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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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