USCIS Retreats from Adjustment of Status Memo After Widespread Backlash
USCIS faces backlash over Adjustment of Status (AOS) Memo
USCIS Retreats on Adjustment of Status Memo, Calls Memo “housekeeping and not a change of strategy.”
Last week, we told you not to panic over a May 22 memo by the USCIS regarding adjustment of status in which USCIS Director Joe Edlow called adjustment of status an “extraordinary remedy” and urging USCIS adjudicators to consider overstays and status violations as serious negative factors in determining whether an applicant should be granted adjustment of status in the exercise of discretion.
The memo generated a panic and a wave of opposition. The memo sought to undermine Congress’ intent in allowing people who entered the country lawfully to obtain their residence in the U.S. and for the spouses, parents and children to benefit on even more generous terms.
The memo rejected 60 years of practice and ignored key precedent decisions of the Board of Immigration Appeals, decisions that the USCIS can not undo with a memo.
Businesses, universities, religious organizations, immigration lawyers and advocates and families and individuals howled at this abrupt and cruel purported shift in the USCIS position vis-à-vis adjustment and uncertainty reigned for a week as lawyers and USCIS adjudicators did not know how the new standards would be implemented.
USCIS Downplays the Memo as a “Housekeeping Matter”
It seems that the USCIS got the message as on Friday May 29, they abruptly sought to downplay the significance of the memo. Instead of a significant policy shift, the USCIS stated, the memo “was just a reminder to officers of their discretionary authority.”
According to the New York Times, a White House official described the original memo as a “housekeeping matter, not a change of strategy.”
Why Adjustment of Status Remains a Core Part of Immigration Law
This is certainly welcome news that USCIS has chosen to favor sound and fury over a substantive shift in immigration policy. Although the USCIS backtrack was as predictable as it was necessary, the tenor of the original memo certainly made it seem like USCIS intended a wholesale revision of longstanding law, practice and policy.
Adjustment of Status is NOT a “Loophole”
In announcing the May 22 memo, USCIS spokesman Zach Kahler sounded quite bellicose, stating “From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances. This policy allows our immigration system to function as the law intended instead of incentivizing loopholes.”
Adjustment of status is not, Zach, a “loophole.” It is a bedrock part of the immigration edifice created by Congress to be a convenient and reliable means of obtaining residence and it has worked well for over 60 years. Like all edifices, it benefits from housekeeping but not a change of strategy.
What Applicants Should Take Away from the USCIS Reversal
If you have questions about how the USCIS flip-flopping might affect you, please contact Benach Pitney Reilly at 202-644-8600 or by sending us a message.