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ImmIGRATION JULY 02, 2021 | The Indian Eye 45

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On the other hand, INA ative) is precluded from plication under a fam- disqualifies one from opinion. Under the
§245(k) could still po- applying for adjustment ily based preference or adjusting status who broadest interpretation
tentially come to the of status if they are in an employment-based accepted employment of Justice Kagan’s opin-
rescue if the individual is unlawful status at the preference even 180 while unauthorized. ion, TPS applicants, if
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granted TPS status with- date of filing the applica- days beyond the admis- Under the broader in- they were initially ad-
in 180 days of the ad- tion or who have failed sion and the grant of terpretation of Justice mitted, should continue
mission but then seeks to maintain continuous- TPS. Kagan’s opinion, the to claim that they are
to file for adjustment of ly a lawful status since INA § 245(c)(7) sim- grant of TPS ought to eligible to adjust status
status 180 days after the entry into the US. INA ilarly precludes adjust- also remove this im- under both the family
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admission. The grant of § 245(k) allows one who ment of status to that pediment under INA § and employment pref-
TPS would have put the was admitted to apply of an immigrant un- 245(c)(8) too. erences by virtue of re-
person back in nonim- for adjustment of sta- der INA § 203(b) (the While the Supreme ceiving nonimmigrant
migrant status within tus under the first three five employment-based Court nixed the ability status.
the 180 days from the employment-based preferences) for one of TPS applicants to ad- *Kaitlyn Box grad-
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admission, even if they preferences and the em- who is not in a lawful just status if they were uated with a JD from
file an adjustment appli- ployment-based fourth nonimmigrant status. not admitted, there are Penn State Law in 2020,
cation after 180 days. preference as a religious A grant of TPS ought still some bright spots and works as a Law
Justice Kagan’s opin- worker if they have to wipe out this imped- if one carefully parses Clerk at Cyrus D. Mehta
ion can be interpreted failed to maintain lawful iment. INA § 245(c)(8) through Justice Kagan’s & Partners PLLC
even more broadly to status for not more than _________________________________________________________________________________________________
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support the idea that 180 days. But INA § Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing
a grant of TPS “wipes 245(k) is inapplicable to Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s
out” a lapse in the non- one who is applying for Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics
immigrant status and adjustment of status un- Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
Appellate Division, First Department, New York; member of the ABA Commission on Immigra-
thus overrides INA §§§ der a family-based pref- tion; board member of Volunteers for Legal Services and board member of New York Immigration
245(c)(2), (7) and (8), erence. A grant of TPS Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immigration
when the lack of a law- at any point in time, if Council and former chair of the Committee on Immigration and Nationality Law of the New
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ful status impedes an in- Justice Kagan’s opinion York City Bar Association. He is a frequent speaker and writer on various immigration-related
issues, including on ethics, and is also an adjunct professor of law at Brooklyn Law School, where
dividual’s ability to ad- is interpreted broad- he teaches a course entitled Immigration and Work. Mr. Mehta received the AILA 2018 Edith
just status. Under INA ly, should once again Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
§245(c)(2) an applicant render an applicant el- Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation
for adjustment of status igible for adjustment of in the immigration field. He has also received two AILA Presidential Commendations in 2010
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and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by
even if admitted (other status whether they are Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
than an immediate rel- filing an adjustment ap- Chambers Global 2019 in immigration law, among other rankings.

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