On May 21, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 outlining the green card process for nonimmigrants in the U.S., such as temporary workers on H-1B visas. In an accompanying press release, USCIS stated that nonimmigrants in the U.S. who want a green card “must return to their home country to apply, except in extraordinary circumstances,” and that a nonimmigrant’s time in the U.S. “should not function as the first step in the Green Card process.”
The policy memo is titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.” The memo directs USCIS officers to treat adjustment of status under section 245 of the Immigration and Nationality Act (INA) as an extraordinary form of relief that should be granted only in meritorious cases, and to weigh whether an applicant should have pursued consular processing instead of adjusting status from within the U.S. The memorandum is effective immediately.
Background
Adjustment of status, filed on Form I-485, is the process by which foreign nationals already physically present in the U.S. in a nonimmigrant or parolee status apply to become lawful permanent residents (green card holders) without leaving the country. The alternative pathway, consular processing, requires the applicant to apply for an immigrant visa at a U.S. consulate abroad and enter the U.S. as a permanent resident.
Summary of the Policy Memo
The memo characterizes adjustment of status as “extraordinary” relief that “permits the alien applicant to avoid the prescribed, ordinary consular visa process to obtain lawful permanent residence without leaving the United States.” It states that Congress established the nonimmigrant admission and parole processes with the expectation that noncitizens would depart the United States when the purpose of their admission or parole has been accomplished, and that “when a nonimmigrant or parolee fails to depart as required and instead seeks adjustment of status, it contravenes these Congressional expectations.” The memo directs officers to consider, on a case-by-case basis and in the totality of the circumstances, whether an applicant warrants the favorable exercise of discretion, and notes that adverse factors may need to be offset “by a showing of unusual or even outstanding equities.”
The memorandum identifies several factors officers are to weigh when adjudicating Form I-485 adjustment of status applications, including:
- Violations of immigration laws or the conditions of any immigration status held
- Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency
- Whether an applicant’s prior application for admission or parole violated the laws, regulations and policies in place at the time
- Conduct of the applicant after admission as a nonimmigrant or parolee that was inconsistent with the purpose of that nonimmigrant status or parole, or with representations made to consular or Department of Homeland Security officers
- An applicant’s failure to comply with the conditions of nonimmigrant admission or parole, and failure to depart as expected
Of this last factor, the memo notes that it is “particularly true when the failure is connected to the alien’s intention to reside permanently in the United States and the alien could have achieved that goal through the normal immigrant visa process.” It also states that the absence of adverse factors, by itself, does not demonstrate the equities needed to warrant favorable discretion.
The memo acknowledges that “applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent,” such as H-1B and L-1, but cautions that maintaining lawful status in a dual-intent category “is not sufficient, on its own, to warrant a favorable exercise of discretion.”
The memo also indicates that USCIS “may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens” in the future.
Implications for Higher Education
The memo has potentially significant implications for institutions of higher education that sponsor foreign national faculty, researchers and staff for permanent residence, and for international students who may eventually pursue an employment-based green card pathway. Institutions should review pending and anticipated adjustment of status filings with immigration counsel.
CUPA-HR will continue monitoring USCIS guidance and announcements for additional updates.