Today, the U.S. Citizenship and Immigration Services (USCIS) announced a policy revision disfavoring obtaining permanent residency through "adjustment of status" within the U.S. as opposed to applying for permanent residency through the immigration visa process at a U.S. consulate abroad. In reviewing eligibility for adjustment, USCIS officers are directed to treat the adjustment process as an "extraordinary discretionary relief to the regular immigrant visa process" as an "act of administrative grace," requiring officers to consider the totality of the circumstances in deciding whether the applicant is suitable for permanent residence and if approval of the adjustment is in the best interest of the United States. If you have a pending adjustment application or are planning to file an adjustment application, there are steps you can and should take.
Applicants otherwise legally eligible for adjustment should include with their adjustment application evidence of the positive factors USCIS considers in its discretionary decision, including compliant immigration history, family ties, serious medical conditions, connections to the community, length of residence in the U.S., U.S. military services, tax payment history, community services, positive purposes in the U.S., good moral character, and any other factors to offset any negative factors. Negative factors identified in the memo include the very fact of seeking to obtain permanent residence within the U.S. rather than from outside the U.S.
Applicants with pending adjustment applications should seek to "interfile" supplementary evidence of positive discretionary factors.
Applicants should continue to maintain compliance with the nonimmigrant status (or parole) they had when they initially applied for adjustment and should consider applying to extend such status if possible while their adjustment application is pending. The USCIS memo calls into question whether USCIS will favorably adjudicate such nonimmigrant extension applications, other than those for the "dual intent" categories such as H-1B or L-1, purely because the person is an intending immigrant. The memo states that even "maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion."
Adjustment applicants should anticipate that USCIS may deny their application. They should plan for the possibility of applying instead for an immigrant visa. Those unable to continue to maintain a nonimmigrant status throughout the pendency of an adjustment application may not be able to remain in the U.S. in the event of adjustment denial.
The memo ignores that Congress enacted Section 245(k) of the Immigration and Nationality Act (INA) that allows persons in certain immigrant categories with certain immigration violations nevertheless to be legally eligible for adjustment. Applicants using section 245(k) could be particularly susceptible to a discretionary denial of their adjustment of status. The memo also ignores the fact that INA sections 245(a) & (c) specifically allow for adjustment of status for immediate relatives (the spouse, parent, or unmarried minor children of U.S. citizens), even if they overstayed their visas.
Some applicants who previously had accumulated 180 days of "unlawful presence" before applying for adjustment could trigger three or ten years of inadmissibility upon their departure from the U.S. They will need to evaluate eligibility for a waiver of such inadmissibility based on extreme hardship to a U.S. citizen or permanent resident spouse or child. It is important that anyone departing the U.S. to obtain an immigrant visa abroad through a consulate, understands the risks and possible outcomes before departing.
If USCIS denies adjustment in discretion, the person could choose not to depart and instead to be placed in removal proceedings, where they can renew their application for adjustment before an immigration judge who can consider adjustment from a total perspective. It is likely this new policy will be challenged in court, but until it is either stayed or overturned, adjustment applicants should plan accordingly and discuss the risks of applying with a competent immigration attorney. The considerations are quite complex and should be reviewed carefully with competent immigration counsel.
For more details: U.S. Citizenship and Immigration Services Will Grant 'Adjustment of Status' Only in Extraordinary Circumstances | USCIS
Our Immigration Team is prepared and well-equipped to guide, assist, and represent employers through this process. If you have any questions or would like more information, please contact a member of Baker Donelson's Immigration Team.