DHS reportedly offered clarification on the recent USCIS policy update regarding adjustment-of-status applications

As covered in our latest client alert, U.S. Citizenship and Immigration Services (USCIS) recently released a policy memorandum that stated that individuals must return to their home countries to apply for green cards except in “extraordinary” cases. Following the release of this memorandum, multiple news sources, including The New York Times, Bloomberg and The Wall Street Journal, reported that a U.S. Department of Homeland Security (DHS) spokesperson sought to clarify that there was no major policy change and that only certain applicants will be required to apply for their green cards from abroad. DHS stated that it is not a blanket requirement and that it will be up to individual immigration officers to decide on a case-by-case basis whether to require consular processing abroad, noting that officers have always had such discretion. This clarification suggests that the policy should not affect the vast majority of employment-based cases (e.g., EB-1, EB-2, EB-3) for individuals who (1) hold a dual-intent status (i.e., H-1B or L-1) and (2) have maintained and will continue to maintain their status and otherwise qualify for adjustment of status. It remains unclear, however, how the policy may affect those in other statuses, such as those in temporary employment statuses other than H-1B or L-1 (e.g., O, E, TN). It is also still unclear how this policy may be implemented for employment-based adjustment applicants with prior nonimmigrant status violations that do not exceed 180 days since their last entry and who are therefore permitted to adjust status under INA 245(k).

Notably, there are already reports of adjustment-of-status applicants being asked by USCIS officers in interviews why they are applying from within the United States and whether any factors prevent them from applying in their home countries, signaling that the guidance is actively influencing adjudications. Aside from employment-based cases, the policy appears to pose the most significant risks for family-based applicants who may have overstayed a visa and could consequently face a three- or 10-year bar upon departing to apply for a green card interview abroad. Another area of concern is children who are in a dependent status (e.g., H-4 or L-2) and will turn 21 after their dependent adjustment-of-status application has been filed but who are unable to maintain another underlying status (given that they no longer can maintain the under-21 dependent status). Historically, USCIS never put these children in removal proceedings, given their pending adjustment-of-status applications, despite these applicants not maintaining an underlying nonimmigrant status. With the new policy, it now is unclear whether this past practice will continue.

In summary, DHS’ clarification has not fully alleviated concern or confusion, as certain details remain sparse about who might be affected and how. Legal challenges are widely anticipated, and we will continue to monitor the situation closely. We continue to recommend that foreign nationals document clean criminal and immigration records and maintain evidence of lawful status with no unauthorized gaps in employment or status.

If you have any questions or need additional information about this alert, please feel free to contact the HSF Kramer Immigration Group.