Tag Archive for: EB-4

Cyrus D. Mehta & Damira Zhanatova

Matter of Ho Revisited: Protecting Adjustment Applicants in Removal Proceedings When Visa Numbers Are Unavailable

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By Cyrus Mehta and Damira Zhanatova* 

The October 2026 Visa Bulletin created an unusual opening for some EB-4 applicants, including Special Immigrant Juveniles (SIJs), whose dates for filing have advanced to January 1, 2025.  As a result, these individuals may be eligible to file Form I-485 under USCIS’s October 2026 guidance permitting employment-based adjustment applicants to use the Dates for Filing chart, even though an immigrant visa is not currently available under the Final Action Dates chart. The EB-4 final action date in the October 2026 Visa Bulletin remains December 15, 2022. That filing opportunity, however, does not shield a noncitizen from DHS enforcement actions or placement in removal proceedings before a visa number becomes available for final approval of the adjustment application. For instance, an individual with a pending I-485 application filed when the Dates for Filing chart was current could still be detained while on a domestic flight within the United States. ICE has been coordinating with TSA to detain and charge as removable individuals with pending I-485 applications on the grounds that their initial visa status has expired or, in the case of an SIJ, that they entered without inspection.

That is where Matter of Ho, 15 I&N Dec. 692 (BIA 1976), becomes relevant. In Ho, the Board held that where respondents were eligible for adjustment in all other respects, and the sole reason they could not obtain adjustment was that visa numbers that had been available when the applications were filed later became unavailable, the case should be held in abeyance rather than denied outright. The Board expressly applied that principle in deportation proceedings, rejecting the notion that such protection disappears simply because the respondent seeks adjustment before an Immigration Judge rather than USCIS. Ho stands for the proposition that, when adjustment is otherwise approvable, the subsequent unavailability of a visa number should not defeat the application. Instead, adjudication should be paused until a visa number becomes available. The logic of Ho is therefore closely tied to whether visa availability is the only remaining obstacle to adjustment and whether no other issues remain to be resolved.

The same principle appears in Matter of Briones, 24 I&N Dec. 355, 357 n.3 (BIA 2007), where the BIA, citing Ho in footnote 3, stated that a respondent who had a current priority date when the adjustment application was filed is not rendered ineligible by subsequent visa retrogression, although final approval must be held in abeyance. EOIR’s continuance guidance likewise provides that cases filed when a visa was immediately available but later retrogressed should be held in abeyance. Federal case law has similarly treated Ho as binding Board precedent that Immigration Judges and the BIA must at least confront when retrogression is the only barrier to completion of adjustment processing. In Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008), the Fifth Circuit reversed and remanded a denial of a continuance on abuse of discretion grounds where the agency failed to apply Matter of Ho.

Matter of Ho can be distinguished from Matter of Pinzon Rozo, 29 I&N Dec. 507 (BIA 2026). Pinzon Rozo did not involve post-filing visa retrogression. The respondent there had an approved SIJ petition, but there was a nearly four-year gap between his priority date and the currently available visa date, so the BIA held that the Immigration Judge erred in granting a continuance to await a visa for an uncertain and lengthy period. Unlike Matter of Ho, Pinzon Rozo did not involve a visa-availability case, but instead involved an I-360 petition that had been filed when visa dates were not current, with the beneficiary waiting for the priority date to become current.

That distinction matters for SIJ and EB-4 respondents who file during a month like October 2026, when USCIS permits use of the Dates for Filing chart, and who are later put into proceedings, including after an ordinary domestic-travel encounter, before the Final Action Date is current. It also matters where the applicant properly filed and visa numbers later retrogressed before the Immigration Judge is ready to adjudicate the application. The argument is not that filing an I-485 prevents DHS from issuing an NTA. Rather, once a properly filed adjustment application is pending and visa-number unavailability is the sole remaining obstacle, Ho and Briones provide the strongest basis for asking the court to continue proceedings or hold the application in abeyance.

Although this discussion arises in the EB-4 context, the same reasoning may extend to EB-2 and EB-3 beneficiaries who timely filed I-485 applications under the Dates for Filing chart and were later placed in removal proceedings after their underlying H-1B or L-1 status expired. Such applicants may have reasonably relied on the lawful period of stay authorized by their pending adjustment applications and on employment authorization issued through those applications, only to be charged by ICE with removability because their nonimmigrant status had lapsed. For these respondents as well, where the adjustment application was properly filed and visa-number unavailability is the only remaining impediment to final adjudication, counsel should invoke Ho and Briones in seeking a continuance or abeyance rather than denial of adjustment.

The harder question is whether an Immigration Judge must accept that argument when the case was filed with USCIS under the Dates for Filing chart, but the Final Action Date is not current by the time the court addresses adjustment. The best reading for respondents is that this situation is closer to Ho and Briones than to Pinzon Rozo, because the problem is later visa-number unavailability at the time of adjudication, not an initially speculative wait for visa eligibility.

