Tag Archive for: Adjustment of Status

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 Mehta

Trump’s Escalating Extreme Immigration Measures Towards Noncitizens in the Wake of the National Guard Member Shootings Will Not Make America Any Safer

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In the wake of the tragic shooting of two National Guard members  on November 26, 2025, one of whom has succumbed, Trump uses her death as a pretext to go after millions  who had nothing to do with this attack. The alleged suspect, Rahmanullah Lakanwal,  was paroled into the US  from Afghanistan as part of Operation Allies Welcome. This program evacuated and resettled tens of thousands of vulnerable Afghans following the US military withdrawal and the Taliban takeover of the country.  Lakanwal applied for political asylum in 2024 and was granted asylum in 2025.  

Trump has now cast a shadow on not just Afghans who have come to the US, but on all immigrants including  lawful permanent residents and even people who have naturalized. One person’s actions do not at all justify the suspension of immigration benefits for all Afghan nationals and the imposition of draconian immigration restrictions. We should refrain from scapegoating and tainting an entire immigrant community even if Trump is indulging in it. This sort of racial profiling creates uncertainty and fear to Afghans who helped the US military at great risk to their lives. It also does a disservice to noncitizens who have immigrated and are  contributing to the US. 

Trump posted this on X in a late night screed on the eve of Thanksgiving:

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Trump’s escalating immigration policies in the wake of the shooting include:

  • Pausing all asylum decisions
  • Stopped issuing visas to people from Afghanistan
  • Reviewing green cards issued to people from countries of concern
  • Threatening to end migration from third world countries and revoke citizenship from some naturalized citizens

The USCIS is using the countries that were included in the Presidential Proclamation of 6/10/2025 banning their nationals as negative factors when adjudicating benefits. The Proclamation was issued under INA 212(f) which speaks to the entry of aliens that would be detrimental to the interests of the United States. If USCIS relies on INA 212(f) to deny benefits to nationals of these countries who are already in the US, as opposed to those seeking entry into the US, it should not apply as these noncitizens are already in the US. The USCIS’s denial based on one’s country of nationality under the Proclamation could be challenged in court as an inappropriate reliance of INA 212(f). Although the USCIS has broad discretion in adjudicating immigration benefits such as adjustment of status applications, even a blatantly discriminatory policy as denying benefits solely based on one’s nationality might withstand a court challenge.  Unfortunately,  Congress has precluded challenges to denials of discretionary relief under INA 242(a)(2)(B). So, it may be difficult but not impossible  to challenge the USCIS policy as even discretionary denials cannot be blatantly discriminatory. 

We have pointed out in early March 2025 that Trump’s policies towards noncitizens were cruel and had no rational justification except to harass and intimidate noncitizens. Just prior to the shootings too,  the policy of  detaining spouses of US citizens who appear for their adjustment of status interviews at USCIS offices was the unkindest cut of them all. This has been happening at the USICS office in San Diego, and we hope it does not spread to other USCIS offices. The law allows the spouse of a US citizen, along with other immediate relatives of US citizens such as minor children and parents to adjust status in the US under INA 245(a). They are eligible for adjustment of status even if the underlying visitor status has expired. Most of the times the visitor status expires after the adjustment of status application has been filed and is processed at a glacial pace. This is beyond the applicant’s control. Now Trump’s  ICE agents with masks appear at an adjustment of status interview to detain the unsuspecting spouse who is all set to adjust status and become a permanent resident. The spouse would still become a permanent resident while in removal proceedings before an Immigration Judge, but what a colossal waste of taxpayer money and needless trauma for the family and kids. The only rationale behind this policy is to inflict cruelty, designed and implemented by either xenophobic or sadistic officials under Trump, or a combination of both, who have no sympathy or compassion towards people who are immigrating to the US legally under the INA and to unite with US citizens they love.

There has been a dark history in the US resulting in the scapegoating of immigrants in times of crisis.  A recent example was the restrictions imposed on noncitizens after the September 11, 2001 attack, which included the NSEERS program that resulted in religious, racial and ethnic profiling (see Have We Learned the Lessons of History? World War II Japanese Internment and Today’s Secret Detentions by Stanley Mark, Suzette Brooks Masters and Cyrus D. Mehta).  The delicate balance we strive to achieve as a nation between liberty and security inevitably tips towards security, and civil liberties tend to be compromised. While there can never be a justification to go after immigrants in a time of genuine crisis, Trump has manufactured a crisis to justify his administration’s wantonly cruel attacks on immigrants and now will use the shootings of the National Guard members to further restrict immigration.

The need of the hour is to advocate that one person’s bad acts should not taint all immigrants. Indeed, Lakanwal went through extreme vetting measures when they came to the US and applied for political asylum. Before his arrival, Lakanwal worked with the US government, including the CIA as a member of a partner force in Kandahar, Afghanistan, from 2011 until shortly after the US evacuation. Notwithstanding the extreme vetting measures he was subjected to, Lakanwal still shot at the National Guar members, which resulted in the senseless death of Sarah Beckstrom. It appears that Lakanwal got radicalized in the US and no amount of vetting may have prevented his entry into the US. The next shooter may well  be a homegrown American who probably has never stepped foot outside the US.  It is also worth pointing out that there was no need for Trump to place members of the National Guard in DC and other cities in the first place. 

Contrary to Trump’s unhinged post, we must remember that immigrants have played a crucial role in making America great, and restricting immigration based on isolated incidents will only rob the nation of their talents and contributions.

In conclusion, it is imperative that we resist the temptation to respond to tragedy with fear-driven policies. Instead, we should strive for solutions that uphold the values of liberty and justice, ensuring that America – a nation of immigrants – remains a beacon of hope and opportunity for all.

Cyrus Mehta & Kaitlyn Box*

CSPA Disharmony is More Beautiful Than Monotony Notwithstanding a Discrepancy between USCIS and DOS Policy in Protecting the Age of the Child

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By Cyrus D. Mehta and Kaitlyn Box*

In early 2023, USCIS 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. This shift in policy allowed the age of many more children to be protected under the CSPA.  USCIS acknowledged that:

“After the publication of the May 2018 guidance, the same applicant for adjustment of status could have a visa “immediately available” for purposes of filing the application but not have a visa “become available” for purposes of CSPA calculation. Applicants who filed based on the Dates for Filing chart would have to pay the fee and file the application for adjustment of status without knowing whether the CSPA would benefit them. To address this issue, USCIS has updated its policies, and now considers a visa available to calculate CSPA age at the same time USCIS considers a visa immediately available for accepting and processing the adjustment of status application. This update resolves any apparent contradiction between different dates in the visa bulletin and the statutory text regarding when a visa is “available.”

