Client Alert: USCIS Policy Change May Require Immediate Reassessment of Adjustment of Status Strategy

U.S. Citizenship and Immigration Services (USCIS) has issued a significant new policy memorandum addressing adjustment of status, the process by which certain foreign nationals apply for lawful permanent residence from inside the United States.

The memo reiterates that adjustment of status is a discretionary benefit but labels it an “extraordinary” form of relief. USCIS is emphasizing that adjustment should not be treated as the same as the immigrant visa processing through a U.S. consular post abroad.

This policy does not eliminate adjustment of status. It also does not mean that every pending or future adjustment application will be denied. But it does signal that USCIS officers may apply a more demanding discretionary analysis, particularly where the applicant could theoretically pursue consular processing outside the United States.

The policy may affect both new and pending cases. Because USCIS did not provide a delayed effective date in the memo, applicants should assume that officers may begin applying this framework immediately unless further guidance says otherwise. Practitioners are already reporting that USCIS officers have begun asking adjustment applicants why they chose to apply inside the United States and what factors prevent them from applying through a U.S. consulate abroad.

This means adjustment applicants may need to be prepared to do more than prove eligibility and typical discretionary factors. They may also need to affirmatively show why USCIS should favorably exercise discretion to adjust their status rather than force them to a consular process.

Even before this memo, USCIS instructed officers to consider the totality of the circumstances. Typical negative factors include failure to maintain lawful status, unauthorized employment, overstays, prior immigration violations, fraud or misrepresentation, conduct inconsistent with the stated purpose of a visa, admission, or parole, and failure to depart after the purpose of a temporary admission or parole ended.

Now, the absence of negative factors may not be enough. Applicants may need to document positive equities, such as family ties in the United States, hardship issues, long-term residence, lawful employment, tax compliance, community involvement, good moral character, employer support, humanitarian considerations, and other facts showing that adjustment of status is warranted.

The policy may be especially important for applicants who entered in temporary categories, parolees, individuals with any status gaps, applicants with unauthorized employment, applicants who entered through ESTA or visitor classifications, and individuals whose facts may raise questions about whether they entered temporarily with the intent to pursue permanent residence from inside the United States.

Dual-intent categories, such as H-1B and L-1, may be less vulnerable to certain intent-based arguments, but the memo expressly states that maintaining lawful status in a dual-intent category is not automatically enough, by itself, to require a favorable discretionary decision. These applicants may still need a well-documented discretionary showing of why they should be able to adjust status rather than a consular process.

The policy also creates practical concerns for people with pending adjustment applications. Applicants may receive additional questioning at interviews or possibly a Request for Evidence asking why an adjustment of status is appropriate instead of consular processing. Pending applicants should review whether their filings already contain sufficient evidence of favorable discretion or whether additional documentation should be prepared.

Consular processing should not be selected automatically. Leaving the United States to process an immigrant visa abroad can create separate risks, including unlawful presence bars, inadmissibility issues, administrative processing, visa appointment delays, difficulty returning to the United States, family separation, and interruption of employment. For some applicants, consular processing may be legally or practically dangerous.

Employers and family sponsors should also reassess strategy before the next filing step. This includes reviewing whether the case should proceed through adjustment of status, whether consular processing should be considered, whether the applicant must maintain or extend underlying nonimmigrant status, whether travel is advisable, and what evidence should be gathered now.

Applicants should not travel, abandon status, change employment, delay extensions, or assume that a pending adjustment application will proceed under prior expectations without legal review. This policy may change the risk analysis for filing, travel, work authorization, advance parole, maintenance of status, and whether to prepare a more robust discretionary record.

Because USCIS and the immigration bar are still evaluating how broadly this memo will be applied, individualized review is critical. Anyone with a pending or planned adjustment of status application should consult immigration counsel before taking the next step.

DISCLAIMER: This client alert is for general educational purposes only and does not constitute legal advice. If legal advice is needed, please consult with an attorney.

Alycia Moss is a Director in Fennemore’s Immigration practice group, focusing her practice on guiding businesses, families, and individuals through the complexities of U.S. immigration law. You can contact Alycia at amoss@fennemorelaw.com.

Find more information about Fennemore’s Immigration services here.