Last week, USCIS issued a Policy Memorandum stating that adjustment of status (i.e., obtaining a Green Card inside the United States) is an “extraordinary” form of relief and is only available to non-citizens as a “matter of discretion and administrative grace.” The memo reminds USCIS officers that with limited exceptions, “aliens” who arrive in the U.S. on non-immigrant visas “are generally expected to pursue an immigrant visa and admission from outside the United States if they wish to reside permanently in this country.”
While people who come to the U.S. on a non-immigrant visa and who later pursue AOS may be “otherwise eligible for adjustment of status,” their “attempt to avoid the ordinary consular immigrant visa process, usually accompanied by their violation of our immigration laws are adverse factors that the aliens may need ‘to offset… by a showing of unusual or even outstanding equities.'” “The absence of adverse factors, by itself, does not demonstrate such unusual or outstanding equities.”
The import of all this is that USCIS wants most people who come to the U.S. on non-immigrant visas to leave the United States and obtain their Green Card overseas through consular processing. How does this new memo apply to asylees, refugees, and people with pending asylum applications?
The short answer for asylees and refugees is: Not at all. The USCIS memo seeks to limit adjustment of status (AOS) under Section 245 of the Immigration and Nationality Act. Most people who are filing for AOS file under Section 245, including the vast majority of people seeking a Green Card based on a family relationship or an employment petition. However, refugees and asylees file for AOS under INA § 209, which is not discussed in the new memo. I suppose this is good news for humanitarian immigrants, though of course, USCIS has already done much to slow down the AOS process for such people.
It’s a different story for asylum seekers–people with pending asylum applications–at the Asylum Office (the memo does not apply to AOS in Immigration Court). While this group is not directly affected by the new memo, many asylum seekers have been in the U.S. for years waiting for their cases. During this long wait, they often find other ways to obtain status in our country. Most common is marriage to a U.S. citizen, but some asylum seekers become eligible for AOS based on other family relationships or through a job. If asylum seekers pursue AOS through one of these paths, they are subject to the new memo.
Here, as well, there is some good news (or whatever passes for good news these days). The USCIS memo essentially states that entering the U.S. on a non-immigrant visa and then seeking to AOS “contravenes… Congressional expectations” about consular processing, and should be viewed as a negative discretionary factor when determining a person’s eligibility for AOS. In other words, if a non-citizen qualifies for AOS, the Green Card will only be issued if the person deserves their residency as a matter of discretion. Filing for AOS, as opposed to processing the Green Card overseas, will be viewed as a negative discretionary factor and could be the basis for denying the request for AOS.
However, for asylum seekers who file for AOS, the very fact that they face harm in the home country could be viewed as a positive discretionary factor. In evaluating discretionary considerations in the asylum context, the Board of Immigration Appeals has held that the “danger of persecution will outweigh all but the most egregious adverse factors.” See Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996). So if you are an asylum seeker filing to adjust status in the United States based on a family relationship or a job, you would want to include evidence of the past harm and potential future harm in your home country–the same type of evidence that you would include with your asylum application. This evidence would also explain why you are unable to consular process–it is too dangerous for you to return to your home country. Add to that other evidence of good moral character and potential hardship, and hopefully that will be enough to overcome the negative factor of entering the U.S. on a non-immigrant visa and then seeking to obtain a Green Card without leaving the country.
Finally, I think it’s worth mentioning how strikingly dishonest the new USCIS memo is. The bulk of the memo is an attempt to justify the Agency’s claim that adjustment of status is an “extraordinary relief” that was somehow not contemplated by Congress when it created INA § 245 in 1952. A review of the original Section 245 shows clearly that Congress created the provision to allow “aliens” who entered as non-citizens to adjust status in the United States. That has been the law for more than seven decades; there is nothing unusual or “extraordinary” about it.
I imagine that the Agency would counter that the new memo does not change the law. It serves merely to “remind” officers that entering as a non-immigrant and then applying for AOS potentially violates the requirements of most non-immigrant visas. I’m just not buying this. It is a long-standing principle that ambiguous immigration laws should be interpreted in a way favorable to the non-citizen. But since he returned to office last year, President Trump has twisted and tortured the immigration law in every way possible to harm non-citizens. USCIS’s new memo is just one additional part of that effort.
While I hope that the Agency’s new interpretation of the law will be blocked by the courts, it does not apply to asylees or refugees, and I expect that asylum seekers who apply for AOS based on family relationships or employment will have a strong possibility of overcoming this new barrier to obtaining permanent status is the United States.