Cyrus Mehta had long advocated for the use of the DFF for CSPA calculation purposes, and discussed the implications of this policy change at length in a prior blog entitled “CSPA Disharmony: USCIS Allows Child’s Age to be Protected under the Date for Filing While DOS Allows Child’s Age to Be Protected under the Final Action Date”. 

Now, USCIS without advance notice has again 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.    

This policy update ensures both USCIS and the Department of State use the Final Action Dates chart in the Visa Bulletin to determine when a visa becomes available for the purposes of CSPA age calculation. This establishes a consistent CSPA age calculation for aliens who apply for adjustment of status and immigrant visas. The Feb. 14, 2023, policy resulted in inconsistent treatment of aliens who applied for adjustment of status in the United States versus aliens outside the United States who applied for an immigrant visa with the Department of State.”

This change will become effective for applications filed on or after August 15, 2025. 

USCIS’ February 14, 2023 policy that used the DFF to protect the age of the child was salutary, and should have been left in place. This policy protected many more children from aging out, and had a clear legal basis since the DFF allowed one to apply for adjustment of status based on visa availability under INA 245(a)(3) while the child’s age was also frozen based on visa availability under INA 203(h)(1)(A).

The August 2025 policy reversal is ostensibly aimed at ensuring that both the USCIS and the Department of State (DOS) use the FAD chart to determine when a visa becomes available for purposes of the CSPA calculation. A discrepancy indeed existed between the USCIS and State Department policy, as DOS did not issue guidance that corresponded to USCIS’ February 14, 2023 guidance, nor did it update Foreign Affairs Manual (FAM) accordingly. However, both the USCIS and State Department could have instead used the DFF rather than the FAD to determine visa availability.

Notwithstanding the discrepancy between USCIS and State Department policy, using the DFF for CSPA calculation purposes benefited children in the U.S. in a nonimmigrant status whose age got protected under the DFF, and who sought to acquire permanent residence within one year of visa availability, even though their parents obtained an immigrant visa, and permanent residence, under the Final Action Dates some years later.  It also benefitted the entire family if they were here in the US and all filed I-485 adjustment applications together as it kept them united and they were able to derive benefits from the I-485 such as work authorization and travel permission. 

USCIS’ policy reversal will have significant implications for children whose age will no longer get protected under the CSPA. Children of parents who were born in backlogged countries such as India and China are likely to suffer the most severe hardship, as it may be many years before the FAD becomes available, resulting in the children aging out before their age can be protected under the CSPA. Children who may age out before their age can get protected under the CSPA may be reluctant to even file an adjustment of status application in the current climate, as denials if the children age out could result in them being placed into removal proceedings.  

It bears considering whether the cruel policy reversal can potentially be challenged under the Administrative Procedure Act, arguing that the reversal was arbitrary and capricious as the USCIS did not provide a reasoned explanation for its action under DHS v. Regents of the University of California. In Regents, which was discussed in detail in a prior blog, the Court struck down the rescission of the DACA program on the ground that DHS failed to provide a reasoned explanation for taking this action. The Court also focused on the agency’s failure to factor in the reliance interests of DACA recipients, many of whom had enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program.

The anomaly between the USCIS and DOS policy existed when the new policy was announced on February 23, 2023, and so to necessitate a  reconciliation  is a poor justification for reversing the policy. Nothing has changed since 2023. Moreover, even if USICS has provided an August 15, 2025 cutoff date, the reversal would still impact reliance interests as enunciated by the Supreme Court majority in Regents. The DFF will still allow applicants and their children to file I-485 applications after August 15, but once their children age out, their I-485 will get denied. Children are likely to be deterred from filing I-485 applications if there is a risk that they will age out before the FAD becomes current. Despite the weighty impact on reliance interests,  USCIS has failed to provide a reasoned explanation for the reversal.

As the USCIS will continue to use the DFF to protect the age of the child until August 15, 2025, applicants who are eligible to file I-485 adjustment of status applications should do so immediately. After August 15, 2025, while a child may be able to file an I-485 under the DFF it will not protect the age of the child. If the FAD does not become current before the child becomes 21, or if the child turns 21 and cannot utilize the age protection formula under the CSPA, the child’s I-485 application will get denied. This could potentially jeopardize the child’s chances of changing to another nonimmigrant status such as F-1. Although  the Board of Immigration Appeals (BIA)  in Matter of Hosseinpour, 15 I&N Dec. 191 (B.I.A. 1975) recognized an inherent dual intent in all nonimmigrant visas, it may be not be recognized by this Administration under the circumstances of an I-485 that was filed and denied. If children  proceed abroad for an F-1 visa they too risk refusal of the visa under INA 214(b) as they may not be able to rebut the presumption that they are intending immigrants. 

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

 

Cyrus Mehta

Parole in Place – A Means to an End or An End in Itself?

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By Cyrus D. Mehta and Kaitlyn Box*

 On June 18, 2024, President Biden announced new measures aimed at ensuring that “U.S. citizens with noncitizen spouses and children can keep their families together”. One of these measures provides a discretionary grant of parole in place (“PIP”) to individuals who: are present in the United States without admission or parole; have been continuously physically present in the United States since at least June 17, 2014; have a legally valid marriage to a U.S. citizen on or before June 17, 2024; have no disqualifying criminal history and otherwise are not deemed to be a threat to public safety, national security, or border security; and submit biometrics and undergo required background checks and national security and public safety vetting. Individuals whose PIP applications are approved will be able to remain in the U.S. and apply for work authorization. Moreover, the intent of the program is to provide a path to permanent residence. A grant of parole in place “satisfies the requirement under INA section 245(a) that the requestor has been inspected and paroled by an immigration officer”. Qualifying family members of noncitizens granted PIP can file I-130 petitions on their behalf, and the noncitizens can then apply for adjustment of status.

