation or a false claim to U.S. citizenship.

Once a person in this situation becomes a permanent resident under the DS1 framework authorized by 8 CFR 101.3 and 8 CFR 264.2, they are deemed to have been permanent residents as of their date of birth. For many such individuals, that means they can apply for citizenship as soon as their permanent residence is registered and any separate naturalization‑specific requirements are satisfied.

Children born in the United States to accredited foreign diplomats occupy a unique and often precarious place in U.S. law. They are not citizens at birth because their parents were not “subject to the jurisdiction” of the United States. In practice, they are frequently treated as citizens for years because they receive standard birth certificates and, in some cases, passports and other documents. Under 8 CFR 101.3 and 8 CFR 264.2, however, they have a special, voluntary path to lawful permanent residence that is backdated to birth, and once registered as LPRs, they can pursue naturalization under the ordinary rules. When these issues are recognized and handled proactively, the legal framework allows children of diplomats to move from a misunderstood status to permanent residence from birth and ultimately to secure U.S. citizenship. When they are discovered late, as in some cases, the disruption can be significant. For anyone born in the United States to parents who served here as diplomats, it is essential to understand the parents’ exact Blue List and immunity status at the time of birth, to document residence and travel history, and to pursue the most appropriate and legally sound path.

Our blog has nothing to do with the Trump administration’s executive order denying birthright citizenship to children born to parents who are either not in the U.S. lawfully or who are in the U.S. temporarily. It has always been acknowledged that children born in the U.S. to diplomats who enjoy immunity are not subject to the jurisdiction of the United States and do not acquire citizenship at the time of their birth in the U.S. Such persons can still register as permanent residents and are able to become U.S. citizens through naturalization. They are in a much better position than what might happen to children born in the U.S. if Trump’s executive order was implemented. That kind of policy could have perverse and far-reaching consequences. Children born in the United States to undocumented parents could be left without any lawful status. Because some countries do not automatically confer citizenship to children born abroad based solely on their parents’ status, some children in this situation could even be born stateless. The U.S.-born children of parents who hold a valid nonimmigrant status, such as H-1B or H-4, would also be impacted. A person must either be admitted into the U.S. in H-4 status or change into H-4 from another nonimmigrant status, so it is unclear how a newborn child could acquire a nonimmigrant status from birth. Parents might be forced to scramble and file immigration applications immediately following a child’s birth to ensure that they are not out of status. Because birth in the United States would no longer be sufficient to confer citizenship, even U.S. citizen parents might be forced to provide exhaustive proof of legal status to ensure that citizenship was also extended to their children. These scenarios are analyzed in greater detail in a prior blog. If Trump’s executive order ever takes effect, although we fervently wish it will never happen, children born of parents in any status should be recognized as permanent residents just like children who are born to foreign diplomats.

The hope is that the Supreme Court, in Trump v. Barbara, will reaffirm the settled understanding of birthright citizenship under the Fourteenth Amendment: that, with the narrow and historically recognized exception for children born to accredited foreign diplomats, children born on U.S. soil are citizens at birth. For those born in the United States to foreign diplomats who later discover that they did not acquire citizenship at birth, existing law already provides a clear and workable remedy: they can register permanent residence as of their date of birth and then pursue naturalization under the ordinary rules. Any effort to narrow birthright citizenship beyond this limited diplomatic exception would raise serious constitutional concerns under the Fourteenth Amendment.

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus D. Mehta & Damira Zhanatova

Navigating the Downgrade of the Indian LL.B in Green Card Sponsorships for Lawyers

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By Cyrus D Mehta and Damira Zhanatova*

Over the last few years, many U.S. employers sponsoring Indian-trained lawyers for permanent residence have begun seeing a new kind of I-140 Request for Evidence (RFE). The problem is not usually the lawyer’s experience, bar admission, or the substantive need for foreign law expertise. Instead, the RFE often focuses almost entirely on how AACRAO EDGE now classifies the Indian Bachelor of Laws (LLB) degree.

Sometime around 2022, EDGE updated its guidance to treat the Indian LLB as comparable in level to a U.S. bachelor’s degree rather than a U.S. first professional law degree (JD). That shift has created serious complications in employment-based second preference (EB-2) cases for foreign lawyers, particularly where earlier credential evaluations had treated the LLB as JD-equivalent.  This blog explains what is happening, why USCIS is issuing RFEs, and how careful framing of the job requirements and the beneficiary’s credentials can still lead to I-140 approval.

The EDGE update matters because USCIS officers often consult EDGE to evaluate foreign educational credentials. In older cases, credential evaluations concluded that a three-year Indian LLB, earned after a prior bachelor’s degree, was equivalent to a U.S. JD. Now, the updated EDGE entry states that the Indian Bachelor of Laws “represents attainment of a level of education comparable to a bachelor’s degree in the United States,” while also noting, in the author comments, that this credential “functions as a first professional degree in law in India”. The LLB degree can be attained after three years or four years of college followed by three years of study in a law college or the LLB is also attained after five years of study in a law college after twelve years of high school. Both the three year and five-year LLB degrees have been downgraded by EDGE as being comparable to a bachelor’s degree in the US.  RFEs have begun quoting only the “bachelor’s-degree-equivalent” language to argue that a beneficiary does not have the equivalent of a U.S. JD or “equivalent professional degree” that the officer believes the position requires, while ignoring the “first professional degree” function in the Indian legal system.

That EDGE language places the Indian LLB in a very different position than certain other Indian professional degrees. For example, EDGE’s entry for the MBBS states: “The Bachelor of Medicine & Bachelor of Surgery represents attainment of a level of education comparable to a first professional degree in medicine in the United States.” In other words, for medicine EDGE is willing to say directly that the foreign degree is comparable to a U.S. first professional degree. For law, it stops short, saying the LLB “represents attainment of a level of education comparable to a bachelor’s degree in the United States” and only that it “functions as a first professional degree in law in India.”

The situation for LLBs from India has remained unsettled as a result. One theoretical approach is to try to extend the “First Professional Degree” language that EDGE applies to Indian credentials in fields like medicine and dentistry and argue that it should likewise cover law. However, given the current LLB wording, that is a weak argument today and unlikely to be persuasive on its own. The qualifiers “functions as” and “in India” signal that EDGE is deliberately not saying that the LLB is comparable to a first professional law degree in the United States.