I hope you are doing well.
I am reaching out with a brief question regarding your recent article discussing the USCIS Policy Memorandum and its impact on adjustment of status adjudications.
I am currently preparing a short statement in support of my Form I-485 application, which is based on a Form I-130 petition filed by my U.S. citizen daughter.
For context, I have a pending asylum application with USCIS that has been open for approximately 12 years, and I have not yet been scheduled for an interview. My daughter is a U.S. citizen and is filing a Form I-130 on my behalf.
The paragraph I am considering including in my statement reads as follows:
Due to my pending asylum application and the length of time I have already resided in the United States, consular processing abroad would not be a practical or reasonable option in my circumstances. The I-130 petition filed by my U.S. citizen daughter provides a clear path to permanent residence, and I meet all statutory requirements for adjustment of status. I have established deep and long-term ties to the United States, including my immediate family relationships with my U.S. citizen children and grandchild, my continuous lawful presence, and my ongoing employment and tax compliance. In light of these factors, I respectfully request that USCIS adjudicate my Form I-485 in the United States as a matter of discretion based on strong family and humanitarian equities.
I would be very grateful for your opinion on two points:
1. In your view, is this paragraph sufficient as written, or would you recommend strengthening it further (for example, by explicitly referencing fear of return or other humanitarian considerations)?
2. In your experience, is it now generally important in I-485 cases to emphasize strong positive discretionary equities such as education, employment history, tax compliance, retirement savings, Social Security earnings, community involvement, and supporting recommendation letters? Or is there a risk of over-documenting these factors?
Thank you very much for your time and for your helpful article.
1 – I would explain why you overstayed your visa after you got here and why you are unable to consular process. These are questions that USCIS seems to be asking now, and it would be good to think about them and explain them in advance. 2 – I think it is helpful to mentioned the positive equities. You can also provide evidence about them, or you can wait to see if USCIS needs that. In some cases, they seem to be asking for evidence, and in others, they do not ask. I don’t think there is a risk of over-documenting, but maybe a middle approach would be to gather evidence so you have it, but only file it if USCIS asks (and if you have an interview, you can bring it to the interview so you have it if asked). Take care, Jason
Hey Jason,
How have you been? I have a quick question and would really appreciate your opinion.
I’m a green card holder through an asylum case. I filed my adjustment of status application back in 2014 and had my interview in 2019. The decision was delayed, and I eventually received my green card in 2022. The card says “Resident Since” 2021, which makes me eligible for naturalization.
I live in Brooklyn, New York, and I’m considering applying for U.S. citizenship. I have no criminal history, maintain stable employment, and file my taxes on time. I have never traveled back to my home country since coming to the United States. I have traveled to third countries to meet my family, and for some of those trips I used my national passport because I needed it for international travel.
Given these circumstances, do you think it is generally safe for me to apply for citizenship now? I’ve been hearing a lot of concerning stories online about increased scrutiny and changes in immigration policies, which has made me somewhat hesitant.
Also, have you handled any naturalization cases recently? If so, what are current processing times looking like, and have you noticed any significant changes in how these cases are being handled?
Thank you very much for your time and help. I really appreciate it.
Best Regards.
Hi Jason, thank you for everything you do to support the asylum community.
I have two questions:
1. Does the language used during the asylum interview affect the officer’s or supervisor’s decision? Specifically, does it matter whether I speak through an interpreter or conduct the interview in English?
2. Regarding the decision that is currently on pause — how long does it typically take to receive a result?
1 – I don’t think it much matters. If you need an interpreter, you should use one (and keep in mind that for some people, their language skills go down a bit at the interview because they are nervous, and also that some officers speak quickly or have an accent). Using an interpreter also gives you more time to think and the officer more time to type your answers. On the other hand, if you can avoid using an interpreter and can speak directly to the officer, that allows you to make your points in your own words (but remember to pause to give the officer time to type). My personal preference is for my clients to speak in English if possible, as I think the connection with the officer is important, but I do not think it makes a great deal of difference either way. 2 – For people from “banned” countries, no decisions are being issued (supposedly – once in a while, we hear about a case being denied, but those instances are rare). We do not know how long the pause will continue. For people from other countries, that are not banned, the wait times vary a lot. Some people get decisions in a few days or weeks, but most people seem to wait months for a decision. Take care, Jason
Hi I am asylee from india an married to a citizen from india recently. How does this effect my case and if i apply for green card based on marriage? thanks Jason
So you have asylum and your spouse is a US citizen? If so, you can apply for a Green Card based on asylum or based on the marriage. Applying for a marriage is somewhat more expensive and requires that you satisfy the public charge rules (meaning, you have to show that you won’t get government welfare benefits), but it should get you to US citizenship a bit more quickly. Assuming you remain married, you are allowed to apply for US citizenship 3 years after you get your GC based on marriage to a US citizen (assuming you meet all other requirements). If you get the GC based on asylum, the card should be back-dated one year, and so you would wait 4 years after that to apply for US citizenship. If you have any criminal or immigration fraud issues, it may be better to apply for the GC based on your asylum status, but talk to a lawyer about that. Take care, Jason
Hi Jason,
Have you heard about an internal memo requesting officers to systematically deny naturalization applications if applicants owe taxes? Even if they have active payment plans?
