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The US Citizen and Immigration Services (USCIS) recently issued a Policy Memorandum PM-602-0199 addressing Adjustment of Status (AOS), which is the process of applying for a Green Card.
The Memorandum significantly changes how USCIS officers may exercise discretion when reviewing Green Card applications.
Key changes
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Greater emphasis on discretionary review: Even where an applicant satisfies all eligibility requirements, USCIS officers are now instructed to independently determine whether the applicant merits a favorable exercise of discretion.
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Consular processing positioned as the default path: The Memorandum suggests USCIS views immigrant visa processing abroad as the ordinary process and adjustment within the United States as an exception rather than a standard pathway.
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Expanded weighing of adverse factors: Officers are directed to assess the totality of circumstances, including issues such as immigration violations, prior status issues, unauthorized employment, overstays, arrests, or conduct perceived as inconsistent with the terms of admission.
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No presumption of approval: USCIS specifically indicates that approval should not be presumed merely because an applicant appears to qualify for a Green Card.
Context and practical considerations
The Memorandum appears to be guidance governing adjudicative discretion; it is not a new law or regulation. The underlying legal requirements have not changed. Significant questions remain regarding implementation, including:
- How the policy will affect pending applications;
- Whether individuals with dual-intent visas (such as H-1B and L-1) will be treated differently; and
- Whether USCIS will issue additional category-specific guidance
The Memorandum will cause lengthy delays in Immigrant Visa processing at US Embassies and Consulates abroad. The limited US Government resources abroad may result in a significant slowdown of legal immigration into the US.
What clients should consider now
Clients with pending or planned adjustment applications should review their cases with counsel to evaluate the Memorandum’s potential impact. The immediate practical effects remain uncertain and further agency guidance is expected.
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