In the EB-2 context, the core legal standard is set out in the regulations at 8 C.F.R. § 204.5(k). Under that provision, an I-140 can be approved for a “member of the professions holding an advanced degree” if the beneficiary has either an advanced degree (or a foreign equivalent) or a U.S. bachelor’s degree (or a foreign equivalent) followed by at least five years of progressive post-baccalaureate experience in the specialty. The regulation explicitly recognizes that a foreign degree equivalent to a U.S. bachelor’s degree plus five years of progressive experience can satisfy the “advanced degree” requirement, even if the foreign degree itself is not equivalent to a U.S. master’s or JD. 

Agency guidance interpreting 8 C.F.R. § 204.5(k) reiterates that where the foreign education is found to be only equivalent to a U.S. bachelor’s degree, the petitioner may still satisfy the advanced-degree standard by documenting at least five years of progressive post-baccalaureate experience in the specialty occupation. That guidance further explains that “progressive” experience must reflect increasing levels of responsibility, complexity, and judgment over time, rather than simply time served in an unchanging role. 

This is where the EDGE shift collides with long-standing EB-2 standards. When credential evaluators previously described the LLB as JD-equivalent, many EB-2 filings for Indian-trained lawyers were framed as if the beneficiary already held a foreign professional law degree at the U.S. graduate level. With EDGE now labeling the LLB as bachelor’s-level, adjudicators are much more likely to apply the bachelor’s-plus-five-years track laid out in 8 C.F.R. § 204.5(k)(3)(i)(B). That approach is consistent with the regulation’s text, but it requires petitioners to pay close attention to how they document both education and experience.

At the same time, resources like AACRAO EDGE are not binding sources of law. Officers are ought to treat such tools as aids, but to base final determinations on the totality of the evidence and the regulatory standards in 8 C.F.R. § 204.5(k). Where a foreign degree is only at the bachelor’s level, adjudicators must examine whether the record establishes at least five years of progressive post-baccalaureate experience in the specialty, rather than allowing EDGE alone to determine the outcome.

In practice, effective responses to the Indian LLB-related RFEs have emphasized several key points. One key point is the distinction between EDGE’s “level” description and the LLB’s actual professional function. Even if EDGE now describes the LLB as comparable to a U.S. bachelor’s degree, the same entry acknowledges that it functions as a first professional degree in law in India. Petitioners substantiate this by submitting evidence that the LLB is the credential required for enrollment as an advocate with an Indian bar council, and that without it, an individual cannot practice law in that jurisdiction. Enrollment certificates and bar‑council documentation demonstrate that the LLB is, in fact, the professional law qualification in the foreign system, not a generic academic credential.

Another key point is the importance of the certified job requirements. Where the labor certification permits an LLB or an “equivalent professional degree” among the acceptable qualifications, USCIS’s role at the I‑140 stage is to determine whether the beneficiary possesses that foreign professional law degree and any other DOL‑certified minimums, not to retroactively raise the bar to a U.S. JD alone. The friction introduced by the revised EDGE language should be addressed in the EB‑2 analysis under 8 C.F.R. § 204.5(k), rather than by rewriting the Department of Labor’s minimum qualifications after the fact.

Petitioners have also increasingly grounded their arguments in the bachelor’s-plus-five-years prong of 8 C.F.R. § 204.5(k)(3)(i)(B). If USCIS treats the Indian LLB as equivalent to a U.S. bachelor’s degree, the path forward is to demonstrate that the beneficiary has at least five years of progressive post-baccalaureate experience in the relevant legal specialty. Agency guidance interpreting that provision indicates that experience must show advancement in responsibility and complexity, such as moving from junior work to leading complex matters, supervising other professionals, or managing key client relationships, rather than merely accumulating time. Detailed letters of experience from prior employers, with concrete descriptions of duties and progression, are therefore essential.

Many practitioners continue to use credential evaluations that synthesize EDGE and other authorities to explain why an LLB pursued after a prior bachelor’s degree should be understood as a first professional degree in law in terms of structure and purpose. Evaluations point out that, structurally, the combination of a prior bachelor’s degree and a three-year LLB in India is analogous to the U.S. pattern of an undergraduate degree followed by a JD, and that in both systems, the professional law degree is the prerequisite for bar admission. Even if USCIS adheres to EDGE’s bachelor’s-level characterization for level-equivalency purposes, these evaluations help show that the overall educational and professional pathway satisfies the EB-2 advanced-degree standard when combined with the required progressive experience under 8 C.F.R. § 204.5(k). 

The bottom line is that the EDGE “downgrade” of the Indian LLB has changed how many I-140s for Indian-trained lawyers are argued and reviewed, but it has not closed the door on EB-2 classification. By acknowledging the updated EDGE language, highlighting the LLB’s role as a first professional law degree in India and as the gateway to bar admission, aligning job requirements with that foreign professional credential, and deliberately building a record of at least five years of progressive post-baccalaureate experience within the framework of 8 C.F.R. § 204.5(k), employers can continue to obtain I-140 approvals for Indian-trained attorneys despite this new wave of RFEs.

Finally, employers petitioning for H-1B classification on behalf of Indian trained lawyers with an LLB degree should also structure the job requirements as a minimum of a bachelor’s degree rather than a JD degree. The Indian trained lawyer should be able to qualify for H-1B classification as it meets the minimum of a bachelor’s degree to qualify as a specialty occupation. However, many Indian lawyers with LLB degrees have also graduated with a Master of Laws (LLM) degree from a US law school. An Indian lawyer with an LL.M should be able to qualify under EB-2 by virtue of this degree as well as for H-1B classification. Our blog deals more with the lawyer who is being sponsored by a US employer with only an Indian LLB degree and the pitfalls associated with its unfortunate downgrade. 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus D. Mehta & Damira Zhanatova

L-1 Eligibility Without Traditional Employment: Pozzoli, Tessel, and Historic INS Guidance

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By Cyrus D Mehta and Damira Zhanatova*

For many multinational employees, founders and senior executives, especially outside the United States, “employment” is not always a simple paycheck and payroll relationship. They may be compensated through their own entities, hold significant equity, or even draw no traditional salary. Yet U.S. immigration law still requires that an L-1 beneficiary have been “employed” abroad by a qualifying organization for at least one year. 