Thank you,
I have not heard that, but it would be consistent with their other efforts, and payment of taxes has always been a potential issue in naturalization cases. In the past, though, when a person was on a payment plan and making progress, they would be able to naturalize. Take care, Jason
Thank you Jason,
I am on a payment plan for &700 owed. I submitted my application but have no interview scheduled yet. It is a good idea to pay the amount in full before the interview or do they view the fact that I already owed taxes when filling as a negative factor? I thought being on a payment and honoring it wouldn’t be a problem.
I have not seen this as a problem, so I am not sure. I think if you could pay off the debt, that would be best. If not, you should bring documentation that you have a plan to pay off the debt and you are making payment. That should hopefully be enough. Take care, Jason
Hi jason,
Do you bu chance have an idea if cases which were removed from the immigration court docket due to covid in 2020 are now being assigned bcak to docket and judges.
Ive a pending IH in immigration court back in 2020 and it got cancelled cos of covid ans till date there is currently no date when i check eoir. It just states case is pening and no future hearing date. Whats your experience with such cases and have you had one recently ? Thank you
In the last year or more, we have seen many administratively closed cases moved back to the docket. I have even seen some that were closed 15 years ago returned to the active court docket. In a case like yours, that does not seem to have been admin closed, but that is still pending, I imagine that they would return it to the active docket at some point, and it is a good idea to keep an eye on it to see if that happens (especially because court dates can be scheduled with little advance notice). Make sure your address is current with the Immigration Court. Also, make sure you have your documents and are ready in case you have to move forward. Take care, Jason
Hi Jason!
I am doing AOS (family member), my lawyer is asking to provide all addresses (including) the initial one for my AOS form. He wants that to provide complete timeline to USCIS. While I agree with the idea, the form(I-130, I-485, I130-A) is asking me to provide the address only for the past 5 years. I was in the US for more than 10 years, and I do not recall my first address, and a few initial after that with the timelines. In my opinion it could cause more harm than good, if try to “estimate” or guess them.
I did provide the last address in my home country as the form required.
What is your opinion on this? Do you also ask applicants to provide all the addresses too even if the form asks for only 5?
Hello. I did my asylum interview with my family in January this year as i have been checking the case status and EOIR, the message from case status is always: the decision is pending while on EOIR says: there is no case: but i am surprised when I checked the case status today and it says: Decision was Mailed, I am from the banned country (Nigeria) but I will like to know if USCIS has lifted the hold on asylum interview decision or not. Please should I trust this message or not.
It would be highly appreciated.
Regards.
David
Nigeria is a “partially banned” country and my understanding is that USCIS was not issuing decisions for such countries. Maybe something has changed, since USCIS does not give us a lot of information. I think you will need to wait for the paper notice to see what it says. Hopefully, it is an approval, but if not, there is nothing you can do until you see USCIS’s reasoning. Take care, Jason
5 years is enough
The lawyer may be trying to respond to the new memo that I wrote about above, and given that it is new and there is little guidance, different lawyers have different ideas. I do not know if the lawyer has a specific concern in your case where he thinks it is important to document all your addresses since you came to the US. Maybe you can ask him for clarity about this, as I think your concern is legitimate, and maybe there is a way to approach it to avoid inconsistencies but to provide at least some of the info the lawyer thinks is needed (such as reviewing the I-589 or any older forms to see what addresses are listed there, or indicating your addresses in a more general way, and informing USCIS that you do not know the exact dates, but are providing a general timeline). Take care, Jason
Hi Jason, can you tell us what is happening in immigration court? Are denials and detainer orders being issued immediately that day? My Venezuelan friend has been referred to court. I am very worried that she will be detained at her hearing. I am thinking that it might be better for her to leave the US before this happens. Unfortunately her Venezuelan passport is long expired. She came to the US 10 years ago on a tourist visa as a child. Her mother filed for asylum and had a strong case, but the death threats were by the collectivos and the police refused to open a case, telling her she’d have to solve her own problem, so there is no hard evidence. Her mother has since married an American citizen and has her green card. Her mother’s case was closed and a new case opened for her, but unfortunately they dated it from last year rather than the date her mother originally filed it, so her overstay looks like years paper. If it’s likely that she will be denied asylum, would it be better to leave the US if she can and withdraw her case? Would she then face a shorter ban on returning to the US? And of course, avoid the dangers of a US concentration camp and being deported to an unknown country? Another issue is that she is gay and came out a little over a year ago. Could she make a VAWA claim based on facing violence in Venezuela? Thank you again for being so generous with your time and expertise. I contacted you several years ago about another very close friend. The good news is that she finally got her green card last summer. She and her husband have a 3-year-old who is a joy to all of us.
