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IMMIGRATION FEBRUARY 02, 2024 | The Indian Eye 41

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sought to acquire permanent resident is not necessarily inconsistent with the to protect the age of the child on Febru- viously, she would need to enter the US
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status by paying the NVC fee within maintenance of lawful nonimmigrant ary 14, 2023. Not all derivative benefi- in B-2 status and subsequently file the
1 year of the DFF becoming current. status”. The BIA also referred to legal ciaries might be so fortunate. Take the I-485 with the USCIS. The USCIS may
If for any reason Vivek’s I-485 ap- precedent which states that “a desire example of Vivek’s twin sister Kamala deny the I-485 if Kamala entered the
plication is denied because the USCIS to remain in this country permanently who is not in the US in F-1 status like US with an intent to file for permanent
did not accept that the payment of the in accordance with the law, should the her brother. Her only option to take residency in the US under the fraud or
NVC fee amounted to Vivek seeking opportunity to do so present itself, is advantage of the more favorable DFF willful misrepresentation ground of in-
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to acquire, he would still arguably as not necessarily inconsistent with lawful is to obtain a B-2 visa and then file an admissibility under INA 212(a)(6)(C)
explained in our prior blog be able to nonimmigrant status.” (See Brownell v. I-485 in the US after Nikki is admitted (i). Of course, if Kamala is able to get
maintain F-1 status under Matter of Carija, 254 F.2d 78, 80 (D.C. Cir. 1957); as a lawful permanent resident. It might admitted into the US on a dual intent
Hosseinpour, which recognized inher- Bong Youn Choy v. Barker, 279 F.2d be impossible for Kamala to obtain a H-1B or L-1 visa, she can file the I-485
ent dual intent in nonimmigrant visas. 642, 646 (C.A. 9, 1960). See also Matter B-2 visa as the nonimmigrant visa ap- application without any issues.
Matter of Hosseinpour involved an of H-R-, 7 I & N Dec. 651 (R.C. 1958)). plicant needs to demonstrate a foreign If the DOS aligned its CSPA poli-
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Iranian citizen who entered the U.S. Notwithstanding the disharmony residence abroach which she has not cy with the USCIS, there would be no
as a nonimmigrant student and later between the USCIS and State Depart- abandoned. A consular officer may need for such convoluted albeit legal
applied for adjustment of status. After ment CSPA policy, Vivek is able to take well refuse her application for the B-2 workarounds. Both Vivek in the US
his adjustment of status application was advantage of the more favorable DFF visa under INA 214(b) as she has not and Kamala in India would be able to
denied, he was placed in deportation because he happened to be in the US in been able to establish that she is not an seek the protection of the CSPA based
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proceedings and found deportable by F-1 status and the USCIS belatedly rec- intending immigrant. Even if Kamala on the DFF becoming current on June
an immigration judge on the ground ognized that the DFF could be relied on already obtained a B-2 visa stamp pre- 1, 2020.
that he violated his nonimmigrant sta- _________________________________________________________________________________________________________
tus by filing an adjustment of status Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
application. The BIA disagreed with Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
this interpretation of the nonimmi- mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
grant intent requirement for foreign Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
students, noting the amendments to the Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
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of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
Immigration and Nationality Act had New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
expressly removed a provision stating is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
that an individual’s nonimmigrant sta- received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
tus would automatically terminate if he Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
filed an adjustment of status applica- also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
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tion. Thus, the BIA held that “filing of lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
an application for adjustment of status Chambers Global 2019 in immigration law, among other rankings.

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