Quick Hits
- USCIS releases new policy memorandum stating adjustment of status (AOS) applications are a matter of discretion and administrative grace, directing USCIS offices to consider all factors and closely scrutinize applications from individuals who would otherwise obtain permanent residence through consular processing abroad.
- Applying for adjustment of status is not inherently inconsistent while maintaining nonimmigrant status in a dual-intent category, such as H-1B or L-1, but does not grant a favorable exercise of discretion.
- AOS applications are to be reviewed by officers considering all relevant factors and information in the totality of the circumstances, including the possibility of consular processing abroad.
The memo directs USCIS officers to consider all relevant factors on a case-by-case basis, signaling that the agency will more closely scrutinize applications from individuals who could otherwise obtain permanent residence through consular processing abroad. The memo does not prohibit AOS applications and specifically reminds officers that adjustment of status is not inconsistent with dual-intent nonimmigrant visa status (such as H-1B/H-4 and L-1/L-2).
The new policy memorandum reviews how courts and the U.S. Congress have treated adjustment of status as an extraordinary act of administrative grace, allowing applicants to apply for permanent residency from within the United States rather than through consular processing of an immigrant visa at a U.S. embassy or consulate abroad. The policy memorandum reminds officers they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.
Specifically, the policy memorandum directs officers when exercising their discretion to consider false testimony to government agencies, violations in applications for admission or parole, conduct of the applicant after admission as a nonimmigrant or parolee inconsistent with the purposes of that nonimmigrant status or parole or with representations to consular officers or U.S. Department of Homeland Security (DHS) officers, in determining whether extraordinary relief is warranted. Other factors to be considered in this discretion include family ties, immigration status and history, the applicant’s moral character, and any other relevant factors.
The policy memorandum further provides that applying for adjustment of status in a dual intent category, such as H-1B or L-1, is not inherently inconsistent while maintaining a nonimmigrant status. However, maintaining dual-intent status alone is not sufficient to warrant a favorable exercise of discretion.
If adjustment of status is denied on the basis of unfavorable discretion, officers must issue a denial notice containing an analysis of the positive and negative factors considered, along with an explanation as to why the negative factors outweigh the positive factors.
Key Takeaways
This policy represents a meaningful shift in how USCIS will evaluate AOS applications and may directly affect employer-sponsored green card cases. AOS applicants can anticipate increased scrutiny on their applications, with consular processing (or processing of the visa abroad at the consulate) as the preferred pathway for processing for individuals who do not warrant a favorable exercise of discretion. USCIS emphasizes that each decision remains individualized. Strong equities—such as long-term U.S. residence and family ties—remain relevant positive factors that officers must weigh against any adverse considerations.
Additionally, the policy remains unclear on a number of items and additional guidance is required, specifically:
- The memo does not indicate when AOS applicants will no longer be able to apply within the United States.
- The memo does not indicate the stance, or impact, if any, on the AOS applications that are already in progress.
- The memo does not clarify what AOS pathways will be available, and whether they will be restricting certain groups from applying for AOS.
- The memo does not address whether any specific factors will weigh more than others in this totality of circumstances test when adjudicating an AOS application.
- The memo also does not address what positive factors are enough to approve an AOS application within the United States and not require consular processing.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.
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