USCIS Issues Policy Guidance Regarding Adjustment Of Status Applications

According to a new policy memorandum issued by the U.S. Citizenship and Immigration Services this week, individuals who are in the United States temporarily and applying for lawful permanent residence (commonly referred to as a “Green Card”) may need to return to their home country to do so. This is in stark contrast with the commonly available path to remain in the U.S. to live and work while the Green Card application is reviewed and adjudicated. 

This memorandum signals a significant policy shift that will likely lead to greater scrutiny of applications, increased risk of denials, and more applicants being directed to pursue immigrant visas through U.S. consulates abroad.

What is Adjustment of Status and How Does This New Policy Affect the Process?

Federal law¹ currently allows certain eligible noncitizens who are physically present in the United States to apply for a Green Card without returning to their home country when an immigrant visa is available to them. This process, known as “adjustment of status,” is an alternative to applying for permanent residence through a U.S. Department of State consulate abroad (“consular processing”). Under this decades-long approach, many individuals in the United States on temporary visas (e.g., temporary workers, tourists, and students) could apply for, and eventually receive, a Green Card without leaving the country. But USCIS’s new framework means that adjustment of status may no longer be an automatic option, and applicants will be heavily scrutinized. Officers can deny cases even if an applicant has a clean record and technically qualifies for adjustment of status under the law.

With this policy memo, USCIS officers are now instructed to remember that applying for a Green Card within the United States is a matter of “extraordinary discretionary relief” from consular processing and an “act of administrative grace.” In simpler terms, those who apply for a Green Card from within the United States will face pushback from USCIS and will likely be directed to pursue their Green Card through consular processing instead.

There are immediate practical challenges to this requirement, including long processing times and uncertainty about visa appointment availability. At the time of this client alert, the U.S. State Department has indefinitely stopped immigrant visa processing for nationals from 75 countries (also commonly referred to as the “travel ban”). Other consulates abroad have also paused visa services due to the conflict with Iran.

What Should I Do?

Now, more than ever, applicants should expect greater scrutiny of their Green Card applications. USCIS’s policy directs officers to “weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor” to determine whether an individual warrants a favorable exercise of discretion to adjust their status. This includes representations made to USCIS or consular officers when applying for prior visas. These factors need to be carefully documented, as even the strongest immigration case will be scrutinized. Individuals considering filing a Green Card application or with a pending Green Card application should consult immigration counsel.

Footnote

1. INA § 245(a).