There was a period when people were being detained in immigration court, but we are not seeing that these days. It may vary by court – so it would be good to check with a local attorney at the court where the person will attend. Also, the majority of those targeted for detention entered without a visa at the border, and so if thus person entered with a visa, it is much less likely she would be detained. Also, if she were detained, since she entered with a visa, she would be eligible for release on bond (people who entered without a visa are not eligible for a bond, at least according to the Trump Administration, and so they have file a federal habeas corpus case before they can even apply for bond). It sounds like this person would have a decent asylum claim based on political persecution and sexual orientation. She can present the case and try to win, and request “voluntary departure” if she is denied, which would allow her to leave on her own. This would not prevent her from appealing. I recommend she talk to a lawyer, as it seems like she has a good case and could maybe win, and even if she loses, she is probably eligible for voluntary departure so she does not have to be worried about being deported to Venezuela (or a third country; also, the rule about deporting people to third countries generally only applies to people who entered without a visa after November 2019, so that should not be a problem for her either). Take care, Jason
Hi Jason,
Are there any updates regarding the green card application pause for travel ban countries? I read that some courts recently ruled the indefinite pause illegal. For context, my application is based on asylee status, and I have been waiting for 21 months now.
I know of at least one case where the court ordered USCIS to process cases for people from “banned” countries. However, USCIS did not yet take any action on those cases, and so they are going back to court again soon. As I understand that case, the ruling only applies to the immigrants who were actually part of the case, it does not stop USCIS from pausing anyone else’s case. I suspect there are probably other pending cases and so we will have to see how things go, as a court may eventually order an end to the pause. Of course, even if that happens, USCIS can appeal and so we may not see any changes for some time (USCIS could just end the pause on its own, and I suppose that is a possibility). Take care, Jason
Hi Jason,Hope you are doing well.
I entered the U.S. in 2021 on an F-1 visa and filed for asylum in 2022 after my circumstances changed. I maintained my F-1 status for about 2.5 years after filing asylum, and only later fell out of status while my asylum case remained pending for years without interview.
At this point, because I have now been out of status for more than six months, my understanding before this new memo was that an employment-based(NIW) adjustment inside the U.S. would likely be very difficult unless an officer was willing to favorably exercise discretion under Matter of Orban.
I also live with my parents, who are green card holders and do not speak English. I help them with many important daily matters, including doctor appointments, insurance, banking, paperwork, and communication-related issues With their work manager.They are also depending on me to help them for rent.
After reading your article and this new USCIS memo, I am wondering whether humanitarian and hardship-related factors like these may now actually help someone in my position more than before, especially given my pending asylum case and concerns about consular processing.
Overall, do you think this new discretionary framework makes a case like mine even harder due to lack of status more than 6 months and relying on matter of orban, or could these humanitarian and hardship factors now carry more weight than they did previously?
Thank you very much.
The memo would have no effect on your asylum case. If you were trying to get a GC based on employment, the memo would be relevant, and so you would need to explain why you overstayed your visa and why you can’t consular process. I would guess that your fear of persecution helps explain both those questions. You can also provide other evidence, such as that your parents need your help. It seems to me that the bigger issue is that you are likely not eligible to adjust status since you are no longer in lawful status. You might be able to AOS based on a BIA case called Matter of L-K- and INA 245(k). USCIS seems to inconsistently apply the rule about AOS under L-K-, and so if you want to AOS based on employment, you would want to discuss that with a lawyer before you applied, and you might also want to have a plan in place to try to consular process if the AOS does not work. If you are able to AOS based on Matter of L-K-, then you would need to address the issues in the new USCIS memo, but given your pending asylum application, you should have good reasons to overcome that memo. Take care, Jason
Hi Janine,
When is the yearly asylum fee due . Is there any specific date or you just have to pay every year?