Over decades, legacy INS and USCIS have answered what “employment” means in the L-1 context in a consistent way: the focus is on the underlying relationship of control and corporate integration, not on formalities like which entity runs payroll, what the local contract is called, or whether the individual receives a conventional salary. Classic decisions such as Matter of Pozzoli, 14 I&N Dec. 569 (Reg. Comm. 1974), and Matter of Tessel, Inc., 17 I&N Dec. 631 (Act. Assoc. Comm. 1981), along with later policy guidance, frame “employment” as the rendering of services under the employer’s power to direct and control, within a genuine corporate structure.

To qualify for L-1 classification under section 101(a)(15)(L) of the Immigration and Nationality Act (INA), a foreign national must have been employed abroad continuously for at least one year in the three years preceding the petition and admission, must have been so employed by a qualifying organization (the same employer or its parent, subsidiary, or affiliate), and must be coming to the United States to work for that organization in either an executive or managerial capacity (L-1A) or in a position involving specialized knowledge (L-1B). Neither the statute nor the regulations provide a bespoke L-1 definition of “employment.” Instead, INS and USCIS have articulated that concept through case law and policy, repeatedly emphasizing who has the power of control over the individual’s work, how integrated the individual is into the organization’s management and operations or its specialized functions, and whether the services are rendered within a bona fide multinational corporate structure.

In Matter of Pozzoli, a U.S. corporation petitioned for a long‑term executive of its Italian subsidiary to come to the United States as an L‑1. The company made clear that during his U.S. assignment, the beneficiary would remain on the Italian subsidiary’s payroll. The district director denied the petition, reasoning that because the Italian affiliate would continue to pay him, he would still be “employed” by the foreign company abroad and not “rendering his services” to the U.S. entity. On certification, the Regional Commissioner reversed. After reviewing the statutory history of section 101(a)(15)(L) and general master‑servant law, INS concluded that the district director’s focus on payroll source was misplaced. The Commissioner found that the petitioner and its Italian subsidiary were part of the same multinational enterprise, that the transfer was “to continue his employment as an executive of the corporation,” and that the purpose of the L‑1 amendments was to facilitate exactly this sort of movement of key personnel. The decision explicitly held that “the question of where the beneficiary’s paycheck may originate is not a relevant factor” in determining eligibility for L‑1 classification, and that payment by the foreign affiliate “does not preclude him from establishing eligibility.” In other words, for L‑1A purposes, the source of salary from a qualified affiliate abroad or from the U.S. entity does not, by itself, decide whether the person is “employed” by a qualifying organization; what matters is the corporate relationship and who actually controls the work.

Matter of Tessel, Inc. dealt with a different but closely related issue: can a person be treated as an “employee” when he is essentially an owner executive and does not draw a traditional salary? Tessel arose in the context of Schedule A, Group IV labor certification, but the analysis was explicitly tied to the L-1 definition of “affiliate” and the nature of qualifying employment abroad.

In Tessel, the beneficiary owned the vast majority of a South African company, served as its unsalaried chairman, and also owned a majority of the U.S. petitioner. The district director and the Regional Commissioner both questioned whether he was truly an employee at all, characterizing him instead as an investor or entrepreneur, and expressing doubt that an employer employee relationship could exist where the petitioner and beneficiary were “one and the same.” The Commissioner rejected those views, relying in part on Matter of M, 8 I&N Dec. 24 (BIA; A.G. 1958), which held that a corporation could file a preference petition for its sole shareholder.

Tessel reaffirmed that a corporation is a separate legal entity from its stockholders and is capable of employing them and petitioning on their behalf. It held that an unsalaried appointed chairman is nonetheless an employee in a managerial or executive position for purposes of Schedule A, Group IV, and that the fact that someone may qualify in another immigrant classification (such as investor) does not preclude simultaneous qualification as an employee. The decision also clarified that companies can be “affiliated” for L-1 purposes where there is a high degree of common ownership and management, either directly or through a third entity. Taken together, Tessel makes two core points that carry directly into the L-1 context: equity ownership does not destroy an employment relationship, and the absence of a conventional salary does not, by itself, mean there is no executive or managerial “employment.”

In 1995, INS distilled these themes in a policy letter that explicitly addressed the meaning of “employed” for L‑1 purposes. In a letter dated August 25, 1995, attorney William Z. Reich wrote to INS about a Canadian citizen who had been refused L‑1 admission under NAFTA because he could not produce a T‑4 wage form, the Canadian equivalent of a W‑2. The individual had been compensated under a contract that was more advantageous for tax purposes, rather than as a salaried employee, and therefore did not have the usual wage documentation. Nonetheless, a letter from the employer’s human resources manager confirmed several years of permanent, full‑time employment; he had no other job; he devoted his full attention to managing the business; and he received direction and assignments from the company’s executives, remaining subject to their control at all times. Mr. Reich argued that, given the nature and character of the relationship, the individual was clearly not an “independent contractor” as defined in the regulations, but rather an employee in substance. In her December 18, 1995 response, Yvonne M. LaFleur, then Chief of the Nonimmigrant Branch at INS, acknowledged that a general regulatory definition of “employment” elsewhere in the rules specifies compensation as one element, but explained that for L-1 purposes the Service “generally equates the rendering of service with employment for the qualifying L-1 period.” The letter cites both Tessel and Pozzoli, emphasizing that a non-salaried chairman can qualify as an L-1 nonimmigrant, and that the “power of control over the employee’s activity, rather than salary, is the essential element in the employment relationship.” That is a direct echo of the master servant analysis cited in Pozzoli: the truly “essential element” is the right to control how, when, and for whose benefit the work is performed, with the power to appoint and dismiss as strong evidence of that relationship, and the payment of wages “the least important factor”. This correspondence is reproduced at 73 Interpreter Releases 49 (Jan. 10, 1996).

Taken together, Pozzoli, Tessel, and the LaFleur letter all point in the same direction. For L-1 purposes, “employment” is primarily a question of whether the individual renders services under the direction and control of a qualifying organization. The existence of salary, the exact form of compensation, and the source of payroll are secondary considerations. Ownership, even majority or sole ownership, does not prevent a corporation from being the individual’s employer if the corporate entity is real and exercises governance authority over the executive role. Formal gaps in local payroll documentation, such as the absence of a T-4 or W-2, do not, by themselves, negate a qualifying employment relationship when the factual record shows full time, controlled service to the company.