Matter of Ho is newly important in the October 2026 EB-4 context and in other contexts in which an I-485 application was filed with an I-130, I-140, I-360, or I-526 petition when the Dates for Filing chart was current. Where the applicant was eligible to file, and the only thing preventing approval is the subsequent unavailability of a visa number, counsel should argue for abeyance or a continuance under Ho and Briones and distinguish Pinzon Rozo as a case involving a priority date that was never close to becoming current in the first place.

Where a respondent properly filed for adjustment, is eligible in all other respects, and later cannot obtain final approval solely because visa numbers are unavailable, counsel should argue for abeyance or a continuance under Ho and Briones and distinguish Pinzon Rozo as a case involving a priority date that was never close to becoming current in the first place. Under Ho, when visa-number unavailability is the only obstacle, the case should be held in abeyance until visa availability returns rather than denied on that basis. Counsel can argue that this approach is consistent with the Board’s longstanding treatment of visa retrogression and is particularly appropriate where the respondent complied with all legal requirements and visa-number unavailability arose only after the adjustment application was properly filed.

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

 

Cyrus Mehta & Kaitlyn Box*

The Inherently Moral Executive Actions on Immigration Cannot Die Under Trump

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By Cyrus D. Mehta and Kaitlyn Box*

The Trump administration is doing its best to kill executive actions that benefit vulnerable noncitizens. In a June 6, 2025 Policy Alert, the administration announced that it would rescind automatic consideration of deferred action for noncitizens classed as Special Immigrant Juveniles (SIJ) who are unable to able for adjustment of status due to visa unavailability. This harsh measure will not only deprive noncitizens classified as SIJ who are trapped in the lengthy EB-4 backlog of work authorization based on deferred action, but may also leave them vulnerable to deportation. By way of justification for its policy, the administration asserts that “Congress… did not expressly permit deferred action and related employment authorization for this [SIJ] population. Neither an alien having an approved Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) without an immediately available immigrant visa available nor a juvenile court determination relating to the best interest of the SIJ are sufficiently compelling reasons, supported by any existing statute or regulation, to continue to provide a deferred action process for this immigrant category.” 

In Tyranny of Priority Dates, Gary Endelman and Cyrus Mehta laid the ground work for how executive actions can be used to provide ameliorative relief to millions of noncitizens caught in the crushing backlogs in the legal immigration system. It was unimaginable that the ideas proposed in this groundbreaking article in 2010 would have resulted in actual executive actions, but they did, from the State Department’s dual date visa bulletin to deferred action to parole for beneficiaries of approved visa petitions waiting outside the US. Most recently, the USCIS recognized that the filing date in the dual visa bulletin  could protect the age of the child under the Child Status Protection Act, which Cyrus Mehta  recommended in 2021. Even while Trump tries to snuff out executive actions that provide ameliorative relief, the blueprints for different executive actions outlined  in Tyranny of Priority Dates can never die, and should be protected and brought to life. 

June 15, 2025, marked the 13th anniversary of the Deferred Action for Childhood Arrivals (DACA) program. DACA was created in 2012 to offer deportation relief and work permits to young immigrants who were brought to the U.S. as children. While DACA has allowed hundreds of thousands of Dreamers to pursue education and careers, it remains under legal threat, with new applications currently blocked. Still, even if DACA is on a respirator, it allows recipients to continue to live, work, prosper and contribute to America. DACA has transformed for the better the lives of young, undocumented people who came to the U.S. as children. Without this policy, hundreds of thousands wouldn’t have accessed higher education, started careers, enjoyed the relative stability to start their families and contributed to the US in myriad ways through their skills and talents.  At the same time, with each passing DACA anniversary, there is tremendous uncertainty as the Trump Administration attempted to strip DACA recipients of their protections; an attack on the policy that continues in the courts today. The legal fight will continue into the Supreme Court. Regardless of how the Supreme Court rules on DACA, Congress must step in and provide protection to legal dreamers with a pathway to citizenship. DACA is too precious to be lost and for dreams to shatter. 

In a January 20, 2025 Executive Order entitled “Protecting the American People Against Invasion”, the Trump administration purported to remove the ability for immigration officials to exercise prosecutorial discretion. Notwithstanding the executive order, however, prosecutorial discretion as a concept is embedded in our immigration system and can never truly die. Even Trump himself seems to have acknowledged recently that immigration enforcement taken to the most aggressive extremes may have a deleterious impact. The administration has reportedly asked Immigration and Customs Enforcement (ICE) to “largely pause raids and arrests in the agricultural industry, hotels and restaurants”, recognizing that apprehending and detaining immigrant workers in these key industries was likely to harm the U.S. economy and generate a public backlash. 

Ameliorative executive actions such as deferred action and parole have long been used by prior administrations to provide ameliorative relief to millions of vulnerable immigrants left unprotected due to our imperfect immigration laws which Congress has proved incapable of amending over the past few decades. Even if Trump disfavors executive actions that are inherently moral and do good, these concepts will continue to remain blueprints for future enlightened immigrant and immigrant- friendly administrations to re-activate, as well as serving as models for future legislation. In the meantime, today, across the country, people are marching to stand up to abuse of power, unlawful detentions and the cruel and unjust termination of immigration programs. The movement must continue to swell until the Trump administration realizes that being a dictator to immigrants will backfire and will drive him and his minions out of office and into the dustbin of history. 

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