USCIS Implements Policy Changes Affecting Adjustment of Status Applicants
U.S. Citizenship and Immigration Services (USCIS) has rolled out new policy changes that will impose stricter conditions on individuals seeking permanent resident status via “adjustment of status” within the United States. This shift directs USCIS officials to regard the adjustment process as an “administrative deferral action” and a form of “special discretionary relief,” placing it in contrast to the traditional immigrant visa process conducted at U.S. consulates abroad. In evaluating an applicant’s eligibility for adjustment, officials are now required to assess the entirety of the circumstances surrounding each case to determine whether granting permanent residence aligns with the best interests of the nation. Individuals with pending adjustment applications or those considering submitting a request are encouraged to take preparatory steps.
Essential Evidence for Adjustment Applications
To enhance their prospects for a favorable decision, applicants who are legally qualified for adjustment must include substantial evidence in their submissions. This evidence should highlight positive aspects that USCIS will weigh during its discretion-based assessment, such as immigration history, family ties, serious medical conditions, community involvement, duration of residence within the U.S., military service, tax contributions, community service, intent in the U.S., good moral character, and other factors that could mitigate any negative elements. Notably, one detrimental factor outlined in the memo is the mere act of seeking permanent residency from within the country instead of through consular facilities abroad.
Cross-Submitting Supporting Evidence
For those with pending adjustment applications, it is advisable to “cross-submit” supportive documentation demonstrating these favorable discretionary factors. This proactive approach can significantly bolster their case as USCIS evaluates the applications. Additionally, applicants should maintain their nonimmigrant status or parole that existed at the time of their initial adjustment request and should explore the option of extending that status while awaiting a decision.
Considerations for Nonimmigrant Status Extensions
The USCIS memo raises concerns regarding the likelihood of favorable outcomes for nonimmigrant extension applications, particularly for individuals categorized outside of “dual intent” roles, such as H-1B or L-1 visa holders. It suggests that simply maintaining lawful status within a nonimmigrant category does not guarantee a favorable exercise of discretion in adjustment applications.
Planning for Potential Denial of Applications
Adjustment applicants should mentally prepare for the possibility of having their requests denied. It is wise to plan for the alternative of applying for an immigrant visa if necessary. Individuals who cannot sustain their nonimmigrant status while their adjustment application is under review risk being unable to remain in the U.S. should their request be rejected.
Legal Implications of Immigration Violations
The memo disregards the stipulations in Section 245(k) of the Immigration and Nationality Act (INA), which permits individuals in specific immigration categories who have committed minor immigration violations to be eligible for adjustment. Those relying on Section 245(k) could face increased vulnerability to discretionary denials. Furthermore, INA provisions 245(a) and (c) specifically facilitate the adjustment of status for immediate relatives of U.S. citizens, even if they have overstayed their visas.
Risk Assessment for Overseas Applicants
Individuals who have accrued 180 days of “unlawful presence” before applying for adjustment may trigger three- or ten-year inadmissibility upon leaving the U.S. It is essential for such individuals to assess their eligibility for non-admission exemptions based on extreme hardship to their spouse or children who are U.S. citizens or permanent residents. Before leaving the country, individuals must secure an immigrant visa through a consulate and fully understand the associated risks and repercussions.
Should USCIS deny a discretionary adjustment request, affected individuals may opt to remain in the U.S. and face removal proceedings, during which they can reconsider their adjustment case before an immigration judge, who can evaluate the situation more holistically. While this new policy is expected to face legal challenges, applicants must navigate the implications carefully and seek guidance from experienced immigration attorneys. Given the complexity of these regulations, it is crucial that applicants thoroughly review their circumstances with qualified legal professionals.
