USCIS released a policy memo on Friday stating that individuals must pursue consular processing rather than an adjustment of status when petitioning for a Green Card (to read the memo, click here).
The memo emphasizes that filing adjustment cases within the United States are meant for extraordinary circumstances on a case-by-case basis. As such, USCIS officers have been encouraged to use their authority to determine whether petitions merit favorable discretion for an adjustment of status within the United States moving forward. Please note that the notice does not address current pending I-485 cases and whether they are affected by this memo.
This is not the first notice to highlight the discretionary power of USCIS officers in approving or denying immigration-related petitions. Recent policy changes have already marked increased scrutiny in areas such as naturalization and student visas, focusing on moral character, general conduct, and the contributions of beneficiaries to the United States.
Here, USCIS officers are directed to weigh positive and negative factors when adjudicating Green Card petitions, including financial hardship, status overstays, tax history, family ties, and criminal history. It serves yet another reminder from the U.S. government that immigration benefits are granted with discretion.
What does this mean?
Simply put, USCIS expects individuals admitted or paroled into the United States to return to their home country and go through consular processing to receive their Green Card, rather than petitioning to adjust their status from within the United States, with exceptions due to extraordinary circumstances.
· Applicants who seek to avoid consular processing, especially those who’ve overstayed or violated the terms of their admission, must demonstrate “unusual or even outstanding equities” to overcome those negatives. Merely having no bad factors is not enough.
· Possible considerations include immigration history, law violations, fraud, conduct inconsistent with visa or parole status, moral character, family ties, and whether approval is in the best interest of the United States.
· When USCIS denies based on an unfavorable exercise of discretion, the denial notice must spell out the positive and negative factors and explain why the negatives outweigh the positives.
What’s next?
The notice is a general announcement and USCIS is expected to provide additional guidance soon. This could be targeted policy guidance about which groups are — or are not — likely to warrant an exemption for extraordinary circumstances.
We understand that many are concerned about this news, and we will share updates as more information is released. We don’t know if this is simply a scare tactic by USCIS or if this will be policy moving forward. We need additional details from USCIS. In the meantime, please contact us with any questions and we are happy to speak with you.