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IMMIGRATION JANUARY 26, 2024 | The Indian Eye 45

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do so present itself, is not necessarily of Hosseinpour and USCIS’ new pol- to come to the U.S. perform services changing to F-1 status because their
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inconsistent with lawful nonimmigrant icy guidance can be extended to other in a specialty occupation. Although parent’s I-140 petition is stuck in the
status.” (See Brownell v. Carija, 254 categories of nonimmigrants, as well. A an E-3 is also a “specialty occupation” India EB-1, EB-2 or EB-3 backlogs
F.2d 78, 80 (D.C. Cir. 1957); Bong few categories of nonimmigrant visas, visa, E-3 workers are more restricted and their age has not been protected
Youn Choy v. Barker, 279 F.2d 642, such as H-1Bs and L-1s, expressly al- from seeking permanent residence under the Child Status Protection Act.
646 (C.A. 9, 1960). See also Matter of low “dual intent” in INA 214(b), mean- in the U.S. than those in H-1B status. They will not be held to the impossibly
H-R-, 7 I & N Dec. 651 (R.C. 1958)). ing that a visa holder may pursue per- Expanding the flexibilities reflected in rigid standard of maintaining a for-
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USCIS’ new guidance appears manent residence while simultaneously USCIS’ additions to the policy manuals eign residence abroad they have not
to reaffirm the BIA’s holding in maintaining his nonimmigrant status. would greatly benefit nonimmigrants abandoned, especially if they left their

Matter of Hosseinpour and we re- Other nonimmigrant categories allow and better reflect the nuances inherent home country at a young age many
fer readers to our prior blog, “Long for quasi dual intent such as the O, E-1, in today’s immigration landscape. years ago. Under the new clarification
Live Matter of Hosseinpour: Mak- E-2, and P categories. Nonimmigrants The clarification in the USCIS they would be considered to be main-
ing the Case for Dual Intent in All in these categories are not required to Policy Manual will have the greatest taining a foreign residence abroad so
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Nonimmigrant Visas”. These chang- maintain a foreign residence but are impact on those filing for a change of long as they had one prior to coming to
es also reflect the reality of many still required to leave at the end of their status to F-1 or M-1 from another non- the US even if it was with their parents
nonimmigrant students’ situations. authorized stay. Other categories of immigrant visa status such as H-1B, or guardians and they have a present in-
A foreign student could intend to nonimmigrant visas, however, are ex- and who may be beneficiaries of I-130 tent to depart at the end of their studies.
depart the United States at the end plicitly not dual intent, including E-3 or I-140 petitions. It would also as- *Kaitlyn Box is a Senior Associate at
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of their degree program, but simulta- visas, which allow Australian nationals sist dependents in H-4 status who are Cyrus D. Mehta & Partners PLLC.
neously hope to stay in the country if _________________________________________________________________________________________________________
an opportunity to do so arose. At the Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
time of his entry into the U.S., the for- Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
eign student could hardly predict that mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
he could later apply for adjustment of Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
status based on marriage to a U.S. cit- Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
izen spouse or a prospective employer of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
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would file an I-140 petition. The fact New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
that a foreign student desires to pursue is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
one of these paths to permanent resi- received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
dence if the opportunity arises should Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
not mean that she cannot also possess also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
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the requisite nonimmigrant intent. lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
The flexibility afforded by Matter Chambers Global 2019 in immigration law, among other rankings.

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