Page 49 - The Indian EYE 092223

IMMIGRATION SEPTEMBER 22, 2023 | The Indian Eye 49

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in accordance with USCIS’s new pol- assert that the policy change consti- based on the prior policy because that I-140 under the relevant employ-
on the date that the visa, or in the since the visa became available (and to reopen. Simply go to your App Store or Play Store
tutes extraordinary circumstances they aged out before the parent’s pri-
ment-based preference.
icy.
The FAM still states that an ap-
While it is salutary that the DFF
ority date became current under the
and apply for adjustment of status al-
plicant’s “’CSPA age’ is determined though more than a year has passed FAD and they can file a late motion can be used to protect the age of the
child under the CSPA, USCIS needs
case of derivative beneficiaries, the the DFF has retrogressed, and the Finally, the DFF only protects to provide more clarification and har-
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principal applicant’s visa became USCIS’s stated policy guidance on the age under the CSPA if the USCIS monize the application of the DFF
available (i.e., the date on which the retrogression is at odds with this up- has indicated that the DFF can be with the FAD to protect the child’s
priority date became current in the date)? Based on the new policy, one used to file I-485 applications. For in- age under the CSPA.
Application Final Action Dates and can argue that the child was eligible stance, the USCIS for the September
the petition was approved, whichever to apply for adjustment of status 2023 Visa Bulletin has only permit- [This blog is for informational purposes
came later) (emphasis added)”. when the DFF became current, and ted filing of employment-based I-485 only and should not be considered as a
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Thus, an applicant outside the is now eligible to file a late, sought- applications under the FAD and not substitute for legal advice]
U.S. who pays an immigrant visa to-acquire I-485 under the extraordi- the DFF. Thus, the DFF will not be
(IV) fee may satisfy the “sought nary circumstances exception. able to protect the age of the child *Kaitlyn Box is a Senior Associate at
to acquire” requirement, but only The same logic should also apply under the CSPA even if an I-140 is Cyrus D. Mehta & PLLC.
based on the FAD becoming cur- to children whose I-485s were denied approved and the DFF is current for
rent. This uneven policy makes little _________________________________________________________________________________________________________
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sense, and the DOS should promul- Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
gate its own guidance in accordance Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
with USCIS’s policy to ensure that mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
the DFF can also be used to protect Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member of
the age of a child who processes for
a visa overseas. Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board
Additionally, some derivative of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality Law of the
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children may not have applied for New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics, and
adjustment of status with their par- is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and Work. Mr. Mehta
ent while the previous policy was in received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law and the AILA 2011
effect because only the DFF was cur- Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field. He has
rent and it would not have protected also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among the most highly regarded
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their age. lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and
Are these children now able to Chambers Global 2019 in immigration law, among other rankings.

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