Today USCIS issued a memo about how final green card applications will be reviewed (I-485 adjustment of status). Our initial reaction is that this does not appear to immediately change the underlying eligibility requirements for Adjustment of Status. Rather, the memo reinforces USCIS’ discretionary authority at that final adjudication stage. Therefore, we are watching this carefully to see how the memo is implemented in practice. For those Green & Spiegel clients working on a green card, we will update our strategy if needed, but no immediate action is needed.
Historically, many more green cards were processed from abroad than in the United States – people would enter the country with a green card. That was a time when there were fewer temporary visa options, and green cards were faster and somewhat simpler. When the Immigration Act was written, filing for a green card in the US through adjustment of status was discretionary, and not a guaranteed right.
However, over the past few decades, the balance has shifted and many people enter the US on temporary visas and then adjust status here. Those cases are common, and have generally been approved if the person meets the basic requirements for a particular category.
Today, USCIS has written that it is planning to take the discretionary basis of adjustment of status more seriously, and do a more active balancing of positive and negative factors. These factors are explained in the USCIS Policy Manual, which still states that “The exercise of discretion does not mean the decision can be arbitrary, inconsistent, or dependent on intangible or imagined circumstances.”
USCIS says in the new memo that additional policy guidance may be forthcoming and references circumstances where discretion may be treated differently. However, there is no change yet, and we will update you when and if that guidance is issued.
In general, to be prepared we recommend:
1/ adding positive evidence beyond what is usually required. An I-485 usually includes a medical exam, biographical information, visa history, civil documents, etc. To make the application as strong as possible when the officer considers discretion, we can add positive information that we may not have before. This could be a course transcript showing good grades, an admissions letter to a degree program, diploma, positive employee performance reviews, certificates, awards, or evidence of volunteering or being active in a religious organization.
2/ preparing with your legal team for an I-485 interview if there is one, and discussing the possible benefit of having an attorney there.
At this stage, we are not recommending any immediate changes to strategy or action for the employee population we support. Our initial expectation is that, for straightforward employment-based adjustment cases, this is more likely to result in increased scrutiny and documentation expectations than a wholesale shift in eligibility standards, but we want to validate that assumption before providing definitive guidance.
For those with potential negative factors, such as arrests, immigration violations, etc., we can be ready to argue positive factors exist. Current USCIS guidance still on its website states that: “An alien’s threshold eligibility for the benefit sought is generally also a positive factor. Therefore, absent any negative factors, USCIS ordinarily exercises discretion positively. Generally, if there are no negative factors to weigh against that positive factor, denial of the benefit would be an inappropriate use of discretion.”
This memo is part of a trend over the past year to clarify where the US government has discretion. The agencies have been updating guidance with more factors they consider for discretion. USCIS has also updated guidance on discretion for citizenship cases and very recently Deferred Action (including DACA). We have not seen wholesale changes in citizenship cases, and are looking to see how Deferred Action cases are affected.
In general, large changes to immigration policy must follow a formal process set out in the Administrative Procedure Act called notice and comment rulemaking. Making significant changes by a memo may lead to lawsuits. In particular, we note that one appeals court has found that the Immigration & Nationality Act adjustment of status provisions mean that people cannot be barred from applying for reasons not listed in the statute. Green & Spiegel has recently filed a set of court challenges to the policy of not approving cases for people from travel ban countries in part on that basis. We will be watching carefully to see if there are successful legal challenges to this new use of discretion.
