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IMMIGRATION JUNE 05, 2026 | The Indian Eye 41

justment. Through 245(k), Congress children of U.S. citizens, such as Mat- wise precarious system. By recasting has already been an indication that
created a targeted cure for certain ter of Cavazos and Matter of Ibra- adjustment as a rare exception and USCIS is attempting to water down
employment-based applicants with him, required a favorable exercise of steering applicants toward consular its message in response to immediate
limited status violations of 180 days discretion but also acknowledged that processing, the policy threatens to backlash, an implicit acknowledg-
or less from their last admission. Con- strong equities in those relationships tear that safety net away. The harm ment of how vulnerable the policy is
gress also affirmatively created and often warranted granting adjustment is magnified by existing conditions at under the statute and how disruptive
preserved dual-intent categories like where statutory eligibility and admis- U.S. consulates, where many posts al- it is likely to be for employers, work-
H-1B and L, which only make sense sibility were satisfied. These decisions ready struggle with long appointment ers, and families. A recent report on
if pursuing permanent residence, in- do not treat immediate-relative ad- queues, expanded security screening, X describes USCIS officials as sug-
cluding through adjustment, while in justment as rare “extraordinary” re- and unpredictable administrative gesting that those with applications
nonimmigrant status is an anticipated lief but as the expected mechanism processing. Forcing large numbers that “provide an economic benefit or
and legitimate use of the system. At Congress intended for uniting U.S. of cases that historically would have otherwise are in the national interest”
no point did Congress amend 245(a), citizens with close family. The me- adjusted domestically into these con- will be permitted to continue on their
245(i), or 245(k) to say that adjust- mo’s silence about that line of cases sular pipelines will almost inevitably current adjustment path, while others
ment in those contexts is “extraordi- underscores how selective its reliance worsen backlogs and delays, com- may be asked to apply for immigrant
nary” or a disfavored exception. When on precedent is. pounding the disruption. visas abroad depending on their indi-
Congress enacted INA section 204(j) Beyond the prevailing policy of The practical consequences for vidualized circumstances. Even this
portability through the American this administration, adjustment of employers will be substantial. If offi- “watering down” is contrary to INA
Competitiveness in the Twenty-First status under INA 245 is the linchpin cers, following the memo, routinely 245(a) and will result in more subjec-
Century Act (AC21), it also included of the modern legal immigration sys- decline to exercise discretion favor- tivity and denials. Creating a vague,
sections 104(c) and 106(a), specifi- tem for people already in the United ably in adjustment cases and instead extra-statutory category of cases that
cally to allow H-1B workers pursuing States. For employment-based appli- encourage or effectively require supposedly serve “economic” or “na-
permanent residence to extend sta- cants, AOS permits continued work consular processing, employers can tional interest” goals does not cure
tus beyond normal limits while their authorization and stable employment expect more frequent international the underlying legal defect. It simply
adjustment cases remained pending. relationships while multi-year immi- travel disruptions, extended peri- adds another layer of unconstrained
Those provisions reflect that adjust- grant visa backlogs clear, sparing both ods during which key employees are discretion. In addition to the new pol-
ment of status for dual intent H-1Bs employers and employees the disrup- stuck abroad awaiting immigrant vi- icy being driven by animus towards
and Ls is routine and normal, not an tion and risk of consular trips and ad- sas, higher legal and logistical costs, noncitizens, whether they are legal
extraordinary exception. ministrative processing abroad. For and greater uncertainty in workforce or not, it reflects sheer incompetence
The structure of 245 and related family-based applicants, especially planning and retention. These bur- given the disruption it will cause to
AC21 provisions thus shows a legisla- those with U.S. citizen spouses and dens will sit on top of the already-doc- businesses and families.