PIP under DHS’s Implementation of the Keeping Families Together program in the Federal Register poses a philosophical question, however – is the measure a means to an end or an end in itself?  The intent of the program is for a noncitizen granted PIP to ultimately be able to be able to adjust status under INA 245(a). When PIP is granted, though, DHS does not require requestors to establish that they are not inadmissible or ineligible for adjustment of status. Although the grant of PIP is only for 3 years, unless extended, requestors can remain in the U.S. and apply for employment authorization upon being granted in PIP. This in itself is a benefit, albeit temporary, and may allow requestors who face grounds of inadmissibility or ineligibility for adjustment of status additional time to overcome these barriers before they file an I-485 adjustment of status application.

There are clearly explicit criminal grounds that would disqualify a PIP application. On the other hand, if a requestor may be potentially inadmissible that in itself would not preclude them from requesting PIP.

The Federal Register notice implementing PIP states the following regarding inadmissibility:

DHS additionally considered requiring the requestor to demonstrate that they are not inadmissible under any ground set forth in INA section 212(a), 8 U.S.C. 1182(a), to be granted parole under this process. This parole in place process is meant for those requestors who are otherwise eligible to adjust status. As noted elsewhere in this notice, serious criminal convictions, including certain convictions that would render the requestor inadmissible and therefore ineligible for adjustment of status, will be disqualifying for this process; other criminal convictions, as well as prior, unexecuted removal orders, will trigger a rebuttable presumption of ineligibility for this process. However, detailed consideration of grounds of inadmissibility—including whether applicable grounds can be waived—is a complex analysis undertaken during the Form I-485 adjustment of status adjudication. Requiring parole in place adjudicators to conduct the inadmissibility analysis that is normally conducted at the adjustment of status stage would be an inefficient, duplicative, and costly use of USCIS resources. Therefore, when assessing eligibility for parole in place, while DHS will consider the requestor’s criminal and immigration history and any other adverse factors that could bear upon admissibility, it will not import the admissibility analysis conducted at the Form I-485 stage into the parole adjudication.

Therefore, requestors who are likely inadmissible but feel that they will be able to overcome these grounds can still apply for PIP. A requestor, for example, who believes that they will not at present be able to overcome the public charge grounds of inadmissibility because the petitioner lacks sufficient income, for example, can still apply for PIP as they may hope that the petitioner’s future tax returns will reflect an income that exceeds 125% of the relevant poverty guideline. Similarly, a requestor who has committed fraud, such as filing a fraudulent asylum applicant in the past, can still apply for PIP and file an I-601 waiver with the I-485, even if the high standard for demonstrating extreme hardship to a qualifying relevant may not be met at the time of requesting PIP but may be satisfied at a later point. For example, having additional US citizen children in the near future would render it more difficult for the US citizen spouse to take care of children if the noncitizen spouse is hypothetically removed from the US. Requestors in these scenarios would still derive the benefits of PIP in good faith and be able to apply for EADs.

An individual requesting PIP could also be prima facie ineligible for adjustment of status if they are subject to an unexecuted removal order for example. The requestor would need to reopen the removal order, most likely though a joint motion with the government, which may or may not occur. Even though a certain fact pattern presented by the requestor could make it difficult to convince an ICE OPLA attorney to agree to join in a motion to reopen, the requestor can still apply for PIP. The Federal Register notice states the following with regards to prior removal orders:

DHS considered whether noncitizens with unexecuted final removal orders should be eligible for this process. DHS determined that noncitizens with unexecuted final removal orders will be presumptively ineligible for parole under this process. DHS recognizes that a noncitizen may have grounds to request that an immigration judge or the BIA reopen their immigration proceedings when they are otherwise eligible for adjustment of status, and thus determined that categorical ineligibility for this parole process would be inappropriate. As a result, DHS will evaluate, in the exercise of its discretion on a case-by-case basis, the facts and circumstances underlying the unexecuted final removal order and all other mitigating factors presented in determining whether the noncitizen may overcome the rebuttable presumption of ineligibility and be granted parole in place.

 Of course, each noncitizen considering requesting PIP must make these assessments themselves. Even if there is no chance that the I-485 will ever get approved, it may be beneficial to request PIP for a 3 year period along with a grant of employment authorization. On the other hand, the Federal Register notice clearly states that there is no assurance that the information provided by the noncitizen in the PIP request will not be used against them:

DHS generally will not use information contained in a request for parole in place under this process for the purpose of initiating immigration enforcement action against the requestor unless DHS determines, in its discretion, the requestor poses a threat to national security, public safety, or border security.[162] This process does not preclude DHS from, in its discretionary authority, taking enforcement actions as deemed appropriate, in accordance with the INA and consistent with governing policies and practices, against noncitizens who may be eligible or who have pending applications for parole under this process. Information provided under this process may be otherwise disclosed consistent with statutory authorities, obligations, and restrictions, as well as governing privacy and information-sharing policies.

Requestors need to decide on a case by case basis whether it is worth obtaining  PIP and work authorization for at least a 3 year period even if they do not ultimately get permanent residence through adjustment of status, and instead get removed from the US. Indeed, there are other risks that could expose the requestor to enforcement action independent of whether the I-485 may be filed and approved. On August 23, 2024, Texas and 15 other Republican states filed a lawsuit in federal court on the ground that the PIP has violated the INA,  the Administrative Procedure Act and the Take Care Clause of the US Constitution. Although in the opinion of the authors the lawsuit is not meritorious as parole is clearly authorized under INA 212(d)(5), it is likely that a judge may preliminarily enjoin the program and a higher court may find it unlawful. Under this circumstance, information provided in the PIP could potentially be used against the noncitizen in an enforcement action regardless of whether the I-485 application may get granted or not.

 

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

 

  

Cyrus Mehta

Does the Signing of the I-485 Supplement J By a New Employer Constitute Visa Sponsorship?

