Representative Image / Canva

A new policy memo announced on May 22 by the US Citizenship and Immigration Services will have a very big impact on thousands of Indians who are in the US on non-immigrant visas and are waiting on Green Card queues for several years. 

The memo reiterates the fact that, consistent with long-standing immigration law and immigration court decisions, aliens seeking adjustment of status must do so through consular processing via the department of state outside of the country. Officers are directed to consider all relevant factors and information on a case-by-case basis when determining whether an alien warrants any extraordinary form of relief.

Also Read: Green Card applications to be made from home country: USCIS

“We’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 US temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances. This policy allows our immigration system to function as the law intended instead of incentivizing loopholes. When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the US illegally after being denied residency,” said USCIS spokesman Zach Kahler.

“Non-immigrants, like students, temporary workers, or people on tourist visas, come to the US for a short time and for a specific purpose. Our system is designed for them to leave when their visit is over. Their visit should not function as the first step in the Green Card process. Following the law allows the majority of these cases to be handled by the State Department at U.S. consular offices abroad and frees up limited USCIS resources to focus on processing other cases that fall under its purview, including visas for victims of violent crime and human trafficking, naturalization applications, and other priorities. The law was written this way for a reason, and despite the fact that it has been ignored for years, following it will help make our system fairer and more efficient.”

While broadly the new memo means that all foreigners seeking to adjust their immigration status from non-immigrant visas to Green cards will have to do so from outside the US, from their home countries, via the state department; experts and immigration lawyers are awaiting further details on the new rules.

Erickson Immigration Group, a full-service corporate immigration firm, noted on its website that while USCIS frames this memo as consistent with existing law, it represents a major shift in standard operating procedure. At the time of the memo’s publication, the agency had not indicated if or when applicants would be barred from filing an Adjustment of Status (AOS) within the United States.

“The memo also does not address USCIS’s stance on AOS applications already in progress,” the firm highlights. “The memo states that USCIS will carefully review the various pathways to discretionary adjustment of status, as well as discrete populations [applying for AOS]... in the context of the consistent and longstanding finding that adjustment of status is an extraordinary matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas.”

Currently, the timeline for these changes and the specific groups they will impact remain unclarified.

According to the memo, USCIS may issue category-specific policy guidance to help officers determine which applications warrant this ‘act of grace’ and which should be deferred to consular processing abroad. As Erickson Immigration Group explains, “It is unclear at this time whether USCIS would entirely restrict certain groups from adjustment of status, and, if so, on what basis.”

US immigration attorney Emily Neumann has shared a LinkedIn post breaking down the major policy shift indicated in the new USCIS memorandum with far-reaching implications for companies sponsoring H-1B or L-1 workers for permanent residence.

“The memo reframes adjustment of status (AOS) under Immigration and Nationality Act (INA) section 245 as ‘extraordinary’ relief and an act of ‘administrative grace’ that was not designed to supersede consular processing,” Neumann explains. “In plain English, USCIS is telling its officers that choosing the I-485 pathway over consular processing can, on its own, count as an adverse factor in their discretionary analysis. An applicant may now need to offset that factor with ‘unusual or even outstanding equities’.”

She notes that while the memo concedes dual-intent categories like H-1B and L-1 are unique, it immediately walks back that concession. In a critical footnote, USCIS asserts that maintaining dual-intent status is not enough by itself to warrant a favorable exercise of discretion.

“The legal premise does not hold up,” Neumann argues. She points out that Section 245(a) never states that adjustment is disfavored; it simply notes that the Secretary ‘may’ adjust status at their discretion—a standard structure Congress uses for many forms of relief that are never treated with extraordinary disfavor.

“More importantly, Congress has repeatedly amended section 245 to expand adjustment—including section 245(i), section 245(k), the LIFE Act, and the dual-intent provisions for H and L non-immigrants,” she adds. “The memo’s reading that AOS is a grudging exception cannot be squared with a statute Congress has consistently broadened. What this means in practice for sponsoring employers is that I-485 adjudications for employment-based beneficiaries will likely see more discretionary scrutiny, more requests for evidence (RFEs) focused on the totality of the circumstances, and more denials that read like equity contests rather than eligibility determinations.”

 

Discover more at New India Abroad.