These long-standing principles are increasingly important as global employers use local structures that do not resemble a U.S. W-2 job. Brazil provides a good illustration. In Brazil, the traditional employment relationship is governed by the Consolidation of Labor Laws (Consolidação das Leis do Trabalho, or CLT), Decree‑Law No. 5,452/1943. A CLT relationship is the classic labor‑law employment bond that brings with it a bundle of statutory wage protections, benefits, and social charges. In addition to this traditional CLT employment, however, Brazilian law recognizes several other legitimate forms for structuring professional activities. These include corporate relationships, specialized service arrangements, and the exercise of executive functions formalized through civil or commercial contracts. Under the widely used “Pessoa Jurídica” (PJ) model, for example, a professional provides services through a legal entity that he or she owns. That entity invoices the company, and compensation flows through the PJ rather than directly through a CLT employment contract. PJ contracts typically include boilerplate clauses disavowing a CLT “employment bond” or “subordination” and assigning labor and social security obligations to the PJ entity. These clauses are designed to allocate responsibilities under Brazilian labor and tax law and to make clear that the relationship is not governed by CLT, but they do not automatically mean that the individual is economically independent from, or external to, the company’s internal management.

In some L‑1A scenarios, a Brazilian‑based executive may, for more than a year within the three‑year lookback period, serve as the top‑level executive of a foreign parent company while being compensated, consistent with local practice, through a wholly owned PJ, rather than under a CLT bond. On the surface, standard PJ contract language disavowing a CLT bond or “subordination” can make the relationship look like independent contractor work, even when, in substance, the executive functions as an internal leader of the foreign enterprise. 

Under long-standing INS/USCIS guidance, the proper way to analyze such a structure is not to stop at the contract label, but to examine the underlying master-servant relationship. Corporate documents, shareholder resolutions, and other evidence can show that the foreign parent has in fact selected and engaged the individual as its principal executive; defined that person’s duties and strategic objectives; approved and adjusted compensation; retained the power, through corporate bodies, to appoint, supervise, and remove the executive; and relied on full-time, exclusive service integrated into its governance and reporting structure. A legal opinion from Brazilian counsel can further explain that the PJ form and CLT disclaimers reflect a choice among different lawful modes of engagement under Brazilian law, and do not necessarily mean that the individual operates as an external, multi-client contractor. In many such cases, the PJ itself has no other clients and functions solely as a billing and tax vehicle for executive services rendered inside the parent’s corporate structure.

Viewed through the framework of Matter of Pozzoli, Matter of Tessel, and the LaFleur letter, the legal analysis is straightforward. As Pozzoli makes clear, the origin or routing of the paycheck does not determine who “employs” the executive for L-1A purposes; what matters is which qualifying organization actually directs and benefits from the work. Tessel confirms that equity ownership and the absence of a traditional, local-law salary do not prevent a corporation from being the individual’s employer, because the corporation is a separate legal person capable of employing its owners when it exercises genuine governance authority over their roles. And consistent with the LaFleur letter, the fact that compensation is paid under a contract for tax reasons does not disqualify the arrangement, because the Service “generally equates the rendering of service with employment for the qualifying L-1 period” when the master-servant control relationship is clearly documented.

These Brazilian-style PJ situations are simply one illustration of a broader rule. For L-1 purposes, “employment” is not a rigid label tied to local labor codes, salary forms, or who prints the paycheck. Even in the U.S., the use of a Professional Employer Organization (PEO) is prevalent so that companies can access better benefits. A PEO is a firm that provides comprehensive HR outsourcing services to small and medium-sized businesses through a co-employment agreement where the employee is put on the payroll of the PEO.  The PEO can obtain better insurance premiums because it would have more bargaining power than a single company.   It is a functional concept anchored in control and corporate integration, rather than in any single compensation form or local labor‑law label. Whether the petition is for an L‑1A executive or manager or an L‑1B specialized knowledge employee, the core question is the same: has the foreign national, in fact, rendered services abroad for at least one continuous year within the required three‑year window to a qualifying organization that directed and controlled the work within a genuine multinational structure?

In jurisdictions like Brazil, where CLT employment is only one of several legitimate ways to structure professional activities and where executives or specialists often serve under PJ or other civil/commercial arrangements, what matters for L‑1 is not whether the relationship is labeled CLT, PJ, contractor, or something else, but whether the foreign entity truly functions as the employer in the master‑servant sense: selecting the individual, defining duties and objectives, supervising performance, and retaining the power to remove the person from the role. If those elements are present, and all other statutory and regulatory criteria are met, the absence of a CLT bond, a traditional salary, or a familiar payroll form should not, by itself, defeat the one‑year foreign employment requirement for L‑1 category.

[We are grateful to our late friend and colleague, William Reich, who was never afraid to push the envelope on behalf of his clients in seeking fair and favorable interpretations from the government.]

 

* Damira Zhanatova is an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Blanche v. Lau: Will the Supreme Court Degrade the Rights of Lawful Permanent Residents?

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By Cyrus D. Mehta and Kaitlyn Box*

On April 23, 2025, the Supreme Court heard oral argument in Blanche v. Lau, a case that confronts the issue of whether the government, in seeking to remove a lawful permanent resident (LPR) who was paroled into the United States on the basis that he committed a crime involving moral turpitude (CIMT) under INA 212(a)(2) must prove that it possessed clear and convincing evidence of the crime at the time of the LPR’s most recent reentry. Mr. Lau, an LPR who had traveled outside the U.S. with a pending charge of third-degree trademark counterfeiting in New Jersey before being paroled into the country in 2012, argued that there is a presumption LPRs are already admitted when they reenter the U.S. after travel abroad. The government, on the other hand, asserted that Lau falls within an exemption to this presumption because he had already committed a crime at the time of his reentry, although he had not yet been convicted.  Under INA 101(a)(13)(C) an LPR shall not be regarded as seeking admission in the US if they have inter alia committed an offense identified in section 212(a)(2), which includes crimes involving moral turpitude or drug offenses. 

The conservative justices seemed to largely agree with the government’s position, although Justice Jackson expressed concern about the implications of this position, stating: 

“And my concern is that I could actually see a world in which [bad-faith paroling] would be in the government’s interest. And it’s a situation in which people who are lawful permanent residents who have green cards leave the country and, when they return, based on a suspicion or even an indictment that’s in the government’s control, they flag this person as being returning under parole as opposed to lawful admission. They take this person’s green card, which then makes it much, much harder for this person to actually live and work and continue in their life here in the United States, perhaps so much so that this person self-deports because it’s really, really difficult without a green card to operate in this country. So you could imagine a world in which a government that really is not interested in immigration and having immigrants here, living and working, could use this kind of thing to inappropriately parole people rather than admit them so that it depresses immigration.”

