USCIS announced a new policy memo impacting applications for Adjustment of Status (AOS) in the U.S. USCIS asserts that adjustment of status to permanent residence (green card) is an act of “administrative grace,” not a right. It directs officers to weigh all relevant factors requiring applicants to show outstanding equities to overcome adverse factors. In a press release, USCIS announced that it will grant AOS only in “extraordinary circumstances,” directing applicants to apply for immigrant visa processing at U.S. consulates in their home country. Although consular processing in their home country may be a viable option for some green card applicants, it poses additional risks and challenges for many applicants already in the U.S. seeking permanent residence.

This memo is in line with immigration trends over the past year – the use of discretionary factors to limit immigration benefits for those otherwise eligible. It is likely that USCIS will issue more guidance to field officers on how to implement this policy. Although the memo does not bar filing of AOS cases, applicants will likely be required to provide significantly more evidence with their applications. For applicants with cases filed and pending, we expect to see requests for evidence and/or notices directing applicants to apply at consulates in their home country.

Applicants and intending applicants for AOS who are not in currently valid immigration status, or who have overstayed their prior immigration status, in particular are likely to face higher burdens and thus should seek legal advice before proceeding with any application or attending any interview at USCIS.

This policy is likely to be challenged and could be limited in its application, as we have seen with other broad policy announcements over the past year.

We will continue to monitor how this policy is implemented and work with clients to evaluate the impact on their case.

Please contact your Van Der Hout representative for specific legal advice about your case.