USCIS recently issued a policy memorandum concerning Adjustment of Status, the process that allows eligible foreign nationals to apply for lawful permanent residence (a Green Card) while remaining in the United States.
The memorandum has generated concern because it suggests that USCIS may apply greater discretion when reviewing certain Adjustment of Status applications. Although USCIS describes the guidance as a clarification of existing law, many questions remain regarding how it will be applied in practice.
What Is Adjustment of Status?
Adjustment of Status allows eligible foreign nationals to obtain lawful permanent residence without leaving the United States.
The alternative process is known as consular processing, which requires the applicant to apply for an immigrant visa at a U.S. embassy or consulate abroad.
Many foreign nationals prefer Adjustment of Status because it allows them to remain with their families, continue working, and avoid the risks associated with departing the United States while an immigration case is pending.
Adjustment of Status is commonly used in both family-based and employment-based immigration cases.
What Does the New Guidance Mean?
The memorandum suggests that USCIS may place greater emphasis on discretionary factors when reviewing Adjustment of Status applications.
Among the issues discussed are prior immigration violations, including overstays and failures to maintain lawful immigration status.
This does not mean that Adjustment of Status is no longer available. However, it does suggest that some applicants may face additional scrutiny when USCIS reviews their case.
At this time, it is unclear how broadly the policy will be applied or whether it will affect applications that have already been filed.
Applicants may review the USCIS policy memorandum and related guidance directly through the U.S. Citizenship and Immigration Services (USCIS) website.
Who May Be Affected?
The guidance may affect:
- Family-based Green Card applicants
- Employment-based Green Card applicants
- Individuals who have overstayed a visa
- Applicants with prior immigration status violations
Many employment-based applicants, including those pursuing EB-1, EB-2, and EB-3 Green Cards, rely on Adjustment of Status to obtain permanent residence while continuing to live and work in the United States.
As a result, any change in how Adjustment of Status applications are reviewed could affect a significant number of foreign nationals and their employers.
Conclusion
The full impact of the USCIS memorandum remains unclear.
Applicants should be aware that USCIS may apply greater scrutiny to certain Adjustment of Status applications moving forward. However, the agency has not announced that Adjustment of Status is unavailable, nor has it provided clear guidance regarding how all pending applications will be handled.
As with many immigration policy changes, additional clarification may be issued in the coming months.
Applicants with pending Adjustment of Status applications, or those considering filing for a Green Card, should seek legal advice before making decisions regarding travel, consular processing, or their immigration strategy.
At Keamy Tavares & Associates, we assist clients with family-based immigration, employment-based immigration, Adjustment of Status applications, and consular processing matters.
If you have questions regarding a pending Green Card application or Adjustment of Status case, contact our office for guidance.