U.S. Citizenship and Immigration Services (immigration office) released a sweeping policy memo on May 21 that could make life more difficult for hundreds of thousands of skilled workers.
Memorandum PM-602-0199 provides USCIS officials with revised guidance that could impact millions of pending adjustment of status (AOS) applications. AOS is a process for foreigners already in the United States to apply for permanent residence from home, skipping interviews at foreign consulates.
“Aliens who are temporarily in the United States and want a green card must return to their home country to apply, unless there are extraordinary circumstances,” U.S. Citizenship and Immigration Services spokesman Zach Kahler told reporters the day after the memo was released.
Read more: DHS Green Card Policy Update: What’s Changed and Why There’s Confusion
Changes to AOS: Strict discretion
The AOS is the final step in the green card application process for foreign nationals already in the United States.
The AOS is an important tool for employers because it enables valuable workers to complete the green card application process without the hassle and danger of traveling abroad and dealing with consular proceedings.
In a new update, however, the memo instructs USCIS officials to treat adjustment of status as a matter of “discretion and administrative grace” rather than an automatic right.
No new legislation is introduced in this memorandum. Instead, it reiterates that the AOS is always discretionary and then instructs officers to more thoroughly consider all relevant factors when making an application decision.
Read more: Why a conservative US senator wants to solve India’s green card crisis
Who is most affected?
The memorandum affects different visa categories unevenly. The most important difference is whether the employee holds a dual-intent visa.
Dual intent means that the visa holder is legally allowed to simultaneously hold temporary nonimmigrant status and seek permanent residence in the United States. U.S. immigration law allows H-1B and L-1 visa holders to have dual intent. This was acknowledged in the memo.
The most obvious examples are H-1B and L-1 holders, as the law has long recognized that they may come to work with the intention of staying. The document does not dispute this; in fact, it acknowledges that dual intent is compatible with modification.
The non-dual intent visa category may be more targeted.
When TN, E-3, F-1 OPT and J-1 visa holders enter the country, they expressly or implicitly indicate that they will leave when their allowed time expires. The memo, citing congressional intent that nonimmigrants should leave the country rather than seek permanent residence from within, appears to specifically target this category.
What will USCIS officers review?
USCIS officials were told to consider a range of variables when deciding whether to approve an adjustment of status application, based on the advice of immigration attorneys who have read the memo and have used it in the field.
These include:
1. Violation of immigration laws or terms of previous visa status
2. Fraud or submit fraudulent claims to USCIS or any other government organization
3. Behavior inconsistent with the purpose of the visa
4. Remain in the United States after the period of stay allowed
5. Apply for an AOS from the United States when it is possible to apply for an AOS through overseas consular processing
