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IMMIGRATION OCTOBER 16, 2026 | The Indian Eye 46
Matter of Ho Revisited:
Protecting Adjustment Applicants
in Removal Proceedings When
Visa Numbers Are Unavailable
BY CYRUS MEHTA AND guidance permitting em- removal proceedings before when adjustment is other- of Pinzon Rozo, 29 I&N
ployment-based adjustment a visa number becomes avail- wise approvable, the subse- Dec. 507 (BIA 2026). Pinzon
DAMIRA ZHANATOVA*
applicants to use the Dates able for final approval of the quent unavailability of a visa Rozo did not involve post-fil-
for Filing chart, even though adjustment application. For number should not defeat ing visa retrogression. The
he October 2026 Visa an immigrant visa is not cur- instance, an individual with the application. Instead, ad- respondent there had an
Bulletin created an
Tunusual opening for rently available under the Fi- a pending I-485 application judication should be paused approved SIJ petition, but
there was a nearly four-year
nal Action Dates chart. The
filed when the Dates for Fil-
until a visa number becomes
some EB-4 applicants, in- EB-4 final action date in the ing chart was current could available. The logic of Ho gap between his priority date
cluding Special Immigrant October 2026 Visa Bulletin still be detained while on a is therefore closely tied to and the currently available
Juveniles (SIJs), whose dates remains December 15, 2022. domestic flight within the whether visa availability is visa date, so the BIA held
for filing have advanced to That filing opportunity, how- United States. ICE has been the only remaining obstacle that the Immigration Judge
January 1, 2025. As a result, ever, does not shield a non- coordinating with TSA to to adjustment and whether erred in granting a contin-
these individuals may be el- citizen from DHS enforce- detain and charge as remov- no other issues remain to be uance to await a visa for an
igible to file Form I-485 un- ment actions or placement in able individuals with pending resolved. uncertain and lengthy pe-
der USCIS’s October 2026
I-485 applications on the The same principle ap- riod. Unlike Matter of Ho,
grounds that their initial pears in Matter of Briones, Pinzon Rozo did not involve
visa status has expired 24 I&N Dec. 355, 357 n.3 a visa-availability case, but
or, in the case of an SIJ, (BIA 2007), where the BIA, instead involved an I-360
that they entered with- citing Ho in footnote 3, stat- petition that had been filed
out inspection. ed that a respondent who had when visa dates were not
That is where Mat- a current priority date when current, with the beneficiary
ter of Ho, 15 I&N Dec. the adjustment application waiting for the priority date
692 (BIA 1976), be- was filed is not rendered in- to become current.
comes relevant. In Ho, eligible by subsequent visa That distinction mat-
the Board held that retrogression, although final ters for SIJ and EB-4 re-
where respondents were approval must be held in spondents who file during
eligible for adjustment abeyance. EOIR’s continu- a month like October 2026,
in all other respects, ance guidance likewise pro- when USCIS permits use of
and the sole reason they vides that cases filed when a the Dates for Filing chart,
could not obtain ad- visa was immediately avail- and who are later put into
justment was that visa able but later retrogressed proceedings, including after
numbers that had been should be held in abeyance. an ordinary domestic-travel
available when the ap- Federal case law has simi- encounter, before the Final
plications were filed lat- larly treated Ho as binding Action Date is current. It
er became unavailable, Board precedent that Immi- also matters where the appli-
the case should be held gration Judges and the BIA cant properly filed and visa
m of in abeyance rather than must at least confront when numbers later retrogressed
CYRUS D. MEHTA & PARTNERS PLLC denied outright. The retrogression is the only bar- before the Immigration
Judge is ready to adjudicate
rier to completion of adjust-
Board expressly applied
that principle in depor- ment processing. In Masih v. the application. The argu-
tation proceedings, re- Mukasey, 536 F.3d 370, 373 ment is not that filing an
jecting the notion that (5th Cir. 2008), the Fifth Cir- I-485 prevents DHS from is-
such protection disap- cuit reversed and remanded suing an NTA. Rather, once
pears simply because the a denial of a continuance on a properly filed adjustment
respondent seeks ad- abuse of discretion grounds application is pending and
justment before an Im- where the agency failed to visa-number unavailability is
migration Judge rather apply Matter of Ho. the sole remaining obstacle,
2 6th Floor than USCIS. Ho stands Matter of Ho can be Ho and Briones provide the
for the proposition that, distinguished from Matter strongest basis for asking
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