tive intent to use adjustment as a cen- children, adjustment is often the only umented consular constraints, In sum, INA 245 does not pre-
tral pathway for those present in the realistic way to avoid lengthy family including resource limitations and en- clude adjustment of status, and the
United States who meet detailed eli- separation during the green card pro- hanced social media and security vet- memo does not change the law. US-
gibility criteria, not as a marginal, al- cess. For noncitizens from countries ting, which have made visa processing CIS has always had discretion to ap-
most unattainable form of grace. By that have faced travel bans or other timelines increasingly unreliable. prove or deny and adjustment of sta-
insisting that the ordinary, statutorily entry restrictions, consular process- For individuals and families, par- tus application. Matter of Arai holds
authorized use of these pathways is ing may be effectively impossible or ticularly those in backlogged pref- that if there are no adverse factors
now disfavored “extraordinary” re- extremely risky. Those who leave may erence categories who are lawfully present, adjustment of status should
lief, the USCIS memo runs directly be subject to a visa refusal under INA employed and caring for U.S. citizen be granted as a matter of discretion.
against what Congress actually did in 221(f). In these circumstances, a US- children here, the memo threatens to Applicants may still file adjustment
INA 245 and AC21. CIS policy that treats AOS as disfa- strip away a critical stabilizing mech- of status applications, and respond
In the wake of the Supreme vored “extraordinary” relief threatens anism. A pending adjustment appli- to requests for evidence, if issued, re-
Court’s Loper Bright decision over- to leave many with no viable path at cation does more than just move a garding whether they merit the favor-
turning Chevron deference, this kind all. The US approves over 1 million case forward. It provides employment able exercise of discretion. We need
of aggressive agency reinterpretation people to become lawful permanents, authorization, travel permission, and to continue to evaluate how the US-
of “may” in INA 245(a) should be es- and about half of them apply through a degree of protection that is espe- CIS will adjudicate currently pending
pecially vulnerable. Under Chevron, adjustment of status. The policy cially vital for people who cannot adjustment of status applications
agencies received considerable lee- memo, if implemented will bar over safely or realistically return abroad and new applications. If there are
way to interpret ambiguous statutes. 600,000 people from getting green for consular processing because of arbitrary denials because USCIS has
Post-Chevron, courts will be far more cards through adjustment of status. travel bans, persecution risks, or se- begun to view adjustment of status
willing to ask whether an agency’s The memo’s approach is es- vere consular delays. Under a regime as “extraordinary” relief, applicants
reading is consistent with the statuto- pecially severe for applicants in that treats adjustment as an extraor- and their lawyers can challenge them
ry text and structure. A court looking long-backlogged categories who are dinary indulgence rather than an in- in federal court. Until then, adjust-
at 8 U.S.C. 1255 could reasonably already living and working lawfully tegral, congressionally designed com- ment of status still remains a viable
conclude that USCIS’s attempt to in the United States and raising U.S. ponent of the system, many families option as before and should not be
convert ordinary discretionary lan- citizen children. For these families, a will be forced into impossible choices foreclosed based on a USCIS memo
guage “may” into a requirement that pending adjustment application func- between prolonged separation and that unlawfully reinterprets the law.
adjustment be rare, “extraordinary” tions as a lifeline: it anchors work au- abandoning their pursuit of lawful
relief is not a permissible interpreta- thorization, travel permission, and a permanent residence altogether. * Damira Zhanatova is an Associate at
tion but a rewriting of the statute. The basic measure of stability in an other- Since the memo’s release, there Cyrus D. Mehta & Partners PLLC.
lack of notice-and-comment rulemak- ________________________________________________________________________________________________________________________________________________________________________________________________
ing for a shift this sweeping strength-
ens an Administrative Procedure Act Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta
challenge, because the memo func- & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
tions more like a substantive rule than mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
a minor interpretive clarification. Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
The memo is also incomplete in of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
its treatment of prior BIA case law. Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
While it leans on decisions like Mat-
ter of Blas to characterize adjust- Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
ment as an “extraordinary” remedy, on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
it omits reference to BIA decisions Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
that recognize the central role of ad- and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
justment for immediate relatives and immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
other core categories. For example, the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
BIA cases dealing with spouses and in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

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