BREAKING: Trump Administration Tells Foreigners to Apply for Green Cards in Home Countries

In a policy memorandum released today, just ahead of the Memorial Day holiday, the Trump administration announced that temporary visa holders seeking green cards should leave the United States and complete their immigration process through consular processing in their home countries.

But is adjustment of status completely off the table? No. While the government has made clear that individuals intending to immigrate to the United States are generally expected to pursue immigrant visas abroad, adjustment of status remains a discretionary pathway to a green card.

When deciding whether to exercise discretion to grant adjustment of status in the United States, USCIS officers will apply a “totality of the circumstances” analysis, weighing both favorable and unfavorable factors before reaching a decision.

Overview

For decades, Adjustment of Status has been one of the most reliable pathways to apply for a green card for immigrants already living in the U.S., who entered the country lawfully. This process has involved filing the I-485, remaining in the country while the green card case is pending, waiting for an interview, and receiving a final approval.

The ability to apply for adjustment of status has not been taken away with today’s announcement, however, the sense of security that applicants once had has been blurred.

The Policy Memorandum

In its policy memorandum, the government stressed that individuals admitted to the United States on temporary visas (tourist, student, work visas, etc.) are generally expected to leave the country rather than pursue Adjustment of Status from inside the U.S.

Instead, those wishing to remain in the U.S. permanently are expected to apply for an immigrant visa from abroad. But today’s announcement does not prevent those who qualify from seeking adjustment of status, although applicants should exercise greater caution and understand that certain factors may negatively affect their chances of approval.

Policy Changes

When exercising their discretion to approve a green card application, USCIS officers will conduct a totality of the circumstances analysis, balancing both positive and negative factors before making a final decision.

It is important to note that none of these factors are new. They reflect longstanding policies that have been in place for decades. Today’s memo simply reiterates officers’ existing duties when determining whether to grant adjustment of status as a discretionary benefit.

The factors that may negatively affect approval include:

Violations of immigration laws or conditions of immigration status held by the applicant
Current or previous instances of fraud
False testimony in dealings with USCIS or any government agency
Whether an alien’s application for admission or parole violated the laws in place at the time the violation occurred
Any conduct of the alien after admission as a nonimmigrant or parolee that is inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers when applying for a visa, admission, or parole

Failure to comply with the terms of nonimmigrant admission or parole is weighed the most heavily, including remaining in the United States beyond the period of authorized stay—where the overstay reflects an intent to reside permanently in the U.S. despite the availability of the regular immigrant visa process abroad.

Officers are also reminded to consider the following factors, when assessing the totality of the circumstances:

Family ties
Immigration status and history
The applicant’s moral character
Any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion

What this means for you

A green card case that might have looked like a strong filing in the past may require a much stronger evidentiary package from this point forward, including proof of community involvement, proof that you are abiding by all laws, and other documentation demonstrating positive contributions.

Officers may look back at your full immigration history—how you entered the country, what you disclosed during consular processing, any gaps in status, unauthorized employment, changes in visa type that may raise concerns, and any inconsistencies or misrepresentations, even if they occurred long ago. Such factors will be reassessed in the officer’s discretionary analysis.

For those who have not yet filed, the choice of applying for a green card in the U.S. has become more difficult. The government has made clear that it favors applicants returning to their home country to pursue their immigrant visa abroad, but seeking adjustment of status remains a viable option. For those with any flaws in their record, applying abroad may be a better choice due to closer scrutiny of cases filed with adjustment of status.

The bottom line is that eligible applicants can still apply for adjustment of status. Officers must provide written explanations for any denial, and applicants are still entitled to due process.

Looking Ahead

It is highly likely that those who are denied adjustment of status in the coming months will bring lawsuits in federal court. This could trigger a wave of litigation that could delay implementation of these policies while courts consider the merits of any lawsuits.

The Law Offices of Jacob J. Sapochnick is closely monitoring these developments and will provide further updates on our blog.

Contact Us. If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.

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