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IMMIGRATION SEPTEMBER 20, 2024 | The Indian Eye 45

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visa at a consular post or even during ad- a waiver before an Immigrant Judge. peatedly requesting USCIS to issue an ings. Historically, 8 CFR 212.3(a) and (c)
justment of status. See Matter of Agour, There is no form to file a § 237(a)(1)(H) NTA falls upon deaf ears. The reason has allowed for the filing of waivers un-
26 I&N Dec. 566 (BIA 2015). The waiver waiver. The IJ has discretion to grant or could either be that the DHS does not der INA § 212(c) with the USCIS. Under
also applies even if the misrepresenta- deny the waiver after taking into consid- have the resources to process NTAs, or § 203 of the Nicaraguan Adjustment and
tion was not willful such as if the noncit- eration all the favorable an adverse fac- it could be more cynical, which is that the Central American Relief Act (NACA-
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izen mistakenly received an immigrant tors. The initial fraud can also be consid- DHS does not wish to place them in re- RA), eligible individuals could apply for
visa after the petitioner died and is not ered as a factor in considering the waiver. moval proceedings so that they may then cancellation of removal administratively,
even charged under INA 212(a)(6)(C) See Matter of Tijam, 22 I&N Dec. 408 seek a benefit. As a result, noncitizens which got implemented under 8 CFR
(i) and instead under the more general (BIA 1998). If the waiver is granted and whose applications have been denied will §1240.66. Allowing administrative filings
INA 212(a)(7)(A)(i)(I) for lack of a val- removal proceedings are terminated, forever remain lawful permanent resi- of § 237(a)(1)(h) waivers would increase
id visa or entry document. See Matter of the applicant can get quickly naturalized dents and never be able to become US efficiency in the immigration system
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Fu, 23 I&N Dec. 985 (BIA 2006). This provided she met all the other require- citizens unless they can successfully chal- and provide a more humane approach
sort of innocent misrepresentation can ments for naturalization. lenge the denial of the N-400 application for individuals who have demonstrated
occur if the USICS adjusts an applicant The problem is that the USCIS these in federal court. eligibility as well as compelling equities
for permanent residence under an em- days seldom places noncitizens who have DHS may wish to consider promul- and humanitarian factors. It would also
ployment-based preference when the been denied naturalization based on not gating a rule that would allow noncitizens reduce the burdens on the already back-
final action date was not current. At the being admitted as lawful permanent res- to apply for §237(a)(1)(H) waivers ad- logged courts, allowing them to focus on
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naturalization interview, the applicant’s idents in removal proceedings. Even re- ministratively outside removal proceed- more complex cases.
N-400 can be denied because he was not ___________________________________________________________________________________________________________________________________
properly admitted as a lawful permanent Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
resident. It may also occur if a diplomat Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee;
who is subject to diplomatic immunity former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary Committee,
adjusts status to permanent residence Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of Volunteers
without submitting a waiver of diplomat- for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees
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ic privileges and immunities. of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the New York
If the noncitizen is placed in re- City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and is also an
moval proceeding, and has the requisite adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta received
qualifying relative, which is she must be the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011 Michael
Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has also
the spouse, parent, son, or daughter of a received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers
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citizen of the United States or of a law- in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers
ful permanent resident, she can request Global 2019 in immigration law, among other rankings.

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