If the Supreme Court sides with the government in Blanche v. Lau and decides that an LPR who is accused of committing a crime and paroled into the U.S. has not already been admitted, this power could be abused by the Trump administration, which has already evidenced an intent to erode the rights of LPRs. This is exactly the sort of abuse that Justice Jackson appeared troubled by in her colloquy during oral argument. By taking the position that an LPR is seeking admission rather than arguing that the individual is deportable, the government can more easily pursue removal. In order to remove an LPR who was admitted, the government would have to show that the individual had been “convicted of a crime involving moral turpitude committed within five years” of the admission. The government must have clear and convincing evidence in order to determine that an LPR is seeking admission after having committed a crime under INA 212(a)(2), and that burden should only be met if the LPR has actually been convicted of the crime involving moral turpitude, or has admitted to the elements of the crime. 

An LPR can voluntarily admit to the commission of a crime if he or she chooses to, but such an admission needs to meet rigid criteria. The BIA has set forth the following requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K–, 7 I&N Dec. 594 (BIA 1957).  The Board of Immigration Appeals also held in Matter of Guevara, 20 I&N Dec.238 (1990) that an alien’s silence alone does not provide sufficient evidence under the  standard in Woodby v. INS, which held that the burden was on the government to prove by “clear, unequivocal, and convincing evidence” that the LPR should be deported from the United States. This has also been more recently affirmed by the Board of Immigration Appeals in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). 

As the late Justice Ginsburg observed in Vartelas v. Holder, 566 U.S. 257 (2012), “[o]rdinarily to determine whether there is clear and convincing evidence that an alien has committed a qualifying crime, the immigration officer at the border would check the alien’s record of conviction. He would not call into session a piepowder court to entertain a plea or conduct a trial.” Piepowder, or “dusty feet courts”, as Justice Ginsburg’s decision notes, were temporary mercantile courts quickly set up to hear commercial disputes at trade fairs in medieval Europe while the merchants’ feet were still dusty. 

Justice Ginsburg’s observation appears to restrict a CBP officer’s ability to try to suspect that an LPR has committed a crime rather than been convicted or one or admitted to the elements of the crime. The CBP officer should also not be able to extract a confession.  The U.S. Court of Appeals for the 2nd Circuit’s holding in Blanche v. Lau was much more in line with Justice Ginsburg’s reasoning. The 2nd Circuit held that the INA does not permit “DHS to treat a returning LPR as an applicant for admission based on the suspicion that a CIMT has been committed, leaving open whether this suspicion will ever be confirmed by a subsequent conviction”. The 2nd Circuit reasoned that the “INA is unmistakably clear that the default presumption is that LPRs will not be treated as seeking admission unless certain threshold determinations have been made…Allowing DHS to defer such a determination and take a wait-and-see approach contingent on whether a conviction eventually materializes effectively nullifies this clear command.” Unlike the merchants of old, a CBP officer cannot set up a piepowder court at the airport to bludgeon a weary LPR traveler into admitting to having committed the elements of a CIMT absent clear and convincing evidence. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta & Kaitlyn Box*

H-1B Enforcement While Working Abroad: Why Are CBP Officers in Abu Dhabi Scrutinizing LCAs?

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By Cyrus D. Mehta and Kaitlyn Box*

Recently, reports have surfaced of issues with U.S. Customs and Border Protection (CBP) Preclearance in Abu Dhabi – namely, that beneficiaries who had been outside the United States were asked questions about whether the conditions described in the Labor Conditions Application (LCA) had been complied with while they were working abroad. The LCA framework and DOL’s protective purpose are defined around H-1B employment in the U.S., which makes CBP’s apparent focus on foreign remote-work patterns somewhat unusual from a traditional LCA-enforcement perspective.

 The American Immigration Lawyers Association solicited examples of these problems in March 2026, and an article from the American Bazaar, despite misstating some information, recounts the plight of an individual who passed through Abu Dhabi preclearance and informed officers that “she had remained in India for close to two months and had worked part time during that period while using her Paid Time Off (PTO)…Officers allegedly determined that she had spent too long outside the United States and questioned the fact that she continued to receive pay from her U.S. employer while working remotely from India. Her visa stamp was reportedly marked ‘Cancelled and Withdrawn,’ and she was told she would need to apply again.” Gnanamookan Senthurjothi, a U.S. immigration lawyer, reported instances of “ increased scrutiny of H‑1B travelers transiting Abu Dhabi’s U.S. preclearance facility, especially on Etihad flights, where individuals who have worked remotely abroad for 2+ months are facing intensive questioning and, in some cases, visa revocation” in a recent LinkedIn post. 

Although it is hoped that these reports are aberrations that CBP will prevent from recurring in future, these reports are troubling. The conditions stated on an LCA, such as a beneficiary’s salary and worksite, are typically construed as applying only to employment within the U.S., as U.S. immigration laws cannot generally regulate employment that takes place abroad.  Because H-1B is a U.S. admission/status classification, a foreign national who is physically outside the U.S. is not ‘in’ H-1B status during that time and, as such, is not required to hold H-1B status to perform services while abroad for a U.S. employer. The immigration consequences arise when that individual seeks re-admission in H-1B classification and CBP or USCIS evaluates whether they have complied with, or will comply with, the terms of the approved petition and LCA.

 The situation in Abu Dhabi raises interesting questions, however, regarding the extent to which activities abroad can impact an employer’s LCA compliance. 

INA 212(n)(2)(C)(vii) specifies that an employer must continue to pay a full-time H-1B worker the wages indicated in the LCA even during a period of “nonproductive period”, if the nonproductive status is “due to a decision by the employer (based on factors such as lack of work)”. This provision prohibits “benching”, or a scenario in which an employer stops paying the required wages to an H-1B worker during periods in which business is slow and there is insufficient work for the individual. Given the types of questions allegedly being raised by officers at Abu Dhabi preclearance, the Department of Labor could hypothetically find that an employer had engaged in “benching” and hold the company liable for back wages if it had not terminated an employee’s H-1B employment in the U.S., and was not paying her the wages listed on the LCA while she worked abroad.

