USCIS Shuts Down The Adjustment Of Status Process
An extreme new USCIS policy issued today may change the way most individuals pursue lawful permanent residence (a green card) in the U.S.
Since 1952, individuals could process for a green card in 1 of 2 ways: (1) Adjustment of Status (AOS); or (2) Immigrant Visa Processing (IVP). Individuals physically in the U.S. under lawful visa status could apply for their green card through AOS. Historically, AOS is a faster, less burdensome process than IVP, and (until Trump 2.0) generally allowed a person to remain in the U.S. until they received their green card. Individuals not physically in the U.S. had to pursue their green card through IVP, a multi-step, slower, more burdensome process.
USCIS’ policy issued today is an attempt to foreclose the AOS process to seemingly most applicants. Under this new policy, individuals must now pursue their green card through IVP, and may only apply for AOS “in extraordinary circumstances.” In addition to meeting the basic requirements for AOS, applicants will now be required to prove under this more heightened standard that their case warrants a “favorable exercise of discretion.” AOS has always been a discretionary process with officers evaluating whether the applicant’s positive factors outweighed any negative factors. Now, USCIS will consider simply applying for AOS while in the U.S. under a non-immigrant visa classification as a negative factor in this analysis (USCIS Policy, pg. 4). Applicants may need to offset this negative factor “by a showing of unusual or even outstanding equities” (Id. citing a 1976 immigration case). According to USCIS, the absence of any adverse factors is not enough to meet this burden (Id.). Even working in the U.S. under a dual intent visa like an H-1B is not enough on its own (USCIS Policy pg. 5, fn 20). What may qualify as “outstanding equities” sufficient to meet this new threshold is not specifically stated by USCIS. But today’s announcement reiterates that family ties, immigration status and history, and the applicant’s moral character are relevant factors (USCIS Policy pgs. 5-6).
What will be the likely result of this policy?
Processing Delays: Given the tone of the policy, the uncertainty over how USCIS officers’ will implement it, and a likely reluctance to place their lives subject to the whim of an officer, unless this policy is enjoined by the courts I suspect the majority of individuals will begin to pursue their green cards through IVP. This will likely result in extreme processing delays for green cards as Embassies become flooded with applications.
Forced Departures: If individuals are unable to maintain their visa status in the U.S. while processing for their green card through IVP, they will be forced to leave the U.S. and remain outside of the country until their immigrant visa is issued by the Embassy.
Visa Renewal Issues: Individuals who apply for AOS and who are unable to establish they qualify for this "extraordinary" benefit, may be later unable to extend their temporary visa status (F-1, TN visa, etc.). Immigration officers may consider the filing of an AOS application a significant sign of immigrant intent conflicting with the temporary entry requirements of the individual's visa status.
Learn more about Immigrant Visa Processing (IVP) requirements and procedures
U.S. immigration lawyer Brian D. Zuccaro has over 20 years of experience helping employers and individuals navigate the green card process.