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Cyrus D. Mehta and Jessica Paszko*

Portability under Section 204(j) of the Immigration and Nationality Act (INA) allows certain employment-based green card applicants to change jobs or employers while their adjustment of status (Form I-485) application is pending. Portability becomes available once the I-485 has been pending for at least 180 days. It must be exercised by submitting Supplement J (Form I-485J), which confirms the new job offer and its compliance with the same or similar occupational classification as the original job offer that was the basis of Form I-140. Once an applicant’s I-140 priority date is current, there is a race to file an I-485J before the I-485 is approved to ensure the new employment details are recognized and to avoid any potential complications in the adjustment process or later at the time of naturalization. Foreign nationals with backlogged Form I-140 priority dates are generally not envied by their counterparts whose priority dates are current or about to become current. Ironically, the latter group may find themselves green with envy, wishing their non-current priority date could afford them additional time to secure a job offer when faced with unemployment upon their I-140 priority date becoming current.

We’ve previously addressed the dilemma of a green card being approved prior to filing the I-485J, as well as the uncertainties faced by foreign nationals terminated during the “Twilight Zone” with an I-485 pending for less than 180 days. Yet, in exploring these issues, we may have overlooked a crucial element of the I-485J: the employer’s willingness to endorse it. A laid-off worker with a distant priority date need not fear these dilemmas or uncertainties, even if their adjustment has been pending for less than 180 days. They can diligently pursue new opportunities for similar employment, assuming their I-765 application for an Employment Authorization Document (EAD) has been approved, and then request their new employer to execute an I-485J on their behalf. However, navigating this process may not be straightforward, particularly when addressing the standard screening question posed by employers to avoid a charge of discrimination or bias: “Do you now, or will you in the future, require sponsorship for employment visa status (e.g., H-1B visa status, etc.) to work legally for our company in the United States?”

Arguably, a foreign national employed under a valid EAD does not necessitate ‘sponsorship’ for a visa. Yet, the new employer must execute an I-485J on their behalf. Is an I-485J synonymous with sponsorship? Technically speaking, probably not, though the new employer should be apprised of this material fact which raises the question of when it would be appropriate to raise this with the employer?

Answering the screening question in the negative can be defended, as signing an I-485J does not imply the type of ’employment visa’ sponsorship the question typically refers to. While the need for an I-485J may not need to be disclosed during initial screening, could withholding this information until after signing the offer letter be justified? Introducing the I-485J requirement during the interview process, before the offer letter is finalized, could potentially complicate matters although the timing of such a disclosure should be determined on a case by case basis. From the foreign national’s perspective, it may be prudent to delay discussing the I-485J until after accepting the offer. However, if the employer learns of this requirement earlier and withdraws the offer, could the foreign national claim discrimination under INA 274B? Prevailing in such a claim is unlikely under these circumstances.

In the eyes of immigration practitioners, and employers who have been through the PERM process once or hundreds of times, hiring a foreign national with an approved I-140 and pending I-485 is a hard-to-pass-by bargain especially if they have the ideal sought after skills for the job. The new employer does not need to start the time consuming and costly PERM process anew and gets all the benefit of hiring a foreign national that has been vetted as qualified for the job by both the Department of Labor and USCIS. Surely, it would be silly for any employer to pass on hiring a prospective employee upon learning that just one simple form needs to be endorsed for the employer to take over an I-140 that another company spent significant time and resources to obtain. Although that might be the inherent reaction of the employer familiar with immigration visa sponsorship, alarm bells might go off in the ears of the cautious employer that has never sponsored any foreign nationals. From the cautious employer’s perspective, a signature in the employer’s section on the I-485J could expose them to perjury. The I-485J contains one section that must be signed by the applicant and another section that must be signed by the prospective employer who has to describe the job title, duties, and the Standard Occupational Classification (SOC) code, which may be daunting for the employer to figure out, and even more so in light of signing under penalty of perjury.

An employer’s unwillingness to attest to the contents of the I-485J under penalty of perjury may not be the only consideration. A fearless employer who has a hard time believing the government would bother bringing perjury charges against him for something like this would gladly sign off on an I-485J but for the form’s request for information that is fundamentally at odds with the employer’s business practices. Indeed, an employer who solely offers employment-at-will or who never specifies job duties or job duration in offer letters may be hesitant to change its longstanding practice and provide information in the I-485J it has never put in writing. The employer’s unwillingness to endorse an I-485J because to do so would contradict its normal business practices would also cut against a claim that the employer engaged in discrimination. On the other hand, would a discrimination claim fare any better if the employer’s long standing practice is to include job duties and job duration in its offer letters? From that employer’s perspective, despite its long standing practice, denying an offer of employment to a foreign national in need of an I-485J is not commensurate with discrimination because a signature on the I-485J exposes it to perjury, a major liability that its long standing practice does not even contemplate.

The pre-2017 era prior to the requirement of I-485Js offered a simpler process for adjustment applicants who sought job flexibility. During that time, applicants were generally only required to demonstrate, if questioned during a naturalization interview, that they had moved to a same or similar job. However, this approach introduced uncertainty regarding whether applicants were obligated to disclose changes in employment. With the introduction of regulations like 8 CFR § 240.25(a) many years after the enactment of INA § 204(j), clarity has been enhanced: applicants can now use Form I-485J to affirmatively demonstrate ongoing employment with the sponsoring employer or a new job in the same or similar occupation, after the application has been pending for 180 days. While not explicitly mandatory under 8 CFR § 240.25(a), the instructions on Form I-485J have effectively made it a requirement. However, although there is more certainty with the I-485J, applicants may find themselves penalized if the I-485J does not get submitted before the issuance of a green card. This creates a paradoxical situation where those who secured employment before their I-485 approval may benefit more than those who did not, assuming that the employer is not reluctant to sign its part the first place after being confronted with an I-485J asking for job duties and an SOC code.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

How Prosecutorial Discretion Saved Our Client

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By Cyrus Mehta and Jessica Paszko*

This is the story of our client Nadia Habib who was in immigration proceedings from 18 months till 31 years until an Immigration Judge granted her adjustment of status on November 21, 2023!

Nadia Habib came to the US in 1993 from Bangladesh when she was less than 2 years old with her mother Nazmin Habib. They were paroled into the US at JFK airport.  Some years later in June 1997 they were placed in removal proceedings in New York, and ordered deported in absentia on April 26, 2000 by an Immigration Judge. They did not show up in court on the day of their hearing due to an unfortunate misunderstanding as a result of Nazmin being seriously ill the day before.  Several efforts were made to reopen the in absenstia deportation order but to no avail. However, they continued to live their lives normally as a tightly knit family. Nazmin and her husband Jawad, who had a green card, had three more children in the US who were automatically citizens. Jawad supported the entire family as a yellow taxi driver in New York. Nadia continued to be vulnerable to deportation unlike her citizen siblings, although she showed great promise by doing well in school and getting admitted into the elite Bronx High School of Science in New York.

