Do green card applicants now have to leave the US to apply?

Last update: Friday, May 29, 11:00am ET.

The announcement claims that the laws around green card applications have been "ignored for years," and that allowing adjustment of status inside the US is a "loophole" that USCIS is now removing.

The announcement did not include details about how this new policy will be implemented. We will post updates on this page as they become avaiable. As of Friday, May 29, we have few concrete answers to the questions circulating, but these are our current thoughts based:

1. What counts as "extraordinary circumstances?" The "extraordinary circumstances" standard, and this is not a requirement of the AOS law as written. Instead, USCIS is allowed to exercise "discretion" when granting AOS requests. The USCIS Policy Manual has longstanding guidance on the factors officers should consider when decision how this discretion should be applied. USCIS is required to take into account any relevant factors cumulatively, as opposed to focusing on a small subset. The factors they are instructed to consider include:
   1. Family ties to the United States and the closeness of the underlying relationships.
   2. Hardship to the applicant or close relatives if the adjustment application is denied.
   3. Length of lawful residence in the United States, status held and conduct during that residence, particularly if the applicant began his or her residency at a young age.
   4. Compliance with immigration laws and the conditions of any immigration status held.
   5. Property, investment, or business ties in the United States.
   6. Respect for law and order, and good moral character (in the United States and abroad) demonstrated by a lack of a criminal record and evidence of good standing in the community.
   7. Honorable service in the U.S. armed forces or other evidence of value and service to the community.
   8. Compliance with tax laws.
   9. Current or past cooperation with law enforcement authorities.
   10. Demonstration of reformed or rehabilitated criminal conduct, where applicable.
   11. Community service beyond any imposed by the courts.
   12. Employment history, including type, length, and stability of the employment.
   13. Education, specialized skills, and training obtained from an educational institution in the United States relevant to current or prospective employment and earning potential in the United States.
   14. Absence of significant undesirable or negative factors and other indicators of good moral character in the United States and abroad.

1. I already have a pending AOS application. What will happen to it? Do I have to leave?
   1. USCIS did not indicate if it will apply the policy retroactively to cases already pending on May 22.
   2. Anecdotally, we are aware of multiple cases that were approved in the week that has passed since the memo was released. 
   3. It appears that USCIS may issue an RFE questioning why you chose to file AOS instead of consular processing. In our office, we plan to prepare assertive arguments explaining why discretion should be exercised to grant AOS based on the factors listed above. Definitely talk to an attorney about the best arguments for your case!
   4. In general, you can legally remain in the US while your I-485 is still pending. If it is denied, you can stay in the US if you maintained an unexpired temporary status (like H1B, E3, L1, etc.) throughout the application process. If you do not have an underlying temporary status to fall back on, you can no longer legally remain in the US after an I-485 denial. Consult an immigration attorney before making any decisions about what to do in your case after denial.
2. I was just about to file my AOS application. My I-140/I-130 indicates that I will adjust status in the US. What should I do? The best path will differ in every situation, so always consult an attorney about your case prior to action. In general, however, here are alternatives we will be considering with our clients in the coming days:
   1. File form I-824 to transfer your file to the consular processing system. This is a required step to switch to consular processing when the adjustment of status box was checked on the petition. Processing times for these requests will likely increase with an influx of applications, so it may be best to get an application in early. This is probably particularly advisable if you are not strong on the discretionary factors listed above. If the situation changes and it appears more desirable to adjust status in the US, you do not have to make another request to transfer your file back. You can change back to AOS simply by filing form I-485 in the US.
   2. File form I-485 as planned. In many cases, it may make sense to file form I-485 along with an argument and documentation as to why discretion is merited, focusing on the factors described above. The actual law surrounding AOS has not changed, and if you have many of the positive factors listed above, you may have a strong argument that discretion should be exercised in your case.
   3. Wait for additional clarification/results of lawsuits. If there is no urgent need to proceed with filing immediately, it may make sense to wait until details are released about implementation and monitor the progress of lawsuits challenging the policy. 
3. My I-140/I-130 indicates that I will consular process but I had changed my mind and was hoping to adjust status in the US. What should I do?
   1. You are in a good position, since your case will automatically be processed in the consular system, without the need for an additional application as described in #4 above.
   2. You may choose to simply proceed with the consular application, or wait and monitor the situation. If you choose to wait, stay in close contact with your attorney to make sure you don't pass the one-year contact requirement to keep a consular case active.
   3. If you remain legally in the US and the situation improves so that it is clear AOS applications will be accepted as usual again, you can simply file form I-485 to adjust status. This is true even if you had started on the consular processing paperwork. 
4. I am about to file an I-140/I-130 and want to adjust status in the US once it has been approved. Can I check the adjustment of status box on the application? You should always discuss with your attorney, but most cases filed during this period of uncertainty should likely indicate "consular processing," regardless of any hopes of future adjustment in the US. If AOS later becomes feasible again, you can adjust simply by filing form I-485, regardless of which box you checked on your petition.
5. I have a pending AOS application. Can I travel? It's particularly important to always discuss your travel plans with an attorney who can evaluate your situation before leaving the US!
   1. Generally, if you have a current H or L visa, you should be able to continue traveling using this visa during the AOS process.
   2. We are less confident about travel on an advance parole document at this time. If you are currently maintaining an underlying nonimmigrant status that would be wiped out if you travel with your advance parole card, you should probably refrain from travel until your green card has been adjudicated. While we wait to see how many pending applications they will deny based on the new rule, it is advantageous to have a nonimmigrant status to fall back on if your AOS application is denied. If you have traveled using your advance parole card and no longer have a nonimmigrant status, you will lose authorization to remain in the US immediately upon AOS denial. So keep your alternative status for as long as you can!

6. Can they really do this? For this extreme restriction, USCIS relies on the fact that the law gives it the "discretion" to adjust people in the US. This is a very twisted reading of the law, and will be immediately challenged in court.

   1. Prior to 1960, adjustment of status was limited to a narrow set of circumstances. Most immigrants had to return to their countries of origin to apply for a green card at a US consulate.  
   2. Congress decided that this situation was inefficient and disruptive to life in the US. Citing concerns such as family unity, administrative efficiency, and continuity of US-based work, Congress passed a law allowing those lawfully in the US to adjust status in 1960. 
   3. The text of this law, INA §245(a), reads "The status of an alien who was inspected and admitted or paroled into the United States...may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe." 
   4. The May 22 policy memo ignores the fact that the current law was intended to make adjustment of status routine and reduce the need to travel. Instead, it focuses on the fact that the Attorney General has the "discretion" to adjust people, and claims this gives them the authority to practically abolish AOS. Rather than a return to the law as USCIS claims, this is actually ignoring the current law and attempting to return to an older version of the law that Congress got rid of over 65 years ago.

If you would like to schedule a consultation to discuss with us in greater detail, you can do so here.