The US Citizenship and Immigration Services (USCIS) issued a sweeping policy memo on May 21 that could make it significantly harder for hundreds of thousands of skilled workers.
The memo, PM-602-0199, gives USCIS officers revised guidance that could potentially affect millions of pending adjustment of status (AOS) applications. AOS is the process by which a foreign national already in the US applies for permanent residence from inside the country, skipping the consular interview abroad.
USCIS spokesman Zach Kahler told reporters the day after the memo was issued that “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.”
Read more: DHS green card policy update: What changed and why there’s confusion
Changes in the AOS: Strict discretion
AOS is the last step in the U.S. green card application process for foreign nationals who are already in the country.
AOS is an essential tool for employers since it enables valued workers to finish the green card application process without the hassle and danger of traveling abroad and dealing with consular procedures.
However, in the new update, the memo instructs USCIS officers to treat adjustment of status as a matter of “discretion and administrative grace,” not as an automatic right.
No new legislation is introduced in this memo. Instead, it reaffirms that AOS has always been discretionary and then gives officers instructions to consider all pertinent factors more thoroughly when making decisions about applications.
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Who is most exposed and affected?
The memo’s impact falls unevenly across visa categories. The distinction that matters most is whether an employee holds a dual intent visa.
Dual intent means a visa holder is legally permitted to simultaneously hold a temporary non-immigrant status and pursue permanent residence in the United States. US immigration law permits holders of H-1B and L-1 visas to have dual intent. This is acknowledged in the memo.
The most obvious example is H-1B and L-1 holders, as the law has long acknowledged that they may come to work with the intention of staying. The document does not dispute this; in fact, it recognizes dual intent as compatible with modification.
Non-dual intent visa categories may be more specifically targeted.
TN, E-3, F-1 OPT, and J-1 visa holders entered the country with the explicit or implicit understanding that they would leave when their permitted time was up. Citing Congress’s intention that nonimmigrants should leave the nation rather than seek permanent residence from inside, the memo seems to specifically target this category.
What is scrutinized by the USCIS officers?
USCIS officials are being told to consider a certain set of variables when determining whether to grant an application for an adjustment of status, based on advice from immigration attorneys who have read the memo and are already seeing it used in the field.
These include:
1. Immigration law infractions or terms of a previous visa status
2. Fraud or making fraudulent claims to USCIS or any other government organization
3. Conduct that does not align with the intended use of the visa status
4. Staying in the United States after a permitted stay has concluded
5. Applying for AOS from the US when it was possible to apply for AOS through consular processing overseas
