Potential Green Card Changes

At the end of last month, U.S. Citizenship and Immigration Services issued a policy memorandum that could have profound ramifications for those seeking a green card. It’s the latest move by an administration seeking to make legal immigration harder.

The memorandum from USCIS directs its officers to treat adjustment of status, the process that lets an eligible immigrant become a lawful permanent resident without leaving the country, as a discretionary and “extraordinary” measure rather than a routine step. The next day the agency announced that any immigrant who wants a green card, “must return to their home country to apply, except in extraordinary circumstances.”

Houston immigration attorney Gordon Quan told Houston Public Media that “over 600,000 people annually seek adjustment of status.” In fiscal year 2023, 608,260 people obtained permanent residence through adjustment of status from inside the United States, compared with 564,660 who arrived from abroad.

How USCIS explains it

USCIS spokesman Zach Kahler said the agency is “returning to the original intent of the law” to ensure immigrants “navigate our nation’s immigration system properly,” and that the change stops the system from “incentivizing loopholes.”

Later, the agency narrowed the claim. It told reporters that applicants who provide an “economic benefit” or are otherwise “in the national interest” will likely stay on their current path, while it may ask others to apply abroad depending on individual circumstances.

The memo does not bar anyone from filing Form I-485, the adjustment application. It tells officers to weigh an applicant's equities, treats a person's failure to leave when expected as "highly relevant," and requires officers to justify any discretionary denial in writing. It treats dual-intent visa holders, such as H-1B and L-1, as compatible with adjustment, though a footnote warns that dual intent alone does not earn approval.

How the law works

Congress created adjustment of status in 1952. Section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, lets a person who was “inspected and admitted or paroled” apply to become a permanent resident from inside the country if a visa is available. The purpose was to spare people from having to leave the United States only to stand in line at a consulate abroad and return.

Under another code, a person who accrues more than 180 days of unlawful presence and then departs triggers a three-year bar on reentry. One year or more triggers a ten-year bar.

The memorandum does not account for these risk. A longtime-resident applicant told to go home for an interview can trigger the same bar that keeps them out for years. A provisional waiver, Form I-601A, lets some immigrants with a citizen or permanent-resident spouse or parent seek forgiveness of the unlawful-presence bar before they leave, but it requires proof of “extreme hardship” to that qualifying relative, it carries no appeal if an officer denies it, and it does not cure the separate permanent bar for people who reentered illegally after a prior removal.

What current applicants should know

There are two ways to get a green card. Adjustment of status keeps the applicant in the United States and runs through Form I-485. Consular processing requires leaving the country for an interview at a U.S. embassy or consulate abroad.

Some applicants are more vulnerable than others. Students on F-1 visas and visitors on B-1 or B-2 visas, who entered for a temporary and specific purpose, draw the toughest discretionary review. Marriage-based applicants with any period of overstay are at risk as well. Holders of H-1B and L-1 visas with clean records stand in a stronger position, as do employment cases that fit the “economic benefit” framing the agency described.

Attorneys are not advising a rush to file. The memo sets no deadline that treats applications filed before it differently from those filed after.

Why Texas feels it first

For immigrants in Texas, only one place abroad can complete the process. The U.S. Consulate General in Ciudad Juárez is the only post in Mexico that issues immigrant visas. The Migration Policy Institute counts 997,000 Texas children who live with at least one parent who lacks legal status, 16 percent of the national total, and about 2 million undocumented residents statewide. In the Houston area alone, the institute counts 283,000 parents of minor children at risk of deportation.

Houston attorney Ali Zakaria said the policy risks “closing the door for the green cards for legal applicants in the United States, pointing to immigrants from the 39 countries the administration restricted under a January travel-ban proclamation, who can neither apply abroad nor win approval at home.

The memo also carries no exemption for people who worked alongside U.S. forces. Shawn VanDiver, president of the nonprofit AfghanEvac, called it “an abomination, especially for the Afghan folks” brought to the country on temporary status with the expectation that they would process for green cards here.

For now, the agency has not defined what counts as an "economic benefit" or the "national interest," nor said how it will treat the roughly 1.2 million applications already pending. The agency has published no regulation, and the promised category-specific guidance carries no date. A few days after the initial memo went out, DHS noted that most immigrants would actually not need to leave the country. Despite this latest admission from DHS, many immigration advocates remain concerned.