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IMMIGRATION DECEMBER 02, 2022 | The Indian Eye 39

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the control of the applicant or petition- requires the unitary counting of fami- deal on immigration reform. There is tifications were filed after April 1, 2012
er, and the Service finds the delay com- ly members. Even the Administration also an urgency to prioritize on a legis- are still caught in the backlogs and have
mensurate with the circumstances; [t]he could contradict Wang v. Blinken if it had lative solution for DACA recipients as it remained in H-1B status while their con-
alien has not otherwise violated his or chutzpah through a rule or policy memo is expected that the Supreme Court will temporaries born in other countries have
her nonimmigrant status; [t]he alien re- under the Brand X doctrine (thus over- uphold the lower courts that have found become US citizens. Making tweaks in
mains a bona fide nonimmigrant; and [t] ruling the case everywhere except in the that DACA is not authorized by the INA. existing policies such as extending the
he alien is not the subject of deportation DC Circuit), but this is hard to imagine Unless by some stroke of luck the lame 60-day grace period, issuing EADs based
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proceedings”. A nonimmigrant worker as it recently successfully contested the duck Congress can cobble together a deal on a more generous interpretation of
whose employer was unable to timely file plaintiff’s contention of unitary counting to bring relief to backlogged beneficia- compelling circumstances, and giving
a petition on his behalf due to a layoff in that case. Another legislative propos- ries based on the many proposals on the more discretionary authority to accept
could credibly assert that his uncertain al is to eliminate the per country limits, table, the Biden administration should untimely filings under 8 CFR § 214.1(c)
employment situation constituted ex- but even if that passes, there will still be focus on administrative solutions to (4) can provide some small amelioration
traordinary circumstances. If the layoff backlogs although not as terrible right bring relief to terminated nonimmigrant to terminated nonimmigrant workers,
was the result of a recession or general now which could be over a 100 years for workers, who stand to suffer the most in especially those who are caught in the
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economic difficulties, it should be de- Indian born beneficiaries. Of course, the face of layoffs and economic woes. never ending green card backlogs.
monstrable that the resultant delay of finding a legislative solution is easier said Existing Indian born H-1B workers (This blog is for informational purposes
filing the H-1B petition beyond the grace than done in a polarized Congress, which in the employment based green card and should not be viewed as a substitute for
period was not the fault of either the pe- will get even more polarized in 2023 backlogs who get terminated are far legal advice).
titioner or the beneficiary. By generously when the Republicans take control of the worse off than others. But for the back-
applying this discretionary authority, the House and the Democrats take control logs they may have already had their *Kaitlyn Box is a Senior Associate at
USCIS can assist nonimmigrants whose of the Senate. The GOP is too obsessed green cards or become US citizens. In-
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ability to seek a timely extension of status about border security before making any dian born beneficiaries whose labor cer- Cyrus D. Mehta & Partners PLLC.
is impacted by a termination. _________________________________________________________________________________________________________
Ideally, a legislative solution would Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
relieve the immense immigrant visa Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
backlog, which would prevent benefi-
ciaries of I-140 petitions from remaining mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
in a nonimmigrant visa status for years Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
until they can file adjustment of status of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
applications. Proposals for legislative Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
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solutions include the recapture of wast- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
ed visa numbers from previous years on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
and the allocation of additional visas to
backlogged categories. Although Wang Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
v. Blinken, No. 20-5076 (D.C. Cir. 2021), and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
a case we have discussed in a previous immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
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blog, previously struck the idea down, the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
Congress could assert that INA § 203(d) in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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