On September 10, 2011, Nazmin and Nadia, then 19 years old, received a bag and baggage letter from Immigration and Customs Enforcement (ICE) ordering that they surrender for deportation on September 29, 2011. This letter brought their lives and the lives of their family and loved ones to a shocking halt. Nadia’s friends and other immigrant students quickly sprung to action, launching campaigns on Facebook and Twitter, in the hope that Nadia and her mother would be allowed to remain in the US with her father and her three US citizen siblings. On the fateful day she had to appear for deportation on September 29, members of the Youth Leadership Council gathered thousands of petition signatures and turned out over 100 people to rally in support of Nadia and Nazmin and to try to halt the deportation scheduled for that day at 11 am.  The community’s fervent efforts to keep Nadia and Nazmin from returning to Bangladesh that was entirely foreign to Nadia paid off. ICE halted the deportation order and decided to review their case. Though September 29, 2011 was marked with victory for Nadia and her mom, their immigration woes were far from over.

At that time when Nadia was about to get deported, President Obama began to be known as the Deporter-in-Chief. Although Obama was sympathetic towards immigrants, he wanted to also show that he was strict on enforcing the law as a way to get his Republican opponents in Congress to pass a comprehensive immigration reform bill.  As the deportations under Obama spiked in 2011 and 2012, until they reached a record high by 2013, the then ICE Director John Morton issued a landmark memo in 2011 providing detailed guidelines on how ICE officers should exercise prosecutorial discretion.

On September 30, 2011, which also happened to be Nadia’s 20th birthday, ICE issued a Stay of Removal Order for Nadia and Nazmin. This was the first exercise of prosecutorial discretion that would benefit Nadia and Nazmin and a birthday present that Nadia would never forget. Nadia and Nazmin approached our firm to seek representation. The case was so sympathetic and meritorious that we decided to take on the case pro bono. The goal was to find a pathway for Nazmin and Nadia to reopen their deportation orders and adjust status while keeping them in the US in the interim in an authorized capacity as long as possible.

On February 23, 2012, ICE also issued an order of supervision to both Nadia and Nazmin which required them to report in person to ICE on specified dates, usually once or twice a year. On June 15, 2012, the Secretary of Department of Homeland Security (DHS) Janet Napolitano issued a memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children”, officially establishing what would later be known as the Deferred Action for Childhood Arrivals (DACA) program. DACA came to be the second form of prosecutorial discretion that benefitted Nadia who clearly qualified as she came to the US well before the age of 16. After graduating from the Bronx High School of Science, Nadia pursued undergraduate studies at Stony Brook University and later obtained her master’s degree in architecture from The City College of New York. On the basis of DACA, Nadia was able to apply for an Employment Authorization Document (EAD) in September 2012. Since then, our firm helped Nazmin and Nadia comply with their annual appointments with ICE and apply for DACA extensions along with the EAD. Nadia had to report each year for her appointment with ICE even though she was authorized to remain in the US under DACA. Every time Nadia wanted to travel outside New York for a trip to another state, even over a long weekend, she had to ask for and receive permission from ICE.

In the meantime, Nadia’s US citizen brother filed Form I-130 on behalf of his mother Nazmin which was approved in early 2016. Jawad had not yet naturalized as his application had been erroneously denied and our appeal challenging the denial was pending. This I-130 served as the basis of our request to DHS to join our motion to reopen Nazmin’s removal so that Nazmin could apply for adjustment of status based on the approved I-130 petition filed by her US citizen child. A removal order can be reopened at any time if the government joins in a motion to reopen even though prior efforts to reopen the removal were unsuccessful. The ability of the government joining in a motion to reopen depends on the policies of the administration at any given time. We requested the government to join in the motion in September 2016, during the final year of the Obama administration based on Morton’s prosecutorial discretion policy. Donald Trump became president in 2017 and our request was pending, but the ICE attorney who got our request to join in the motion fortunately agreed to join in the motion to reopen Nazmin’s removal proceedings to the Board of Immigration Appeals (BIA) even though by then prosecutorial discretion became non-existent under Trump’s new enforcement oriented immigration focus. In July 2017, the BIA granted our motion based on the government’s consent and remanded for further proceedings. After a nearly five year wait (since the I-485 application could not be tracked in the USICS bureaucracy until there was Congressional intervention), Nazmin was scheduled for an adjustment interview in March 2022 at a USCIS field office in Long Island where her adjustment of status application was finally granted.

Nadia was still not eligible to adjust status, so we could not request the government to join in the motion to reopen. Although Nadia’s father eventually naturalized, she was unable to adjust status through him as she was over 21 years old. Despite this, Nadia continued to be able to remain in the US thanks to DACA. When Nadia married her US citizen husband in 2020, he filed Form
I-130 on her behalf which was approved the following year. Following a similar path as her mother case, in January 2022, our firm submitted a request to DHS to join our motion to reopen Nadia’s removal order so that Nadia could apply for adjustment of status based on the approved I-130 petition filed by her husband. By then Joe Biden was President and he once again instructed ICE to exercise prosecutorial discretion. In November 2022, DHS consented to joining in the motion to reopen for the sole purpose of dismissal of removal proceedings. The following month, in December 2022, we submitted our joint motion to reopen Nadia’s removal proceedings to the BIA. In February 2023, the BIA granted our motion and reopened and remanded to the Immigration Court for further proceedings. In September 2023, we learned that Nadia had been scheduled for a merits hearing on November 1, 2023 by happenstance as neither Nadia nor our firm received the notice – imagine if the Immigration Judge would have again deported Nadia in absentia at the hearing. Our request to adjust Nadia’s status on the basis of her I-130 was unopposed by DHS, though the Immigration Judge could not grant the adjustment as the sealed medical report that we had delivered to the Immigration Court in advance of the November 1st hearing had not made its way to him. The Immigration Judge continued the hearing to November 17, 2023 where finally, after many trials and tribulations, Nadia was adjusted to lawful permanent resident status. Nadia’s order of supervision dissolved on that day too relieving her from reporting to ICE each year.

