The U.S. Citizenship and Immigration Service issued a sweeping policy memorandum (PM-602-0199) emphasizing that Adjustment of Status (AOS) to lawful permanent residence is not an entitlement, but an "extraordinary" discretionary benefit. While the memo does not cancel AOS, it instructs officers to apply heightened scrutiny and heavily weigh positive and negative discretionary factors before approving a green card application. Adjustment of Status and Consular Processing (CP) are the two main ways a person applies for U.S. lawful permanent residence (a “green card”). The key difference is where the applicant is physically located when applying and where the final interview/issuance happens.  Adjustment of Status is filed and processed within the United States by the USCIS.  Consular Processing is processed at a U.S. Consular Post outside the United States - typically in the applicant's home country.

Current AOS Policy

Under current law, regulations, policy and practice, people generally may apply with USCIS to adjust status from within the U.S. 

Of course, to be eligible for AOS, a person must have been inspected and admitted at entry, maintain their status (with some exceptions), and otherwise be “admissible.”  Inadmissibility means there is something directly related to the person that makes him or her “inadmissible,” such as certain criminal, immigration, or security issues. If eligible, AOS lets applicants get a green card without leaving the U.S., instead of applying for an immigrant visa at a U.S. consulate abroad. 

Some applicants must, or choose to, apply for their green card through a U.S. consulate abroad. This is called “consular processing” and a decision is made after an in-person interview at the U.S. Consulate.  U.S. Consulates are run by the U.S. Department of State (DOS), not the USCIS. 

While Consular Processing can sometimes be advantageous, most people already in the United States prefer to process via AOS.  Consular Processing is subject to increased backlogs and delays.  In addition, per the current Administration's proclamations, the immigrant visa processing is suspended for people from 75 countries.

New AOS Policy

Despite that AOS has been the standard course of action since this attorney started practicing law in the mid-1980's, USCIS now says AOS is extraordinary relief.  USCIS claims the AOS process lets people skip the usual immigrant visa process at consulates and therefore should be granted only in limited cases. USCIS emphasizes that AOS is not meant to replace DOS consular processing. USCIS will treat AOS as a discretionary choice and an “extraordinary act” of administrative grace.

According to the Memo, Officers must look at the totality of the circumstances when deciding an AOS case. This means the USCIS examiner will weigh factors such as immigration violations (for example, overstays or unauthorized work), compliance with visa or parole conditions, fraud, misrepresentation, or false statements, conduct that conflicts with the stated purpose of entry, and moral character and equities (including family ties and humanitarian factors). Under the memo, negative factors—especially not departing the U.S. when expected —may weigh heavily against approval.

The memo also says U.S. immigration law generally expects people to leave the U.S. and complete immigrant visa processing abroad, even if they are in a temporary status that allows “dual intent,” such as H-1B/H-4 or L-1/L-2. Dual intent means a person can hold a temporary work status while also intending to become a permanent resident. USCIS indicates it will shift its AOS review from “approve unless inadmissible” to “deny in favor of consular processing unless extraordinary and adverse factors justify AOS in the U.S.”

What's Next?

AOS presently remains a pathway to greencard.  Neither the law  nor the regulations have changed.  The Policy Memorandum is this Administration's current “interpretation” and “application” of the existing law and regulations.  I anticipate we will soon see litigation challenging the application of the policy.

USCIS has not said applicants will no longer be able to apply for AOS.  It has not said how the memo will affect AOS cases already pending, but since the new policy was announced, we are seeing the USCIS ask questions during immigration interviews relating to the policy.  We must now presume the policy will be applied to already filed AOS cases. 

USCIS says it will review different AOS pathways and specific groups of noncitizens and may issue guidance for certain categories or groups to help officers identify which cases should or should not be processed inside the U.S.

Each pending and new AOS case must be evaluated based upon the information at hand and any further guidance issued by USCIS. 

For AOS cases already filed and pending with the USCIS, we suggest each applicant begin to gather documents showing (i) good moral character, e.g. character reference letters, community service letters, etc., and (ii) the impact to the applicant and to others (e.g. employer, family) if the applicant were required to depart the U.S. and consular process.

For future AOS cases, we will work with our clients to weigh the pros, cons, and potential outcomes to make a collaborative decision on AOS or consular processing. 

Disclaimer

This post is for general information only and is not legal advice or a request to provide legal services. Neither receiving it nor reading it creates an attorney-–client relationship. Do not act based on this information without getting advice from your immigration lawyer.