USCIS Issues New Policy Memorandum on Adjustment of Status

US Citizenship and Immigration Services has issued a policy memorandum reminding USCIS officers who adjudicate adjustment of status applications that the granting of such applications is discretionary and that the adjustment of status process is not “designed to supersede the regular consular processing of immigrant visas.”

The May 21 memorandum, which stated that this has been the “consistent and longstanding approach” of USCIS to the adjustment of status process, has raised widespread concerns that USCIS is indeed shifting away from granting adjustment of status to otherwise eligible applicants and will require green card applicants to apply for immigrant visas from outside the United States.

BACKGROUND

Once a foreign national who is seeking lawful permanent residence (or a “green card”) in the United States has an approved immigrant visa, there are two routes to completion of the green card process. One route is through consular immigrant visa processing. This involves an interview for an immigrant visa at a US consular post outside of the United States, typically in the applicant’s home country. This process can take several months to several years depending on backlogs and availability of immigrant visa appointments at consular posts abroad.

The other route is through a process known as adjustment of status, or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS to complete the green card process while remaining in the United States.

This process, which has existed since the 1952 incarnation of US immigration laws and was significantly broadened by the US Congress in 1960, is generally available to most employment-sponsored applicants who are lawfully present in the United States in a temporary visa status (such as H-1B, L, or another temporary visa status) after having been inspected and admitted by Customs and Border Protection, as well as certain family-sponsored applicants.

Certain other applicants for immigration relief are permitted to file to adjust status to lawful permanent residence, such as successful asylum applicants.

The adjustment of status process offers several benefits, including the ability to remain lawfully in the United States during adjudication as well as interim employment authorization for the principal applicant and family members. According to publicly available data, the vast majority of applicants for permanent residence through employment and family-sponsored routes complete the green card process through an adjustment of status process.

Historically, USCIS officers have routinely granted adjustment of status to applicants unless there is a basis to determine that the applicant is ineligible to adjust status or is inadmissible to the United States based on one of the inadmissibility grounds set forth in the immigration laws.

WHAT DOES PM-602-0199 SAY?

The new policy memorandum takes the position that “Congress, in establishing the nonimmigrant admission and parole processes, made it clear that aliens are expected to depart the United States when the purpose of their admission or parole has been accomplished” and that “[g]enerally, when a nonimmigrant or parolee fails to depart as required and instead seeks adjustment of status, it contravenes these Congressional expectations.”

While the memorandum acknowledges that certain foreign nationals in nonimmigrant visa categories such as the H-1B and L categories are permitted to have “dual intent” (the intent to both come to the United States temporarily and also seek permanent residence here), the memorandum indicates that all applicants for adjustment of status should understand that the granting of adjustment is discretionary and the burden of proof to show that an adjudicating officer should exercise discretion favorably rests on the applicant.

The memorandum also states that “the statutory scheme suggests that Congress expects aliens paroled into the United States or admitted into the United States as nonimmigrants to depart rather than pursue adjustment of status.” The memorandum appears to view adjustment of status as a “contravention” of this expectation, discusses applicants who use it to “attempt to avoid the ordinary consular immigrant visa process, usually accompanied by their violation of our immigration laws,” and suggests these are factors that applicants may need to “offset . . . by a showing of unusual or even outstanding equities.”  

However, the memorandum adds that the “absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.” The memorandum then instructs officers who are adjudicating adjustment of status applications to “consider all relevant factors and information in the totality of the circumstances” in exercising their discretion.

The memorandum provides the following examples of violations that could result in a discretionary denial of an adjustment application:

• Violations of US immigration laws or the conditions of any immigration status held
• Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency
• Whether a foreign national’s application for admission or parole violated the laws, regulations, and policies in place at the time
• Any conduct of the applicant after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers when applying for a visa, admission, or parole

The memorandum reminds officers that they must “consider and weigh all the relevant evidence in the record, taking into account the totality of the circumstances to determine whether the alien is suitable for permanent residence and if approval of the alien’s adjustment of status application is in the best interest of the United States,” also taking into account positive factors such as “family ties, immigration status and history, the applicant’s moral character, and any other relevant factor” that may weigh in favor of the positive grant of discretion.

IMPACT OF PM-602-0199

Under Section 245(a) of the Immigration and Nationality Act, a grant of adjustment of status has always been a matter of discretion. However, PM-602-0199 has raised considerable concern for a number of reasons.

As a preliminary matter, the title of the memorandum, Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process, in which adjustment of status is referred to as a form of “extraordinary relief,” and the language in the memorandum that couch adjustment as a way to avoid consular processing signals a significant and unexpected shift from USCIS’s longstanding approach to adjustment, whereby applications have been routinely approved unless there is a legal basis to deny.

Moreover, USCIS public statements made at the time of the memorandum’s release sent a message that most nonimmigrants lawfully in the United States would be required to return home to complete the green card process.

In a statement made to the press on May 22, USCIS senior advisor and spokesperson Zach Kahler stated “[w]e’re returning to the original intent of the law to ensure aliens navigate our nation’s immigration system properly. From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”

However, later that same day, Mr. Kahler made the following public statement: “While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances.”

Given the above, it is unclear at present how USCIS will implement this new guidance, whether the announcement truly constitutes a marked change from historical practice, and how it will impact pending adjustment of status cases. USCIS may issue additional guidance in the coming weeks that will indicate how the agency plans to implement this memorandum.

Morgan Lewis is tracking these actions closely and will provide updates should there be additional developments.

In the interim, it is important to keep the following points in mind:

• The law and regulations governing adjustment of status have not changed, and those who were and are statutorily eligible to file for adjustment of status remain so.
• USCIS typically does not deny cases outright; generally, the agency will issue a Request for Evidence or Notice of Intent to Deny providing applicants an opportunity to submit additional probative evidence of eligibility for an immigration benefit. This is what we expect the agency to do in cases for which an officer requires additional information to determine whether an exercise of favorable discretion is warranted.