DOL enforcement practice and published decisions tend to focus on underpayment and benching during periods of H-1B employment in the U.S. labor market. There is limited clear authority on how DOL treats extended periods of foreign work where the employer maintains the H-1B petition but modifies pay or duties while the worker is abroad.  Clearly, the US cannot sanction an employer for failing to post notice of the employer’s LCA obligations at a work location abroad. The INA and DOL rules all contemplate compliance of an employer’s LCA obligations when the worker is employed in the US and not at a foreign worksite.

 Ideally, to completely avoid benching liability,  it would be prudent if the employer withdraws the petition while the H-1B worker is employed remotely abroad for long stretches and not paid the required wage. However, this may no longer practical as the employer may have to pay the $100,000 fee under Trump’s H-1B Proclamation when it refiles an H-1B petition on behalf of an overseas H-1B worker to bring them back to the US. Moreover, many remote workers are only working overseas for their US employers because they are waiting for visa appointments or have been subject to “administrative processing” at US posts. Withdrawing the H-1B in these situations would be counterintuitive. 

Due to the war in the Middle East, Abu Dhabi preclearance is not currently operational. CBP has withdrawn officers, who are currently stateside. Travelers routed through Abu Dhabi will be inspected by CBP in the U.S. Hence, the issue is moot at this time, but it may raise its ugly head again when Abu Dhabi preclearance is restored, or if the idea of going after H-1B workers employed overseas catches on with CBP at other ports of entry. Ultimately, CBP should refrain from enforcing the LCA when the worker is employed abroad as there is scant authority for it to do so and it is also impossible to enforce LCA obligations at foreign work locations. CBP can still ask questions about foreign work and pay when those facts bear on whether the underlying H-1B classification remains valid, but it should not be denying admission to H-1B workers because the employer ostensibly did not meet its LCA obligations when the worker was employed abroad. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Beyond Future Newborns: How Upholding Trump’s Birthright Citizenship Order Could Jeopardize Tens of Millions of Existing Americans

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By Cyrus D. Mehta and Kaitlyn Box*

On April 1, the Supreme Court heard oral argument in Trump v. Barbara, a case which raises a 14th Amendment challenge to President Trump’s executive order restring birthright citizenship. The executive order, which was discussed in detail in a prior blog, interprets the language “subject to the jurisdiction thereof” in the Fourteenth Amendment to mean that U.S. citizenship does not extend to individuals born in the United States:

  1. when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth,
  2. or when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.

The plaintiffs, mostly noncitizen parents of children born in the United States, argued that the executive order violates the 14th Amendment and 8 U.S.C. § 1401(a), which guarantee those born in the United States citizenship.

The Supreme Court appeared largely unpersuaded by the Trump Administration’s arguments in support of the executive order. In her colloquy, Justice Amy Coney Barrett noted the potential for “messy” outcomes in the implementation of the executive order.  Referring to foundlings, or abandoned children born to parents of unknown identity, Justice Barrett said:

“The thing about this is, and then you have to adjudicate, if you’re looking at parents, and if you’re looking at parents’ domicile, then you have to adjudicate both residents and intent to stay. What if you don’t know who the parents are?… “How would it work? How would you adjudicate these cases? You’re not gonna know at the time of birth, for some people, whether they have the intent to stay or not…Including U.S. citizens, by the way. I mean, what if you have someone who is living in Norway with their husband and family, but is still a U.S. citizen, comes home and has her child here and goes back? How do we know whether the child is a U.S. citizen because the parent didn’t have an intent to stay?”

If implemented, the executive order could have perverse and far-reaching consequences. Children born in the United States to undocumented parents would be left without legal status. Because some countries do not automatically confer citizenship to children born abroad based on their parents’ status, some children in this situation could even be born stateless. The U.S. born children of parents who hold a valid nonimmigrant status, such as H-1B and H-4, will also be impacted. One needs to be admitted into the U.S. in H-4 status or change from another nonimmigrant status into H-4 status, so it is unclear how a child could acquire a nonimmigrant status from birth. Parents might be forced to scramble and file immigration applications immediately following a child’s birth to ensure that they are not out of status. Because birth in the United States would no longer be sufficient to confer citizenship, even U.S. citizen parents might be forced to provide exhaustive proof of legal status to ensure that citizenship was also extended to their children. These scenarios are analyzed in greater detail in a prior blog.

Moreover, there is a potential for the executive order to eventually be expanded and applied retroactively as well. Justice Sotomayor noted that when the Supreme Court ruled that “Indians could not become citizens”, the federal government undertook efforts to de-naturalize even individuals who had already become citizens. D. John Sauer, the lawyer for the Trump administration, emphasized that the administration sought only to apply the order prospectively, but this position does not allay concerns that the executive order could not be applied retroactively in future. Given that millions of Americans are the children of immigrants, any efforts to retroactively apply the order would have unthinkable consequences. Indeed, many supporters of the Trump administration might find their US citizenship being thrown into question if their parent was not lawfully present in the US or were on a temporary visa.  And if these concepts did not exist before the mid-20th century, Americans would have to prove that their parents or their ancestors were domiciled in the US, as D. John Sauer argued for the government was the intent of the Framers of the Fourteenth Amendment.

If Trump’s Executive Order is upheld it not just creates a permanent subclass of people born in the US in the future but the destabilization of citizenship itself across generations. If the constitutional meaning of citizenship can be redefined after 150 years, what happens to all citizenship claims derived through parents and grandparents and even beyond who relied on United States v.  Wong Kim Ark? It creates a multigenerational problem. If X was never a citizen at birth, then was X able to transmit citizenship to Y?

Trump and his supporters aim for mass deportations. This fantasy would be realized well beyond their wildest dreams if they too get deported through the destabilization of citizenship across generations!

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta & Kaitlyn Box*

New Fields in Form  I-129 for H-1B Classification Need  to Sync with Appropriate Wage Levels in the Lottery and Labor Condition Application

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By Cyrus D. Mehta and Kaitlyn Box*

On February 27, 2026, USCIS published a new edition of Form I-129, which it will accept exclusively beginning April 1, 2026. The new edition of Form I-129 introduces several new fields in the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement. Question 7 through 11 on page 21 of the supplement request the following specific information: 

  • Level of education required for the position
  • Field(s) of study that would qualify someone for the position
  • Years of experience required in order to qualify for the position
  • Special skills required in order to qualify for the position
  • Number of people the beneficiary will supervise, and their position titles

Additionally, question 2 on section 3, page 22 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement requests that the appropriate wage level, I through IV, be selected for H-1B cap petitions. 

