Just as the Memorial Day holiday weekend was beginning, USCIS, in its typical practice of Friday afternoon bad news delivery, released a policy memorandum, in which it suggested that the adjustment of status process through which many individuals apply for lawful permanent resident status (green cards) would be curtailed and that most people would need to complete the green card process at the U.S. consulate or embassy in the their home country. (The consular processing step involves a trip abroad on short notice and then a few weeks there for a medical exam and visa interview.) Similar to other such drastic changes we’ve seen coming from the administration’s prior four years and current term, both the news release and policy memo were short on logic and even less so on the law. It’s therefore far too early to predict how USCIS will interpret and implement the policy memo.
Aside from all the logical and legal shortcomings of the press release and policy memo, what is clear is that the memo acknowledges the long-standing legal framework for the adjustment process while stating that it “may provide policy guidance” to instruct officers in reviewing whether someone qualifies for adjustment of status. The policy memo strongly suggests that any irregularity in one’s immigration history would require consular processing. It also acknowledges the so-called “dual intent” visa categories, such as H and L, which specifically allow one to work on a short-term visa while pursuing lawful permanent resident status through adjustment of status.
To be sure, USCIS for decades has confirmed that adjustment of status is a discretionary procedure. That much is correct. What the new policy memo does is cherry-pick old case law and egregious examples to argue that adjustment of status should be available only in limited circumstances.
Until there is more guidance with specific examples of who might not qualify for adjustment of status, my opinion is that it’s still possible to submit adjustment applications after a careful, case-by-case review to ensure there is no problematic immigration history, such as status violations or unauthorized employment.
In the meantime, I encourage you to contact your representatives and senators in Washington to express your concerns about how this is just one of many harmful immigration policies the administration is pursuing. Make your voice heard.