The US Citizenship & Immigration Service (USCIS) has issued a new policy memorandum (memo) entitled, “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Process.” This USCIS policy memo indicates that the agency is now taking the position that most green card applicants should pursue their green card via consular processing with the U.S. Department of State at U.S. Embassies or Consulates abroad, rather than applying for their green cards through the adjustment of status process in the United States. Furthermore, for those applicants filing for their green cards in the United States, USCIS is providing their Officers with new guidance on how to review and decide such applications.
A USCIS policy memo cannot change the underlying law supporting green card applications filed in the United States. Instead, this USCIS memo serves as a change in the guidance for Officers reviewing and deciding adjustment of status cases. This new USCIS guidance specifically emphasizes that adjustment of status is now to be considered as a form of extraordinary relief. This guidance requires Officers evaluating a green card application to consider all relevant factors, including family ties, moral character, and any violations or acts of fraud before, during, or after applying and obtaining immigrant status in the United States. This new memo indicates that USCIS may be targeting individuals who are visa overstays or entered the United States on a single intent visa (for instance, B-1, F-1, or TN) and are applying for their green cards in the United States. We believe there are still outstanding questions on how this policy would impact applicants with a dual intent visa (i.e. H-1B, L-1) who are applying for adjustment of status in the United States. Regardless, this USCIS memo suggests that any adjustment of status applicant should affirmatively present their relevant positive factors when submitting their application in the United States.
In the coming weeks, we expect to see further clarification and details from USCIS on this policy memorandum, as well as updated information on how the agency will be implementing this policy. We also anticipate significant pushback in the form of litigation in response to this USCIS policy memorandum and will provide further updates as available.
Immigration at Work 