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IMMIGRATION OCTOBER 16, 2026 | The Indian Eye 47

the court to continue proceedings or reading for respondents is that this counsel should argue for abeyance Under Ho, when visa-number
hold the application in abeyance. situation is closer to Ho and Briones or a continuance under Ho and Bri- unavailability is the only obstacle,
Although this discussion arises than to Pinzon Rozo, because the ones and distinguish Pinzon Rozo as the case should be held in abeyance
in the EB-4 context, the same rea- problem is later visa-number unavail- a case involving a priority date that until visa availability returns rather
soning may extend to EB-2 and EB-3 ability at the time of adjudication, not was never close to becoming current than denied on that basis. Counsel
beneficiaries who timely filed I-485 an initially speculative wait for visa in the first place. can argue that this approach is con-
applications under the Dates for Fil- eligibility. Where a respondent properly sistent with the Board’s longstand-
ing chart and were later placed in Matter of Ho is newly important filed for adjustment, is eligible in ing treatment of visa retrogression
removal proceedings after their un- in the October 2026 EB-4 context all other respects, and later cannot and is particularly appropriate
derlying H-1B or L-1 status expired. and in other contexts in which an obtain final approval solely because where the respondent complied
Such applicants may have reasonably I-485 application was filed with an visa numbers are unavailable, coun- with all legal requirements and vi-
relied on the lawful period of stay au- I-130, I-140, I-360, or I-526 petition sel should argue for abeyance or a sa-number unavailability arose only
thorized by their pending adjustment when the Dates for Filing chart was continuance under Ho and Briones after the adjustment application
applications and on employment current. Where the applicant was el- and distinguish Pinzon Rozo as a was properly filed.
authorization issued through those igible to file, and the only thing pre- case involving a priority date that * Damira Zhanatova is an Associate at
applications, only to be charged by venting approval is the subsequent was never close to becoming current Cyrus D. Mehta & Partners PLLC.
ICE with removability because their unavailability of a visa number, in the first place.
nonimmigrant status had lapsed. For ________________________________________________________________________________________________________________________________________________________________________________________________
these respondents as well, where the Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
adjustment application was properly & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
filed and visa-number unavailability mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
is the only remaining impediment Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
to final adjudication, counsel should
invoke Ho and Briones in seeking a of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
continuance or abeyance rather than Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
denial of adjustment. Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
The harder question is whether on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
an Immigration Judge must accept Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
that argument when the case was and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
filed with USCIS under the Dates
for Filing chart, but the Final Action immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
Date is not current by the time the the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
court addresses adjustment. The best in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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