A policy change announced on Friday by U.S. Citizenship and Immigration Services will change the most common path to lawful permanent residency in the United States, requiring most aliens already in the country to leave the country and apply for a green card through a U.S. consulate abroad. Former USCIS officials estimate that about a million people apply for a green card in a typical year, and about half do so within the U.S. through adjustment of status. These applicants, including many who are married to U.S. citizens, hold work or student visas, and have been paroled on humanitarian grounds, now face the prospect of leaving the country, separating from family and work, and awaiting a consular process that can take months or years.
USCIS spokesman Zach Kahler said in a public statement:
From now on, a foreign national temporarily residing in the United States who wants a green card must return to his or her home country to apply, except in exceptional circumstances. Having aliens apply from their home country reduces the need to find and deport those who choose to step into the shadows and remain in the U.S. illegally after being denied residency.
The operational document, USCIS Policy Memorandum PM-602-0199is narrower than the press release suggests. It is dated May 21 and is titled “Adjustment of Status is a Matter of Discretion and Administrative Grace and an Exceptional Facilitation Allowing Applicants to Forego the Ordinary Consular Visa Process.” At first glance, it does not rule out registration within the country. Instead, it directs officials to view adjustment as an adverse discretionary remedy and consular processing as the usual route. The memo identifies limited categories including holders of dual-intent visas such as H-1B, refugees, asylum seekers and certain humanitarian applicants. USCIS has not provided an effective date or address for pending applications.
The memo does not change the underlying statutes. Adjustment of status is governed by Section 245 of the Immigration and Nationality Act, codified at 8 USC § 1255(a)which provides that the status of an eligible non-citizen “may be adjusted by the Attorney General in his discretion and in accordance with such regulations as he may prescribe” to that of a lawful permanent resident. Decision-making authority now rests with the DHS Secretary and USCIS Homeland Security Act of 2002. The law does not describe an adjustment as “extraordinary” relief.
This gap in the text is at the heart of the legal challenge that is now emerging. New York immigration attorney Cyrus D. Mehta has argued that the memo’s language of the adjustment as “extraordinary relief” does not appear anywhere in the INA and is “contrary to the law,” and points out that elsewhere in the statute Congress used more stringent standards such as “clear and convincing evidence” when intending to reserve benefit for exceptional cases. Former USCIS official Doug Rand told reporters that “the purpose of this policy is exclusion.”
The US Supreme Court decision in Loper Bright Enterprises v. Raimondo overruled that Chevron respects and directs courts to determine the best reading of a statute, although doing so maintains respect for express discretionary delegations of Congress, a wrinkle that works in USCIS’s favor on the “in its discretion” language in § 1255(a). Mehta has it too argued that the memo functions as a substantive rule promulgated without notice or comment in violation of the Administrative Procedure Actan argument that USCIS is expected to counter by treating the memo as a rule of interpretation exempt under Section 553(b)(A). A legal dispute is generally expected.
