A new memorandum issued by the U.S. Citizenship and Immigration Services (USCIS) has generated concern among immigrants and lawyers after the agency stated that Those seeking to obtain a green card may have to return to their country of origin to complete the process.
However, immigration lawyers assert that the document does not eliminate the adjustment of status within the United States. According to the specialists, the official statement released by USCIS exaggerates the actual scope of the measure.
The alarm began after USCIS issued a statement indicating that the agency would grant adjustments of status “only in extraordinary circumstances.” This phrase was interpreted by many as the end of the possibility of obtaining permanent residency without leaving the country.
But immigration experts argue that the memorandum does not say that.
“Don’t panic,” say immigration lawyers
Immigration attorney Ava Benach, published an analysis with a title that speaks volumes: “Don't Panic About the USCIS Memo” (“Don't panic about the USCIS memorandum”). There, he argues that immigration laws and precedents cannot be changed by means of a memorandum.
According to the lawyer, USCIS has always had discretion to approve or deny adjustments of status, and the new memorandum primarily reinforces that authority. In other words, USCIS already had discretion to consider both positive and negative factors before approving a case.
He also noted that the public statement issued by USCIS uses much more aggressive language than the technical content of the memorandum. He emphasized that the document does not order the elimination of adjustment of status. Nor does it automatically require individuals to leave the country to complete the immigration process.
In that regard, he explained that the memorandum simply reminds immigration officers that they can exercise discretion when evaluating applications for permanent residence.
Negative factors that might be considered include previous immigration violations, visa non-compliance, or problems related to maintaining immigration status.
At the same time, Benach noted that officers must also evaluate positive factors, such as family ties, a favorable immigration history, and good moral character. “We have repeatedly seen that when a USCIS officer hears an immigrant’s individual story, they generally agree that these factors favor granting adjustment of status. This is particularly true when the applicant has a strong work and education history, or a U.S. citizen spouse or child, since boosting economic growth, ensuring a robust immigrant workforce, and promoting family unity were fundamental legislative purposes for creating the adjustment of status process.”
Applying for a Green Card in the United States: “Let’s not focus on the sensationalist press release”
Immigration lawyer Armando Olmedo also questioned the tone used by USCIS in statements broadcast by Univision.
“I am not going to be swayed by the press release issued by the Immigration Service, which is an alarmist, sensationalist press release not based on facts,” he stated.
Like Benach, the lawyer explained that the document simply reminds immigration officials that they have discretion to approve or deny applications for adjustment of status.
“That memorandum is basically reminding immigration officers that they can exercise discretion in granting or denying an adjustment of status,” he said.
"They are not saying not to grant it, they are not saying they should limit it, and we remind them that they have the ability to exercise discretion."
Olmedo explained that the memorandum lists positive and negative factors that officers should analyze before making a decision.
“They’re going to see if the person has violated the terms of their visa, has failed to comply, has not maintained their status historically, has not fulfilled their obligations as a resident here in the United States. Those are negative factors,” he noted.
But he also clarified that the document mentions elements favorable to the applicants.
“They, specifically, also have to value family ties; they have to value the person’s historical positive immigration status and see if the person has good moral character,” he explained.
"Then one weighs the matter and, if the positive results show that the person deserves the benefit, the benefit will be granted to them."
Finally, Olmedo sent a message of reassurance to the majority of immigrants.
"Most people have nothing to worry about regarding this.” he claimed.
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What is status adjustment?
Adjustment of status is the process by which certain people can apply for the permanent residence or Green Card without leaving the United States. This process has been in effect since Congress passed the Immigration and Nationality Act (INA) of 1952.
Many immigrants complete this process through family petitions, marriage to U.S. citizens, employment, or other immigration categories.
Experts recommend that people with pending cases or doubts about their immigration status consult with an immigration lawyer before making important decisions or assuming they will automatically lose the possibility of adjusting their immigration status in the country.
Why the memorandum cannot change immigration law
The law firm McKinney Immigration also questioned the legal scope of the memorandum and asserted that an internal USCIS document cannot by itself modify immigration laws passed by Congress.
“A memorandum is not a regulation or a law, nor is it a binding precedent of a federal court,” the firm stated in a release published after the USCIS announcement.
The lawyers pointed out that Section 245 of the Immigration and Nationality Act (INA) has authorized since 1952 that certain people can adjust their status within the United States if they meet the requirements established by law.
Furthermore, they explained that Congress has expanded that legal framework on several occasions precisely so that status adjustment is "a real and available path, not a rarity."
The firm also argued that the memorandum “is inconsistent” with existing federal regulations and with more than 70 years of administrative practice and court decisions related to adjustment of status.
“Calling the adjustment of status ‘extraordinary’ doesn’t make it extraordinary,” the lawyers stated. “An agency cannot rewrite a law through a press release or a policy memorandum.”
Finally, McKinney Immigration stated that it will continue to file adjustment of status applications as usual and anticipated potential litigation if USCIS begins denying cases based on the new policy.
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