USCIS or the court should notify you when the fee is due. If you prefer to pay before you get the notice, you can do that too (there is one payment portal for USCIS/asylum office and another for the immigration court). Take care, Jason
Hi Jason,
Any progress on issuing EAD for banned countries? Hopefully, they start issuing EAD cards before my receipt expires, which my company will take my job right away, and most probably post it due to thier business need.
I have not heard any updates. I imagine there are lawsuits pending about this, and so hopefully USCIS will either change the policy voluntarily, or they will be forced to change by a court. If I have news, I will try to post it here. Take care, Jason
“However, for asylum seekers who file for AOS, the very fact that they face harm in the home country could be viewed as a positive discretionary factor. In evaluating discretionary considerations in the asylum context, the Board of Immigration Appeals has held that the “danger of persecution will outweigh all but the most egregious adverse factors.” See Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996). So if you are an asylum seeker filing to adjust status in the United States based on a family relationship or a job, you would want to include evidence of the past harm and potential future harm in your home country–the same type of evidence that you would include with your asylum application.”
I want to follow up on this. I obviously will want to add that, but I am worried that they will just say what you described is just harm, not persecution. And to determine whether harm rise to the level of persecution, basically the field officers need asylum training…right ? Some people, asylum seekers, their harm or fear may not rise to asylum. But could a harm less than persecution also be a discretionary factor ?
I mean if people start to use fear of harm and persecution as a factor, officers will adjudicate whether they rise to the level of persecution…Does that mean, an adjustment of status case will, from now on, contain a subtask of asylum/credible fear adjudication, forcing the field officers to also become asylum officers ?
Would like to hear your thoughts, I know some people who really do have fear, but their fear might not be well-founded or their harm not rise to the level of persecution…
To comply with the new questions that the memo seems to be generating, a person needs to explain why they overstayed their visa and why they cannot consular process. Fear of harm (however defined) can explain those things. That alone may or may not be sufficient for the officer, but certainly, it would be a major consideration when determining whether it would have been possible for the applicant to return home. Take care, Jason
Hi Jason. What about those of us in removal proceedings with pending MC hearing, but we have approved I 140 and our priority date is current. How can this favor us?
In general, once you are in immigration court, the only way to get a green card based on an approved I-140 is to leave the US and consular process. This may be possible, but probably involves getting Voluntary Departure from the court, which allows you to leave without a deportation order. There may be some exceptions to the rule, which could allow you to get the GC inside the US, and so it is worth talking with a lawyer about the specifics of the situation to see if anything can be done and also to think about whether consular processing might be a realistic option. Take care, Jason
I am in full agreement.
I had my asylum interview a year ago ( after 10yrs), and my marriage interview 1 yr plus 2 month ago. No decision yet. How does this interpreted now. I.e already sumbitter all evidences on both but they did nothing.
It is still unclear how the new memo is being interpreted by USCIS officers. We are hearing reports of additional questions at some interviews, such as: Was there any reason that you could not consular process? Why did you overstay your visa after you arrived in the US? Other people are going to interviews and not getting any questions related to the memo. In terms of your asylum case, there is nothing to do, as the memo does not apply to that. For the marriage case, if USCIS already knows about the asylum case (which they should), that should explain why you could not leave the US to consular process. If you think they need more evidence on this point, you can send it to them to add to the marriage case. Also, presumably, if they need more evidence, they will request that from you. Take care, Jason
Did you read the news that TPS was extended for 6 months to Lebanon? https://www.reuters.com/world/middle-east/us-extends-temporary-protected-status-lebanon-until-november-2026-05-27/
How do you read the news? Good sign?
I have predicted that the new guy running DHS, Secretary Markwayne Mullin, will not be like Kristi Noem, who cancelled every single TPS that came up for review. Mullin said that he didn’t have enough time to review Lebanon’s designation and allowed it to renew automatically for 6 months. That is an unprecedented move in the current Administration because they have been cancelling TPS, left and right. At least, Mullin is trying to follow procedure.
I suppose it’s a positive sign, as under Kristi Noem, TPS for other countries was canceled even when conditions were still very bad. Of course, there is currently a war in Lebanon and so it makes sense to continue TPS, but doing what makes sense is pretty uncommon at DHS these days. We’ll see how things go from here – I can’t say I am feeling optimistic about the new Secretary, but this is a positive development. Take care, Jason