Don’t Panic about the USCIS Memo

Yesterday, on a Friday before a long holiday weekend, the U.S. Citizenship and Immigration Services (USCIS) released a memo characterizing adjustment of status as “a matter of discretion and administrative grace, and an extraordinary relief.” While this seems at first glance like a radical departure from nearly 75 years of immigration law practice, we encourage folks not to panic.

What is Adjustment of Status?

For the uninitiated, an adjustment of status (AOS) is exactly what it sounds like: an immigrant who is legally living in the United States under a non-immigrant visa asks the U.S. government to adjust their immigration status so they can apply for permanent residence (commonly known as a green card) without having to return to their home country. This process has been in place since Congress passed the Immigration and Nationality Act (INA) of 1952. For example, say a model from the Czech Republic enters the U.S. on a short-term business visa, meets an American, falls in love, and marries him. She could apply for an adjustment of status to obtain a green card and eventually become a naturalized U.S. citizen.

What Does the USCIS Memo Say?

While the USCIS memo focuses on the discretionary nature of an AOS decision, we do not believe that means that immigrants seeking AOS should lose hope. The fact is that federal law, federal immigration regulations, and more than half a century of case law have established that the totality of the circumstances must be considered in each individual case. That has always been the case and will continue to be. As the memo itself states, “adjudicators must weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.”  The Board of Immigration Appeals in 1970 stated that “favorable factors such as family ties, hardship, length of residence in the U.S., etc. will be considered as countervailing factors meriting a favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion.”  Matter of Arai, 13 I.&N. Dec. 494 (BIA 1970).  No memo can overrule Board precedent.

We have time and again seen that when a USCIS officer hears the individual story of an individual immigrant, they typically agree that these factors weigh in favor of granting an adjustment of status. This is particularly true when the applicant has a solid employment/educational history and/or an American spouse or child, as advancing economic growth, ensuring a robust immigrant labor force, and promoting family unity were all core legislative purposes for creating the AOS process in the first place, as the USCIS’s own policy manual explains.

What the USCIS memo does make clear is that it has never been more important to have a skilled and experienced immigration attorney at your side if you are seeking an AOS. Please contact us at Benach Pitney Reilly if you need assistance.