USCIS Memo Signals Heightened Scrutiny of Adjustment of Status Cases

U.S. Citizenship and Immigration Services (USCIS) issued a policy memo May 21 reaffirming that adjustment of status — the process by which someone present in the United States applies for permanent residence without having to leave the country to complete consular processing abroad — is a discretionary benefit.

The memo does not amend immigration law, create new eligibility requirements or prohibit adjustment of status filings. But it reiterates that USCIS officers retain broad discretion in adjudicating adjustment applications and may deny applicants for a range of conduct, including unauthorized employment, visa overstays, immigration violations, noncompliance with admission terms, or evidence suggesting preconceived immigration intent.

USCIS officers are directed to weigh all relevant positive and negative factors when exercising their discretion in adjudicating adjustment of status applications, noting that adverse factors in the applicant’s history may weigh against approval and instead require the applicant to leave the U.S. and apply through consular processing in their home country.

An accompanying press release from the agency set off alarm bells in the immigration community when it appeared to reframe the memo’s policy as being that adjustment of status must be conducted through consular processing outside of the country except under rare circumstances.

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Contrary to media reports, the new agency guidance does not prevent foreign nationals from applying for adjustment of status from within the U.S. and does not restrict USCIS officers from approving adjustment applications. Instead, it signals that USCIS intends to apply heightened discretionary scrutiny to those applications, focusing on cases where an applicant’s conduct appears inconsistent with the purpose of their temporary admission, such as a student who transitions to the green card process too quickly, or someone who overstayed their temporary visa, has since married a U.S. citizen and is seeking permanent residence.  

Specifically, the memo directs officers to consider:

• Whether an applicant has violated U.S. immigration laws or the conditions of a prior immigration status.
• Any prior instances of fraud or false testimony with government agencies.
• Whether an applicant’s entry was consistent with applicable laws and policies at the time.
• Conduct after admission that was inconsistent with the purpose of a visa.
• Family ties, immigration history, and moral character.

According to USCIS, requiring applicants to apply from their home country reduces the risk of denied applicants remaining in the U.S. illegally.

Despite the memo’s directive to examine all negative and positive factors in all cases, it remains USCIS policy and precedent that adjustment of status is appropriate where no negative or adverse factors are present.

If it is in fact true that foreign nationals in the U.S. must go abroad to apply for permanent residence except in “extraordinary circumstances,” that would be a sweeping reversal of long-standing immigration practice, introducing massive disruptions to employment relationships and impacting hundreds of thousands of families.

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Attorney Takeaways

“The new guidance memo does not direct the agency to stop accepting or receiving new I-485 filings,” said Eric Ledbetter, an attorney in the Chicago office of Quarles. “Under immigration law, the right to file Form I-485 is governed by statute and regulation, which require that the applicant meet certain eligibility requirements. A mere policy memo cannot override the statutory filing right for applicants who meet these threshold requirements.”

Ledbetter added that he expects adjustment of status applicants to face additional USCIS scrutiny in the form of increased requests for evidence or additional questions at interviews, slowing processing timelines and requiring more detailed responses to agency inquiries.

Exceptions listed by USCIS include those whose presence offers an “economic benefit” or is in the “national interest,” potentially covering H‑1B and L‑1 visa holders.

“Employment-based applicants with continuous lawful status in dual-intent categories, such as H-1B and L-1, and clean compliance histories, whose underlying I-140 rests on a contribution-based theory, are well-positioned [for approval],” said Joseph Robinson, an attorney and founder of Robinson Immigration Law in Nashville. But notably, while “complying with H-1B or L-1 obligations is preserved as a positive factor, it does not by itself satisfy the discretionary analysis,” he said.

Robert Divine, an attorney in the Washington D.C., and Chattanooga, Tenn., offices of Baker Donelson, said that eligible applicants for adjustment should include with their application evidence of the positive factors USCIS is looking for, including “compliant immigration history, family ties, connections to the community, length of residence in the U.S., U.S. military service, tax payment history, community services, positive purposes in the U.S., good moral character, and any other factors to offset any negative factors.”

Current and future adjustment applicants and their immigration counsel will need to make a clear and well-documented case that the applicant merits a positive exercise of discretion, even where adverse factors are limited or absent, Divine said.

USCIS provided no clear timeline for how or when changes in adjudication practice will be implemented, however, the memo language suggests it is currently in effect and applies to pending and future applications. The memo noted that additional guidance addressing specific applicant groups may be forthcoming.

Individuals who have already filed an adjustment of status application, or plan to do so, should:

• Expect possible delays.
• Be prepared for additional questions.
• Refrain from international travel.

Employers sponsoring foreign nationals should maintain thorough documentation of lawful status maintenance and employment authorization history. In the past, some applicants for adjustment of status allowed their underlying temporary status to lapse while awaiting adjudication of their green card application, relying instead on the pending adjustment or related work permit for continued presence and work authorization. That may not be prudent going forward.

“USCIS may increasingly take the position that individuals must maintain an underlying status when pursuing an adjustment of status,” Robinson said.