Many of these new fields appear designed to comply with the December 2025 Department of Homeland Security final rule that introduced a weighted selection process for the H-1B lottery.  The H-1B registration period for FY 2027 runs from March 4, 2026 to March 19, 2026, at 12 pm ET. 

Under the new system, discussed in detail in a prior blog, instead of a random lottery, registrations for unique beneficiaries or petitions will be assigned to the relevant Occupational Employment and Wage Statistics wage level and entered into the selection pool as follows: (1) registrations for unique beneficiaries or petitions assigned wage level IV will be entered into the selection pool four times; (2) those assigned wage level III will be entered into the selection pool three times; (3) those assigned wage level II would be entered into the selection pool two times; and (4) those assigned wage level I will be entered into the selection pool one time. Pursuant to the new rule, the H-1B cap electronic registration form requires employers to indicate what wage level will be offered to the beneficiary. Although USCIS has not promulgated guidance specifying whether the Labor Conditions Application (LCA) and H-1B petition filed on behalf of a selected beneficiary must match the wage level indicated at the time of registration, it is likely a best practice to ensure that both are in sync. 

The weighted selection rule will incentivize employers to select the highest possible wage level in order to increase the candidate’s likelihood of being selected in the lottery. However, complications could arise when the H-1B petition is filed. If the beneficiary’s job duties appear sophisticated or high level, but the employer is only offering a level I wage, which generally relates to an entry-level role, USCIS can challenge the appropriateness of the wage level. Similarly, USCIS could question the appropriateness of a level IV wage if the employer is offering a higher wage to an employee in order to increase the chances of selection in the H-1B lottery. However, the DHS final rule makes clear that “…if an employer values a beneficiary’s work and the unique qualities the beneficiary possesses, the employer could offer a higher wage than required by the prevailing wage level to reflect that value.” Thus, an employer should not be precluded from paying a level IV wage even to an entry-level worker if that employee’s unique skills, performance, or educational background justify offering a higher wage. 

However, even if the employer as selected a level IV wage in the H-1B lottery,  at the time of preparing the Labor Condition Application (“LCA”), the employer will need to assign the appropriate wage level based on the DOL 2009 prevailing wage guidance. Under the DOL prevailing wage guidance, an entry level employee on first brush may  qualify under level I wage or level II wage rather than Level  IV wage. The employer, on the other hand,  may be able to justify a level IV wage even if an employee has no prior or little experience based on an advanced degree and possessing other specialized skills, qualifications and certifications/licenses that are essential for performing the duties of the position. The level IV wage can further be justified based on the actual wage that is paid to similarly situated workers. Under DOL rule, the employer must pay the higher of the prevailing or actual wage. So even if the prevailing wage would be a level 1 wage but the actual wage is at level 4 wage, the employer must pay the higher level 4 wage. 

Additional complexities can arise once the employer begins the PERM labor certification process on behalf of an employee currently in H-1B status. An employer might be offering an employee a level I or II wage for the present H-1B position, but could have higher requirements for the PERM and I-140 position. For a PERM position that requires a bachelor’s degree and 5 years of experience, however, the DOL is likely to assign a level IV wage in the Prevailing Wage Determination. Although there could appear to be an inconsistency between the H-1B and PERM wage levels, the role described in the PERM is a future role. For beneficiaries from backlogged countries like India and China, this position may only materialize after 10 years or more when they become eligible for adjustment of status. Thus, because the employer is required to project the requirements and salary for a role to be performed many years in the future, it is not inherently problematic for an employer’s requirements, and, therefore, the corresponding wage level, to be substantially higher for a PERM position than for the present H-1B role.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Trump Administration Erroneously Freezes Child’s Age under the Child Status Protection Act Upon Approval of Visa Petition  Rendering It Virtually Ineffective

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By Cyrus D. Mehta and Kaitlyn Box*

In early 2023, under the Biden administration, USCIS had reversed its longstanding policy of recognizing only the Final Action Dates (FAD) in the State Department Visa bulletin as protecting a child’s age under the Child Status Protection Act (CSPA), and agreed to use the Dates for Filing (DFF) to protect the age of the child. In 2025, however, under the Trump administration USCIS again changed course and reverted to its prior policy, stating in an August 8, 2025 Policy Alert that: 

… “a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin. The new guidance applies to requests filed on or after August 15, 2025. We will apply the Feb. 14, 2023, policy of CSPA age calculation to adjustment of status applications pending with USCIS before August 15, 2025, as these aliens may have relied on that policy when they filed.    

We discussed this policy change at length in a prior blog post. 

Now, USCIS seems to have made another CSPA-related policy change in the August 8, 2025 update to the USCIS Policy Manual without any public notice. Immigration lawyers are increasingly seeing denials of I-485 applications for derivative children that were filed concurrently with an I-140 petition under the Dates for Filing in the Visa Bulletin if the child was over 21 by the time that the I-140 petition was later approved. USCIS’ current policy is  that a visa becomes available on the later of:

  • The date the petition was approved; or
  • The first day of the month of the Department of State Visa Bulletin that indicates that a visa is available in the Final Action Dates chart.

Nothing in the plain text of INA 203(h)(1)(A), however, states that the I-140 petition must be approved in order for a child’s age to freeze for CSPA purposes. The same logic also applies to I-130 petitions filed concurrently with I-485 applications.  This provision states only that a child’s age is protected for CSPA purposes when: 

“the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability…”. 

Additionally, INA 203(h)(1)(B) clarifies that a child’s CSPA age should be reduced by “the number of days in the period during which the applicable petition described in paragraph (2) was pending”.

Because INA 245(a)(3) provides that an applicant is eligible for adjustment of status if “… an immigrant visa is immediately available to him at the time his application is filed”, a visa number should be available at the time that USCIS accepts an I-485 application for processing, even if it is based on a concurrently filed I-130 or I-140 petition and or the Dates for Filing in the Visa Bulletin prior to August 15, 2025. After August 15, 2025, a visa number should be available if it is based on a concurrently filed I-130 or I-140 and I-485 application based on the Final Action Dates. This interpretation is consistent with the purpose of the CSPA, which is to adjust an applicant’s age in circumstances where they are not able to file an I-485 until after reaching the biological age of 21. Invoking CSPA is unnecessary when a derivative applicant has been able to file her I-485 before turning 21. 