Nadia was 32 years old on the day she was granted adjustment of status, and before then she had been in some form of immigration proceeding since she was 17 months old. Today Nadia is a successful architect and her siblings are also equally successful. Through this period, Nadia benefited from prosecutorial discretion, but the path was never smooth. DACA was declared unlawful by a federal judge and its fate hangs in the balance till this day. Even after Biden became president, courts enjoined his prosecutorial discretion policies that were set forth in the memo of DHS Secretary Mayorkas, but we advocated, when requesting the government to join in the motion to reopen, that the government could still exercise discretion outside the priorities set forth in the Mayorkas memo. Despite the court block of the Mayorkas memo, the DHS retained the ability to exercise discretion and join in a motion to reopen. Imagine if Nadia did not receive the stay of removal in 2011 and was deported to Bangladesh after she had spent her whole life in the US. But for the prosecutorial discretion policies in place, Nadia would have been deported because of an in absentia deportation order that she received, over which she had no control and for no fault of her own. Nadia and Nazmin were also fortunate that ICE attorneys agreed to join in the motions to reopen despite the zigzagging prosecutorial discretion policies over three presidential administrations.

We are proud to have represented Nadia and Nazmin tenaciously and doggedly for well over 10 years in a pro bono capacity!

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Advancing the Dates for Filing in the State Department Visa Bulletin Will Restore Balance and Sanity to the Legal Immigration System

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By Cyrus D. Mehta

The August 2023 Visa Bulletin is a disaster. Here are some of the highlights:

Establishment of Worldwide employment-based first preference (EB-1) final action date.  Rest of World countries, Mexico, and Philippines will be subject to a final action date final action date of August 1, 2023. It is likely that in October the category will return to “Current” for these countries.

Retrogression in employment-based first preference (EB-1) for India.  India will be subject to an EB-1 final action date of January 1, 2012. It is likely that in October the final action date will advance.

Retrogression in employment-based third preference (EB-3) for Rest of World countries, Mexico, and Philippines. The Rest of World, Mexico, and Philippines EB-3 final action date will retrogress in August to May 1, 2020.

Retrogression in family-based second preference (F-2A) for Rest of the World countries, China and India. The Rest of World, China, and India F2A final action date will retrogress to October 8, 2017.

.The bad news from the July 2023 Visa Bulletin continues into the August 2023 Visa Bulletin.  The India EB-2 final action date remains retrogressed at January 1, 2011. The India EB-3 final action date remains retrogressed at January 1, 2009. Still, the corresponding dates for filing  in the August 2023 visa bulletin are significantly more ahead than the final action date. For instance, the dates for filing for the F2A for all countries is current. The dates for filing for the EB-1 for the Rest of the World is current and for India is June 1, 2022. Yet, the USCIS has indicated that I-485 adjustment of status applications can only be filed in August 2023 under the dates for filing chart  if they are family-based while I-485 adjustment of status applications can only be filed in August 2023 under the final action dates chart if they are employment-based.

The USCIS should allow I-485 applications related to both family and employment-based petitions to be filed under the dates for filing chart. Indeed, in the face of massive retrogression in the Visa Bulletin, the Biden administration does have the authority to move the dates for filing to current. However, even before taking this radical step, which has a legal basis, the administration should  at least allow I-485 applications to be filed under the dates for filing in both the family and employment-based preferences.

The total allocation of visa numbers in the employment and family based categories are woefully adequate. §201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  INA §202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. These limits were established in the Immigration Act of 1990, and since then, the US Congress has not expanded these limits for well over three decades. In 1990, the worldwide web was not in existence, and  since then, there have been an explosion in the number of jobs as a result of internet based technologies and so many related technologies as well as a demand for foreign skilled workers many of whom have been educated at US educational institutions.  Yet, the US legal immigration system has not kept up to timely give green cards to immigrants who contribute to the country. Due to the per country limits,  till recently it was only India and China that were backlogged in the employment based preferences, but now under the August 2023 Visa Bulletin all countries face backlogs. Still, India bears the brunt disproportionately in the employment-based categories, and one study has estimated the wait time to be 150 years in the India EB-2!

It would be ideal for Congress to eliminate the per country limits and even add more visas to each preference category. Until Congress is able to act, it would be easy for the Biden administration to provide even greater relief through executive action. One easy fix is to advance the dates for filing in the State Department’s Visa Bulletin so that many more backlogged beneficiaries of approved petitions can file I-485 adjustment of status applications and get  ameliorative relief such as an  employment authorization document (EAD), travel permission and to be able to exercise job portability under INA §204(j). Spouse and minor children can also avail of work authorization and travel permission after they file their I-485 applications.

There is a legal basis to advance the dates for filing even to current. This would allow many backlogged immigrants to file I-485 adjustment of status applications and get the benefits of adjustment of status such as the ability to port to a new job under INA 204(j), obtain travel permission and an EAD. Many more of the children of these backlogged immigrants would also be able to protect their age under the USCIS’s updated guidance relating to the Child Status Protection Act.

INA §245(a)(3) allows for the filing of an adjustment of status application when “an immigrant visa  is immediately available” to the applicant. 8 CFR 245.1(g)(1) links visa availability to the State Department’s monthly Visa Bulletin. Pursuant to this regulation, an I-485 application can only be submitted “if the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current).” The term “immediately available” in INA 245(a)(3) has never been defined, except as in 8 CFR 245.1(g)(1) by “a priority date on the waiting list which is earlier than the date shown in Bulletin” or if the date in the Bulletin is current for that category.

The State Department has historically never advanced priority dates based on certitude that a visa would actually become available. There have been many instances when applicants have filed an I-485 application in a particular month, only to later find that the dates have retrogressed. A good example is 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. If the State Department was absolutely certain that applicants born in India and China who filed in April 2012 would receive their green cards, it would not have needed to retrogress dates back to August 15, 2007.  Indeed, those EB-2 applicants who filed their I-485 applications in April 2012 may still potentially be waiting and have yet to receive their green cards even as of today! Another example is when the State Department announced that the July 2007 Visa Bulletin for EB-2 and EB-3 would become current. Hundreds of thousands filed during that period (which actually was the extended period from July 17, 2007 to August 17, 2007). It was obvious that these applicants would not receive their green cards during that time frame. The State Department then retrogressed the EB dates substantially the following month, and those who filed under the India EB-3 in July-August 2007 waited for over a decade before they became eligible for green cards. More recently, the September 2022  Visa Bulletin had a final action date of December 1, 2014 for EB-2 India. In the next October 2022 Visa Bulletin the FAD for EB-2 India was abruptly retrogressed to April 1, 2012 and then further retrogressed to October 8, 2011 in the December 2022 Visa Bulletin. If a visa number was immediately available in September 2022, an applicant under EB-2 India with a priority date of December 1, 2014 or earlier should have been issued permanent residence.

