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IMMIGRATION DECEMBER 31, 2021 | The Indian Eye 49

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binding leave alone persuasive on an- number could be issued legally giv- prived of the ability to demonstrate came current should certainly con-
other court. en the limits set by Congress. While that the visa is immediately available sider seeking judicial review of the
Prior to Nakka v. USCIS, there DOS did change the format in which under INA 203(h)(1)(A) for purpos- decision under the Administrative
was another challenge in Lin Liu it conveyed this information—post- es of protecting his or her age. Procedures Act. Alternatively, if the
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v. Smith, 515 F. Supp. 3d 193, 199 ing two charts to the Visa Bulletin The setbacks in Nakka v. USCIS child is placed in removal proceed-
(S.D.N.Y. 2021) to the policy in the rather than one chart—the substan- and Lin Liu v. Smith ought not dis- ings, the child’s I-485 can potentially
FAM requiring the use of the FAD tive policy did not change. The newly courage a plaintiff from continuing be renewed in removal proceedings
rather than the DOF to protect the added Dates for Filing chart reflects to challenge the inconsistent USCIS and he or she should be able to ar-
CSPA age. In this case too, Judge useful information for when appli- policy of allowing an adjustment ap- gue that neither the USCIS nor DOS
Koeltl opined that the policy in the cants can begin submitting materials plication to be filed under the DOF policy regarding the FAD protecting
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FAM is an interpretive rule rather to the NVC, but it does not reflect but not allowing CSPA age protec- the CSPA age is binding on an Immi-
than a legislative rule. The plaintiffs when visa numbers are legally avail- tion. One involves the findings and gration Judge. If the IJ affirms a de-
also claimed that the government able. Therefore, the plaintiff has not recommendations of a non-Article nial, the decision can be appealed to
unlawfully applied the updated Visa pleaded adequately that the defen- III magistrate judge, which can be the Board of Immigration Appeals,
Bulletin to the plaintiff retroactive- dants changed their policy with re- overruled by the district judge presid- and if the BIA reaffirms the IJ’s de-
ly. Here too the court dismissed the spect to tethering visa number avail- ing over the case. The other decision cision, a petition for review can be
claim because the court held that ability to when the visa number could involves a plaintiff who was applying filed in a Court of Appeals. Hence,
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DOS did not implement a new pol- be issued lawfully given country and for an immigrant visa at a US Consul- there are two avenues for judicial
icy, and therefore there was nothing category limits to visa allocation. ate overseas where the DOF does not review – through the APA in feder-
that could have been applied retro- Lin Liu v. Smith should not be have any significance. al district court or through a petition
actively to the plaintiff. Judge Koeltl considered the final word on chal- A child applicant whose I-485 for review in a court of appeals – that
made the following observation: lenging the USCIS CSPA policy. The was denied because the age could may be able to reverse the erroneous
The Visa Bulletin formerly con- plaintiff in this case was a derivative not be protected when the DOF be- USCIS policy.
tained one chart that listed the pri- child who was outside the US pro- ____________________________________________________________________________
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ority dates that were current for visa cessing her immigrant visa at the US Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Man-
number availability. DOS updated Consulate. Her father had received a aging Partner of Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member
the Visa Bulletin to include a second visa under the EB-5 but she had been of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Committee; former chair of
chart showing when applicants could denied the visa because she was not AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Dis-
file their applications with the NVC. able to demonstrate that her age had ciplinary Committee, Appellate Division, First Department, New York; member of the ABA
However, the Final Action Date been protected under the DOF and Commission on Immigration; board member of Volunteers for Legal Services and board
chart, not the Dates for Filing chart, not the FAD. However, Judge Koeltl member of New York Immigration Coalition. Mr. Mehta is the former chair of the Board of
reflects the information previously did not deal with the paradox that is Trustees of the American Immigration Council and former chair of the Committee on Immi-
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listed in the one-chart Visa Bulletin. applicable to adjustment applicants gration and Nationality Law of the New York City Bar Association. He is a frequent speaker
In other words, the Dates for Filing in the US. Unlike applicants pursing and writer on various immigration-related issues, including on ethics, and is also an adjunct
chart is the new feature in the Visa an immigrant visa at a US consulate, professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
Bulletin, not the Final Action Date they are allowed to file an adjustment Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing
chart. Both before and after the application under the DOF because the practice of immigration law and the AILA 2011 Michael Maggio Memorial Award for his
modernization of the Visa Bulletin, the USCIS has interpreted the DOF outstanding efforts in providing pro bono representation in the immigration field. He has also
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DOS used the same information to to signify that a visa number is imme- received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked
determine when a visa number be- diately available under INA 245(a) among the most highly regarded lawyers in North America by Who’s Who Legal – Corporate
came available, namely, when a visa (3). However, the child is then de- Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in
immigration law, among other rankings.

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