USCIS told people they have to leave the US for a green card. Is that true?
Yesterday, USCIS came out with big news. They announced that they will make people return to their home countries to process their residency. This was a huge shock to everyone who practices in immigration law – the shock was more like a “WTAF?!?” This article explains that announcement.
When you apply for your lawful permanent residency (“green card”), there are two different agencies that can process that application. The Department of State processes all applications for people who are outside the United States. Called “consular processing,” the application and document submission are done online with the National Visa Center, then the applicant is interviewed in the US Consulate in their home country.
If a person is in the United States, they may be able to file for something called Adjustment of Status with USCIS, a component of the Department of Homeland Security. People applying for adjustment have to prove the same thing as people who consular process, they go through the same background checks and clearance processes, and they are also interviewed, but this time at a local office of USCIS.
Not everyone can adjust status.[1] Generally, people who entered the United States lawfully and who have maintained lawful status are eligible to file to adjust status. There are exceptions to that general rule. One big exception is for immediate relatives. “Immediate relatives” are the spouses, or unmarried children (who are under the age of 21) of United States citizens, or the parents of US citizens if the child is 21 or older. For immediate relatives, they only have to enter the country lawfully, any overstay is excused. Another exception is for people who had a family petition or labor certification filed for them prior to April 30, 2001, they can file to adjust status with the payment of a $1000 fine, regardless of whether they entered without documents or overstayed their visa.
When you file for adjustment of status, you have to show you are eligible for your residency within the category (for example, you are the spouse of a US citizen); you have to show your lawful entry and potentially your maintenance of lawful stay; and you have to show that you are admissible or have a waiver available for any ground of inadmissibility. Admissibility refers to the rules about who can get a green card, rules about things like whether the person has committed a crime or been deported. As with most applications, you also have to show that your application should be granted as a matter of discretion.
Discretion is the Trump Administration’s favorite tool right now. If the government’s decision is discretionary, it limits your ability to challenge their decisions in federal court. It’s a loosey-goosey term, a weighing of positive and negative, so they can weigh evidence based on the desired outcome, and not on any specific test. They have been increasing their reliance on discretion, which means they have increased the amount of evidence they require for even the simplest of applications, like work permit renewals.
The law for adjustment of status states at INA §245(a)
The status of an alien who was inspected and admitted or paroled into the United States (…) may be adjusted (…in his or discretion…) to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.
There are clear statutory exceptions to this in §245(c):
subsection (a) shall not be applicable to (1) an alien crewman; (2) (…) an alien (other than an immediate relative…) who hereafter continues in or accepts unauthorized employment prior to filing an application for adjustment of status or who is in unlawful immigration status on the date of filing the application for adjustment of status or who has failed (other than through no fault of his own or for technical reasons) to maintain continuously a lawful status since entry into the United States; (3) any alien admitted in transit without visa (…); (4) an alien (other than an immediate relative …) who was admitted as a nonimmigrant visitor without a visa (…); (5) an alien who was admitted (with an S visa), (6) an alien who is deportable (as a terrorist); (…).
Let’s look at how the law applies to the mother of a 21 year old citizen who entered the country 5 years ago on a tourist visa. She entered the US and overstayed her visa, and while she was here she got work cleaning houses. She was inspected and admitted, so she meets 245(a), but what about the exceptions? She fits exception 2 because she overstayed and she worked. However Congress wrote right into the statute “other than an immediate relative.” She’s an immediate relative, because she is the mother of a US citizen over the age of 21. That means she is eligible, under law, to file for adjustment of status. That’s one way they are being tricky here – they are claiming that the change in policy is to be faithful to the statute, but Congress was very clear in the plain language of the statute that she is eligible to adjust.
What happens to this mom if she applies with this new policy in effect? She would have to show she deserves to be granted a green card and would have to submit a lot of documentation to support it. Maybe her son is in college and she’s his sole support. Maybe she’s caring for a disabled child. Maybe one of her children is in the military. Maybe she has family here, and no family in her home country. It’s a lot of documentation to submit, and it’s a lot of documentation for USCIS officers to review at a time that they are already significantly backlogged.
What if she’s denied? They will place her in removal proceedings. Ironically, adjustment of status is a form of relief from removal, so she could file a new application before the judge. This new memo doesn’t apply to immigration judges. She would face detention. She would have to pay more filing fees – she has already paid USCIS $1440, now she has to pay the court $2980 (the difference in the filing fee is thanks to the One Big Beautiful Bill!).
The policy change states she is supposed to consular process her residency, and this is where people like the mom in our example face a huge hurdle. If you’ve been unlawfully present in the US and depart, you are barred from returning for 3 or 10 years. In our example, since she overstayed her visa for more than a year, she’s barred for 10 years. If she were to adjust her status, she would not depart and would not be subject to this bar. There’s a waiver available for the bar, but only if you have a US citizen or lawful permanent resident spouse or parent. Even if you are eligible to file the waiver, it currently takes 3 years to process them. Three years of being away from your family, your job, your community.
Much of what the memo actually says is a reiteration of the law. It’s true that adjustment of status is discretionary and they have the authority to consider an overstay as a negative factor. However, the message they are sending is that cases will be denied. They are stating that as a matter of policy they will deny huge numbers of people. The memo tries to say it’s just doing things the way they were supposed to do them all along. They use lots of terms to make it seem like this is not a policy change that is a complete departure from normal practice: “It has been long established,” “consistently characterized,” “consistently and routinely stated,” and “repeatedly describe” are all used just in the first couple of pages as they introduce the policy. But make no mistake, this is not established, routine, or consistent. It’s beyond what has ever been done before.
They presented this policy change in a misleading way. Here’s part of their social media post:
News reports have picked up the tone of this message. PBS stated “Foreigners in U.S. must apply for green cards abroad, new Trump administration rule says.” The Washington Post said “New rule requires most green-card applicants to apply from outside U.S.” Reuters said “US tells foreigners seeking green cards: Return to your countries to apply.” That’s not quite true. They are saying they intend to deny people making it very risky to apply, but you can file and submit evidence of discretion. You can see what this messaging will do: people who don’t have lawyers to help them navigate the process will leave the country, without ever knowing they were eligible to apply for adjustment of status and win their case.
One more note: I’m annoyed by the use of the term “loophole.” It’s not a loophole. It’s the law. Congress wrote it that way. But I guess the Administration only cares about following the text of a statute when it’s to their benefit.
[1] There are categories of people who can file to adjust as well, mostly for humanitarian purposes, but that is not the focus of this article.