These three examples, among many, go to show that “immediately available” in INA 245(a)(3), according to the State Department, have never meant that visas were actually available to be issued to applicants as soon as they filed. Rather, it has always been based on a notion of visa availability at some point of time in the future.

Under the dual filing dates system first introduced by the State Department in October 2015, USCIS acknowledges that availability of visas is based on an estimate of available visas for the fiscal year rather than immediate availability:

When we determine there are more immigrant visas available for the fiscal year than there are known applicants, you may use the DFF Applications chart to determine when to file an adjustment of status application with USCIS. Otherwise, you must use the Application Final Action Dates chart to determine when to file an adjustment of status application with USCIS.

Taking this to its logical extreme, visa availability for establishing the dates for filing may be based on just one visa being saved in the backlogged preference category in the year, such as the India EB-3, like the proverbial Thanksgiving turkey. Just like one turkey every Thanksgiving Day is pardoned by the President and not consumed, similarly one visa can also be left intact rather than used by the noncitizen beneficiary.   So long as there is one visa kept available, it would provide the legal basis for an I-485 filing under a DFF, and this would be consistent with INA 245(a)(3) as well as 8 CFR 245.1(g)(1). This is reflected in the August  2023 Visa Bulletin as the first visa in the India EB-3 has a priority date of January 1, 2009. Hence, there is one available visa in the India EB-3 skilled worker, otherwise it would have stated “Unavailable.”  The   dates for filing could potentially advance and become current based on this available visa with a  January 1, 2009 priority date in the India EB-3, thus allowing hundreds of thousands of beneficiaries of I-140 petitions to file I-485 applications.

This same logic can be extended to beneficiaries of family-based I-130 petitions.

The administration simply needs to move the dates for filing to current or close to current. It can undertake this executive action through a stroke of a pen. However, if it needs to do this through rulemaking 8 CFR 245.1(g)(1) could be easily amended (shown in bold) to expand the definition of visa availability:

An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“Final Action Date”). An immigrant visa is also considered available for submission of the I-485 application based on a provisional priority date (“‘Dates for Filing”) without reference to the Final Action Date. No provisional submission can be undertaken absent prior approval of the visa petition and only if all visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current Final Action Date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.

 

The Biden administration has provided relief to hundreds of thousands of foreign nationals through executive actions such as humanitarian parole, now enforcing deportation against low priority individuals and extending DACA. The administration recently announced a Family Reunification Parole Initiative for beneficiaries of approved I-130 petitions who are nationals of Colombia, El Salvador, Guatemala, & Honduras. Nationals of these countries can be considered for parole on a case-by-case basis for a period of up to three years while they wait to apply to become lawful permanent residents. This is an example of the administration using its executive authority to shape immigration policy in the absence of meaningful Congressional action to reform the system. Indeed, this initiative can serve as a template to allow beneficiaries of approved I-130, I-140, and I-526 petitions to be paroled into the US while they wait for a visa number to become available, which under the backlogs in the employment and family preference categories, can take several years to decades. The Biden administration ought to likewise advance the DFF to current so that beneficiaries of family and employment petitions can file I-485 applications and get the benefits of employment authorization, advance parole and the ability to port to a new employer if the job is same or similar to the position that was the subject of the sponsorship for the green card. There  is also a parallel campaign to convince the administration to issue an EAD and advance parole for beneficiaries of approved I-140 petitions, although this should be done in conjunction with advancing the dates for filing so that applicants can also file I-485 applications. Once the I-485 is filed applicants would also be able to port to same or similar jobs under INA §204(j) and keep intact the underlying labor certification and I-140 petition.  As we have shown in a related blog on the compelling circumstances EAD, if the EAD is not linked to an I-485 application and they do not have nonimmigrant status, holders of this EAD will have to leave the US to consular process for their immigrant visas and would also need another employer to sponsor them if they have left or cut ties with the original employer who sponsored them.  This would entail getting the new employer to start the whole labor certification process, which is perilous these days if the employer as laid off workers.

The Supreme Court in United States v.  Texas very recently rendered a blow to Texas and Louisiana in holding that they had no standing to challenge the Biden administration on federal immigration policy on enforcement priorities. As this analysis can also apply to challenges to other executive actions on immigration by states not friendly to pro immigrant executive actions, the Biden administration should move boldly and advance the DFF in the State Department Visa bulletin to restore balance and some semblance of sanity to the legal immigration system in the US.

Cyrus Mehta

Helping Afghans and Ukrainians Progress from Parole to Temporary Protected Status to Permanent Residence

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By Cyrus Mehta and Kaitlyn Box*

In light of the recent crises in Afghanistan and Ukraine, Temporary Protected Status (TPS) has been at the forefront of discussions around how the United States can assist individuals who are fleeing these two countries. On March 3, 2022, Ukraine was designated for TPS for an 18 month period. On March 16, 2022, the Department of Homeland Security also announced the designation of Afghanistan for TPS for a period of 18 months.

Generally, TPS provides a temporary immigration status to nationals of countries fraught with armed conflict or other disasters. In order to be eligible for TPS, an individual must be a national of a country designated for TPS, have been continuously present in the U.S. since the date of the designation, have continuously resided in the U.S. since a date specified by the Secretary of Homeland Security, and not be inadmissible to the United States. In the case of Ukraine, the requirement that applicants must have continuously resided in the United States since April 11, 2022 will render many  Ukrainian nationals ineligible for TPS, as many individuals fleeing the war would not have arrived in the United States by that date. Individuals who are granted TPS receive a stay of deportation and temporary authorization to work in the United States.

