U.S. Citizenship and Immigration Services Will Grant ‘Adjustment of Status’ Only in Extraordinary Circumstances

On May 21, USCIS announced a new policy memorandum with the title of “U.S. Citizenship and Immigration Services Will Grant ‘Adjustment of Status’ Only in Extraordinary Circumstances”. (https://www.uscis.gov/newsroom/news-releases/us-citizenship-and-immigration-services-will-grant-adjustment-of-status-only-in-extraordinary)

Simply put, it is an official declaration in the form of a memorandum saying, “the USCIS will review I-485 applications much more strictly from now on.”

What does “Adjustment of Status” mean?
An I-485 adjustment of status application is a very convenient system that allows people to apply for a green card while inside the United States. Instead of going to the U.S. embassy in the immigrants’ own countries to obtain an immigrant visa to the USA, this applies to people who entered the U.S. on work visas, student visas, or tourist visas and then apply for permanent residency without leaving the US territory.

Why is USCIS suddenly doing this?
There are many people who assume that if they meet the eligibility requirements, they are automatically entitled to a green card, and who prepare and submit documents carelessly with a “take it or leave it” attitude. Many also think that simply entering the U.S. and filing for a green card is enough. Because USCIS keeps seeing these obvious patterns, they are now putting on the brakes.

This announcement reinforces that adjustment of status is not an “automatic privilege or right,” but rather an “exceptional convenience” granted by the US government. In other words, they are not saying “applications are prohibited.” They are saying, “Show us why you deserve the benefit of adjustment of status and why your case merits it.”

Matter of Blas
It states that “a foreign national bears the burden of proving why favorable discretion should be exercised in their favor.” If the applicant fails to meet this burden, USCIS may deny the adjustment of status application.

The key words here are “discretion” and “administrative grace.” This means that even if you are eligible and meet all requirements, the adjudication is the USCIS’ own discretion. Through this announcement, USCIS wanted to make clear that adjustment of status is not an inherent right, but a special benefit and extraordinary remedy granted by the government. Until now, even if someone entered the U.S. on a tourist visa and applied for a green card, approvals were relatively common. But now that could change.

The USCIS is saying that overstaying the authorized period of stay and then remaining in the U.S. to file for a green card can itself be viewed as a serious negative factor. People keep engaging in this behavior while also assuming they are “automatically” entitled to a green card, making it appear as though they are exploiting nonimmigrant visa status.

Are they really saying everyone should apply only through immigrant visas?
Not necessarily.

Whether someone should apply through adjustment of status or an immigrant visa still depends on the individual case. This guidance is not a blanket ban saying, “If you entered on a nonimmigrant visa, you cannot apply for adjustment of status!”
The main point of this memorandum is to emphasize once again that approval of a green card is still within the discretion of the USCIS officer. Filing an adjustment of status application does not guarantee approval.

It serves as a reminder to immigration officers to review and consider all relevant evidence and determine whether the applicant truly deserves permanent residency.

It also reminds officers to determine comprehensively whether granting adjustment of status serves the national interest of the United States. When reviewing adjustment of status applications, both positive and negative factors must be considered, and applicants must prove that the positive factors outweigh the negative ones.

Three key points of the memorandum
First, if you entered the United States on a nonimmigrant visa, the principle is that you should leave the U.S. once your authorized stay ends. Whether for tourism or study, once the purpose is fulfilled, you are expected to depart. Applying for adjustment of status within the U.S. is considered an “exceptional accommodation.”

Second, overstaying itself is a significant disqualifying factor.
In the past, even if someone overstayed, approval was often granted as long as there were no other major issues. But now USCIS officers have been clearly given the “weapon” of discretion to deny cases.

Third, the applicant must prove exceptional circumstances.
The applicant must demonstrate why they should receive a green card through adjustment of status within the U.S. instead of following the standard process of returning to their own countries and obtaining an immigrant visa there.

Who is being targeted?
In reality, the people at greatest risk are fairly specific. Those who entered under the Visa Waiver Program or on tourist visas may become targets for closer scrutiny if it appears they intended to circumvent the normal immigration process.

Even if someone is legally eligible, if it appears they entered the U.S. with the original intention of obtaining a green card, the officer can deny the case using discretionary authority.

Please note that there were already many such denial cases even before this guidance came out. 

• Someone who entered the U.S. on an F-1 student visa, but they barely studied, or
• someone who entered on a B-1 visa supposedly for business purposes, but there wasn’t even a legitimate company involved, or many other cases who have not continued with their original intent to staying the in the US

Relatively safer cases
As explicitly stated in this guidance, there are also people who are relatively safer.
These are individuals who entered on visas that recognize dual intent, such as H-1B or L-1 visas.
These visas already acknowledge from the beginning that, “Sure, while working in the U.S., you may eventually obtain a green card and stay permanently.” That is why they were categorized as explicit exceptions in this guidance.

Will this really be enforced as written?
In reality, lawsuits from immigration advocacy groups are expected.
Especially for immediate relatives of U.S. citizens, the rules established by Congress have not changed.
This memorandum could be viewed as an attempt to undermine the foundation of long-standing immigration law. So this issue will need to be monitored closely going forward.

Conclusion
Ultimately, what we must remember is that immigration law itself has not changed.
They are not saying, “From now on, only apply through immigrant visas!” or “You cannot apply for adjustment of status anymore!”
However, what has changed is that even if you submit the same documents as before, the outcome may now be different. Cases that might previously have been approved despite weaknesses may now face unfavorable outcomes. That is why thorough preparation is more important than ever.
In conclusion, this administrative action is Nothing new, Nothing immediate, but surely it means that the USCIS will exercise Microscopic Adjudication.

*** Kennedy Access Group is not an attorney licensed to practice law and may not give legal advice or accept fees for legal advice.***
*** Disclaimer: The information provided on this blog is for general informational and educational purposes only. It is not intended to constitute legal advice and should not be relied upon as such. Reading this post does not create an attorney-client relationship. If you need legal advice, please consult a licensed attorney in your jurisdiction."***