USCIS Implements Major Changes to Green Card Application Process
The recent policy shift announced by U.S. Citizenship and Immigration Services (USCIS) substantially alters the primary pathway to legal permanent residence in the United States. This change mandates that most foreign nationals currently in the U.S. must exit the country and apply for a green card at a U.S. consulate abroad. Former USCIS officials estimate that on average, around 1 million individuals apply for green cards each year, with roughly half of these applications processed domestically through an adjustment of status. Many applicants, often married to U.S. citizens or holding work or student visas, now face the challenging prospect of relocating temporarily from their families and jobs, while waiting for consular processing that may span months or even years.
Official Statement from USCIS
USCIS spokesperson Zach Koehler provided insights into the new policy in an official statement. He explained that moving forward, foreign nationals seeking to obtain a green card will need to return to their home countries for application, except under exceptional circumstances. This approach aims to minimize the need for enforcement actions against those who may remain in the U.S. illegally after being denied residency.
Details of the New USCIS Policy Memorandum
The policy document, known as USCIS Policy Memorandum PM-602-0199, is narrower in scope than its initial press release might imply. Dated May 21, 2026, the memorandum outlines that while it does not explicitly prohibit domestic applications, it encourages officials to view consular processing as the standard route for obtaining a green card. The memo delineates a few categories permitted to adjust their status within the U.S., such as H-1B visa holders, refugees, asylees, and certain humanitarian applicants. However, USCIS has yet to specify a commencement date or address the status of pending applications under the new guidance.
Legal Framework and Legislative Context
This new policy does not modify existing legislation governing adjustment of status, which is contained in Section 245 of the Immigration and Nationality Act (INA). This section stipulates that the status of eligible noncitizens may be adjusted at the Attorney General’s discretion, guided by regulations determined by the Attorney General. Authority over this process currently resides with the Secretary of the Department of Homeland Security (DHS) and USCIS, and the applicable legislation does not categorize adjustments as “special” relief.
Emerging Legal Challenges
The ambiguity surrounding the application of the term “special relief” in the memo has sparked a potential legal challenge. Immigration attorney Cyrus D. Mehta argues that this framework does not align with existing provisions in the INA, potentially violating the law itself. He points out that Congress has consistently set higher evidentiary standards in similar contexts, such as requiring “clear and convincing evidence” for eligibility in exceptional circumstances. According to Doug Rand, a former USCIS official, the primary intent behind this policy appears to be exclusionary.
Implications of Recent Legal Precedents
The recent U.S. Supreme Court ruling in Roper-Bright Enterprises v. Raimondo has further complicated matters by reversing Chevron deference and obligating courts to find the best interpretation of the statute. However, this decision continues to allow for deference towards explicit Congressional discretionary delegations, which could diminish USCIS’ argument around the discretionary language of Section 1255(a). Additionally, Mehta contends that the memo operates as a substantive rule generated without the requisite notice or comment, violating the Administrative Procedure Act. USCIS is expected to counter this claim by designating the memo as an interpretive rule exempt under Section 553(b)(A). Legal action challenging this policy is anticipated.