The Uniting for Ukraine program that would allow Ukrainians to enter the US under humanitarian parole was announced on April 21, 2022. Thus, those who will get paroled into the US under Uniting for Ukraine will not be eligible for TPS.  However, several thousand Ukrainians who came to Mexico  after the Russian invasion in February 20, 2022 and got paroled into the US from the Southern border prior to April 11, 2022 will be eligible for TPS.

On the other hand, Afghans have been applying for  humanitarian parole prior to and  after the US withdrew from Afghanistan on August 30, 2021. A recent New York Times report states that of the 43,000 humanitarian parole applications received by USCIS since July 2021, the agency has processed less than 2,000. Of those processed applications, 1,500 were denied and 170 were approved as of February 11, 2022. While the humanitarian parole program for Afghans has been a disappointment, those who have been paroled into the US already prior to March 16, 2022 can apply for TPS.

Though it provides an important temporary form of relief for some nationals of countries experiencing a crisis, TPS is, by its very nature, temporary and does not provide foreign nationals with a pathway to permanent residence or citizenship in the United States. Thus, one must look for other alternatives for individuals who wish to seek permanent residence in the United States. Foreign nationals who have a U.S. citizen or lawful permanent resident relative may be able to file a family-based adjustment of status application, but some family preference categories are extremely backlogged. Skilled TPS recipients who can find a U.S. employer to sponsor them may instead be eligible to file an employment-based adjustment of status application. There are no backlogs for most TPS-designated countries, and spouses and minor children of the primary applicant may also file adjustment of status applications. In addition, foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics may be eligible for an employment-based, first-preference visa, which does not require employer sponsorship or a Labor Certification.

However, complications arise when a TPS recipient who entered the U.S. without inspection wishes to apply for permanent residence. Pursuant to INA § 245(a), an individual must have been inspected and admitted  or paroled into the United States in order to be eligible to apply for adjustment of status. A foreign national who was inspected and paroled into the United States would be eligible for adjustment of status, but an individual who entered without inspection would not. In a previous blog, we analyzed the Supreme Court’s decision in Sanchez v. Mayorkas, which holds that a grant of Temporary Protected Status (TPS) does not constitute an admission under INA § 245(a) for purposes of adjustment of status. However, the decision seems to leave open whether a grant of TPS could “cure” a short lapse in the status of an individual who was inspected and admitted to the U.S., but later fell out of status. In her opinion, Justice Kagan gives the example of an individual who was out of status for a few months before receiving TPS, potentially implying that receiving TPS ends an individual’s time out of status, if this duration would otherwise have exceeded 180 days and rendered the individual unable to adjust under INA § 245(k). Additionally, the decision could imply that a grant of TPS could qualify as a “lawful nonimmigrant status”, which could assist individuals who would otherwise have been ineligible to file and adjustment of status application under INA § 245(c)(7).

While TPS is no doubt an important tool for aiding individuals who have fled Ukraine or Afghanistan, not all nationals of these countries will be eligible and a grant of TPS does not provide a path to permanent residence in the U.S. Thus, some TPS recipients, or individuals from TPS-designated countries who are ineligible, may be able to utilize employment-based immigrant visa petitions as a path to permanent residence.  Thus, one who was initially paroled into the US and then was granted TPS would be able to apply for adjustment of status if he or she became the beneficiary of an employment based I-140 petition after an employer obtained labor certification. The parole would fulfill the requirement  under INA 245(a) that the applicant have been inspected and admitted or paroled into the US. The subsequent grant of TPS would then confer “lawful nonimmigrant status” to that applicant and thus render him or her eligible for adjustment of status under INA §245(c)(7).  However, TPS recipients who entered without inspection will be ineligible to apply for adjustment of status. For individuals who were inspected and admitted to the U.S., though, but later had a lapse in status, a grant of TPS could render them again eligible for permanent residence.

There will be large numbers who will enter the US on humanitarian parole under Uniting for Ukraine but will not be eligible to receive TPS as they would have entered the US well after the cut off date of April 11, 2022. If a parolee is sponsored by an employer through labor certification, he or she will not be eligible for adjustment of status as parole is not considered a lawful nonimmigrant status under INA  § 245(c)(7).  This person will have to process at a US Consulate overseas after the I-140 petition is approved. Fortunately, Ukrainian nationals can have their cases processed at the US Consulate in Frankfurt rather than in Kiev. On the other hand, a parolee would still be able to adjust status under 245(a) as an immediate relative. Similarly, a parolee who becomes the beneficiary of an I-130 petition under a family preference category will also be able to adjust status as the requirement to be in “lawful nonimmigrant status” under 245(c)(7) only applies to beneficiaries of employment-based petitions and not family-based petitions. Indeed, one in parole status would be considered  to be in a lawful status under 8 CFR 245.1 (d)(1)(v) for purposes of adjusting status under a family-based petition but not an employment-based petition.

There are pathways for people who have been paroled to become permanent residents, and even more  pathways for those who have subsequently received TPS. Given the low unemployment rate and shortage of workers in the US, employers should look to not just be hiring Ukrainians and Afghans as parolees or in TPS status, but must also endeavor to sponsor people with parole and TPS for permanent residence through a labor certification, an I-140 petition and the filing of an I-485 adjustment of status application. Those who may not be eligible for adjustment of status because they are parolees can still proceed to a US Consulate for an immigrant visa following the approval of the I-140 petition.

The sponsoring of  workers based on their true worth skills would allow them to pursue better jobs and careers. Presently, people on TPS or parole may have employment authorization, but many are in jobs that may not match their skills. How many times has one been driven by a taxi driver who was a doctor or engineer in their own country or received groceries from a delivery person who may have previously been an accountant?   An employer who commits to hiring and then sponsoring a foreign national worker on parole or TPS based on their real skills creates a win-win situation for both.

(This blog is for informational purposes and should not be viewed as a substitute for legal advice).

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and is an Associate at Cyrus D. Mehta & Partners PLLC.

 

 

 

Cyrus Mehta

Frequently Asked Questions on Transferring the Underlying Basis of an I-485 application from an I-140 petition under India EB-3 to an I-140 under India EB-2

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Update – January 21, 2022

On January 21, 2022, USCIS released new guidance on requests to transfer the underlying basis of an I-485 to a different employment-based immigrant category based on another Form I-140. The guidance states that USCIS may, in its discretion grant a transfer of underlying basis if the following criteria are met:

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