According to a Policy Memorandum (PM) released by the U.S. Citizenship and Immigration Services (USCIS) earlier today, adjustment of status (AOS) applications are adjudicated in an exercise of discretion and may only be approved in “extraordinary circumstances.” In enacting this new policy, USCIS is limiting the availability of foreign nationals to obtain lawful permanent resident (“LPR”) status while inside the United States, and compelling them to go “through consular processing via the Department of State outside of the country.” This announcement refers to AOS as an “extraordinary form of relief” and directs USCIS officers to consider “all relevant factors and information on a case-by-case basis” before approving such applications in an exercise of “discretion and administrative grace.”
Objective of New PM
The PM does not change the underlying law (INA § 245(a)) for AOS but materially impacts how USCIS adjudicates AOS applications. An application for AOS is the last step in the process for nonimmigrants who are physically present in the United States and meet admissibility criteria to adjust their status to LPR status (aka “green card”) on a legal basis such as qualifying family relationship, employer sponsorship, or eligible EB-5 investment . The other pathway to obtain LPR status is to apply for an immigrant visa at an appropriate U.S. consular post outside the United States. This process, referred to as “consular processing” or “immigrant visa processing,” is administered by the Department of State. The PM characterizes consular processing as the ordinary path to obtain LPR status and AOS as the pathway that can only be granted in discretion in “extraordinary circumstances.”
New Standard of Adjusting AOS Applications Under New PM
The PM instructs officers “to consider all relevant factors and information in the totality of the circumstances in exercising that discretion,” to essentially weigh both the positive equities and adverse factors in determining whether approval of AOS would be appropriate.
The absence of adverse factors, such as the lack of a criminal record, would not be considered “unusual” or “outstanding” equities. Included among the factors to be taken into consideration: any violations of immigration laws, previous instances of fraud or false statements given to consular officers or DHS officials when applying for a visa, admission or parole, as well as any conduct inconsistent with the foreign national’s nonimmigrant status at the time of entry. Of particular note is that USCIS officers are directed to consider the applicant’s “failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart,” especially when such failure is connected to their “intention to reside permanently in the United States and that alien could have achieved that goal through the normal immigrant visa process.” In a footnote, the PM indicates that maintaining lawful status in a “dual intent nonimmigrant category” – which refers to H-1B and L-1 – “is not sufficient, on its own, to warrant a favorable exercise of discretion.”
Adjudicators are also instructed to weigh positive factors, specifically family ties, U.S. immigration status and history, moral character, and “any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.” Any denial based on an unfavorable exercise of discretion “must include an analysis containing the positive and negative factors considered,” along with an explanation why the negative factors outweighed the positive factors.
Next Steps for AOS Applicants
The PM raises many unanswered questions. It indicates that USCIS may later carve out “exceptions for certain categories” with further policy guidance being issued “specific to certain adjustment of status categories or discrete populations of aliens” to assist officers identifying applications that “may or may not warrant this act of grace and exception to the regular consular process.” Foreign nationals considering filing for AOS should confer with experienced counsel regarding how the PM impacts their eligibility for AOS based on specific circumstances, and whether consular processing may be the better option. As the scope and application of this new policy remains fluid, we will continue to monitor all communications from USCIS for additional statements and instructions. Given this sudden change in benefit adjudications without going through the Administrative Procedures Act, disregard of longstanding precedents holding that AOS should ordinarily be granted absent significant adverse factors, and Congress’s prior statements that allowing certain employees to remain in the United States to obtain LPR status limits disruptions to “projects and American workers,” impact litigation might follow. SGG will provide updates as new developments occur.
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