Similarly, he plain language of INA 203(h)(1)(A) requires only that immigrant visa number is available without making reference to the approval status of the underlying I-140 petition. The USCIS has historically recognized that the child’s age freezes when there is a concurrently filed visa petition and adjustment of status application. The visa is available at the time of the concurrent filing and so it made sense to freeze the age of the child consistent with INA 203(h)(1)(A). We saw the CSPA being applied to concurrent filings during the July 2007 visa bulletin period even though there was retrogression from August 2007 onwards. Another  good example was the April 2012 Visa Bulletin, when the EB-2 cut-off dates for India and China were May 1, 2010. In the very next May 2012 Visa Bulletin  a month later, the EB-2 cut-off dates for India and China retrogressed to August 15, 2007. Still, the USCIS considered the child’s age frozen even though there was retrogression after April 2012.

USCIS’ new interpretation will have devastating impacts for children whose ages are no longer protected under the CSPA, and for their families. Under the new interpretation, a concurrently filed I-140 petition and I-485 application on October 20,  2020 under the India employment based third preference (EB-3) with a  priority date of July 1, 2013 might only freeze the age of the child on October 1, 2025 even if the I-140 petition got approved on January 10, 2022. If the child was 20 years and six months on October 20, 2020, the child’s age ought to have frozen on that date before it reached 21 years rather than on October 2025 when the child would be well past 21 years of age.  

 In the current climate, erroneous denials of I-485 applications stemming from this interpretation could result in derivative children being placed into removal proceedings. It bears consideration, however, that USCIS’ interpretation can potentially be challenged under the Administrative Procedure Act, arguing that the policy change was arbitrary and capricious because USCIS provide no notice or explanation for its reinterpretation of the statute. Pursuant to Reyes v. USCIS, a federal court has jurisdiction to hear a statutory interpretation challenge under the APA, such as the issue of visa availability under the CSPA, at least in the Fourth Circuit. Moreover, the Supreme Court in Loper Bright Enters. v. Raimondo, has made clear that courts must interpret statutes independently and need not defer to an agency’s interpretation, providing further basis for contesting USCIS’ new policy. 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta & Kaitlyn Box*

Board of Immigration Appeals Limits Scope of Entry Fraud Waiver under INA 237(a)(1)(H) 

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By Cyrus D. Mehta and Kaitlyn Box*

On February 26, 2026, in Matter of Fortjoe, the BIA held that “’admission’ in section 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)(1)(H), refers only to an alien’s lawful entry into the United States after inspection and authorization by an immigration officer. Mr. Fortjoe was a citizen of Ghana who was admitted to the United States as a nonimmigrant in 1995, and later entered into a fraudulent marriage with a U.S. citizen. In a 2007 visa interview, he failed to disclose that he had fathered two children by another woman during his marriage to the U.S. citizen spouse. In 2012 he applied for naturalization and disclosed the two children born outside of his marriage. USCIS denied his naturalization application and DHS initiated removal proceedings pursuant to INA 237(a)(1)(A), which renders a noncitizen “who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time” removable. Mr. Fortjoe sought a waiver of inadmissibility pursuant to INA 237(a)(1)(H), which is available to noncitizens who are in removal proceedings, are the spouse, parent, or child of a U.S. citizen or LPR, and are admissible to the U.S. aside from the fraud or misrepresentation, but the Immigration Judge denied the waiver on discretionary grounds. 

In 2015, in Matter of Agour, the BIA had previously held that “adjustment of status constitutes an ‘admission’ for purposes of determining an alien’s eligibility to apply for a waiver” under INA 237(a)(1)(H). In Matter of Fortjoe, the BIA overruled Matter of Agour. The BIA reasoned that “the plain and natural meaning of the language of section 237(a)(1)(H) limits the waiver to fraud or misrepresentation at the time of an alien’s lawful entry into the United States after inspection and authorization by an immigration officer.” The BIA also examined the statutory history of this provision, finding that Congress’ “change in language from ‘entry’ to  ‘admission’ appears to have been merely a conforming amendment, rather than one intended to have a substantive effect”, and that Congress did not make a corresponding change to INA 237(a)(1)(A), which renders noncitizens who were inadmissible “at the time of entry or adjustment of status” removable. 

In overruling Matter of Agour, the BIA relied on Loper Bright v. Raimondo, analyzed in prior blogs, in which the Supreme Court abolished the long-standing Chevron doctrine, under which, courts were required to defer to the government agency’s interpretation of an ambiguous statute. Loper Bright, according to the BIA, holds that “reexamination of a precedent’s reasoning may be warranted, notwithstanding the doctrine of stare decisis”. The BIA’s decision in Fortjoe illustrates that Loper Bright, which may serve as a tool for challenging Trump administration immigration policies, can also be relied upon by the agency to overturn its own precedent that is favorable to noncitizens. However, the BIA’s decision is itself an agency interpretation that is subject to being overturned under Loper Bright, as was recently illustrated when a federal court in California  overruled the BIA’s decision in Matter of Yajure Hurtado, which had held that a noncitizen who entered the US without inspection is not eligible for bond under INA 235(b)(2)(A). It may not be appropriate for the BIA to rely on Loper Bright,  only a federal court ought to be able to rely on Loper Bright and not pay deference to a BIA decision. 

If the BIA decision in Matter of Agour does not get reversed in the Sixth Circuit Court of Appeals, it would greatly limit relief under INA 237(a)(1)(H) to  those who are inspected and admitted as lawful permanent residents after obtaining an immigrant visa at a US consulate. It would not apply to people who applied for adjustment of status and committed fraud or misrepresentation during the process. People applying for naturalization should also be aware that if it is found that they were not appropriately adjusted to lawful permanent resident status in the US as a result of  fraud or misrepresentation during adjustment of status, would not be able to avail of the waiver under INA 237(a)(1)(H) if they are denied naturalization and placed in removal proceedings.  Our prior blog contemplated scenarios in which an applicant can be denied naturalization, which could also include cases of innocent misrepresentation while adjusting status in the US. An example could include one who was mistakenly granted adjustment of status by the government in a preference category where the priority date may not have been current. 

The BIA made clear that its ruling in Matter of Fortjoe will apply prospectively and not retroactively. Thus, people who have received waivers prior to this decision based on fraud or misrepresentation will not be adversely impacted by this decision.  

 

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.