Immigrants applying for green cards are already seeing the impact of the Trump administration’s new policy announced Friday, attorneys say.
The abrupt policy shift outlined how U.S. Citizenship and Immigration Services (USCIS) views the process known as “Adjustment of Status,” or AOS, as one to only be used in exceptional circumstances, and that a large proportion of applicants who are not seeking a green card based on family ties should return to their home countries for processing, rather than remaining in the U.S.
USCIS’ announcement sparked confusion and concern among immigrants and their attorneys, with details on who exactly would be affected left unclear.
“It seems to me that USCIS rolled out this policy without preparing its officers or providing them with much, if any, training or guidance,” Elissa Taub, immigration attorney and partner at Siskind Susser in Tennessee, told Newsweek. “I can imagine that many officers are just as confused or frustrated by this policy as we are.”
Some Applicants See Changes, Others Don’t
After USCIS announced the new policy Friday, immigrants applying for green cards faced confusion over whether the new application process, which could force them to return home while waiting for their case to be decided on, applied to them.
USCIS was forced to clarify that H-1B holders would not be required to leave the country when applying for permanent residency, saying those who provided an economic benefit to the U.S. would likely be able to continue on the existing path.
Then, as the week got underway following a long weekend of debate around the policy, green card interviews resumed, with some immigration attorneys reporting that their clients were facing new questions as a result of the shift.
“I’m hearing conflicting reports about USCIS’s application of the memo,” Taub said. “From some colleagues, I’ve heard that during interviews over the past day, USCIS officers have asked the applicant questions about why they didn’t return home to apply for their green card. Other colleagues report that USCIS isn’t asking any new questions at interviews.
“In the meantime, I had an employment-based adjustment of status application approved for a physician client on Monday with no mention of the memo.”
Angelo Paparelli, partner at Vialto Law in Los Angeles, said he had heard attorneys reporting applicants were being asked:
- What was your intent when you came to the U.S. with your visa?
- Why didn’t you just consular process instead of filing AOS?
- What factors prevented you from consular processing?
“The answers to these questions will vary widely. This points to the need for noncitizens in the green card queue to seek advice immediately from competent immigration counsel,” Paparelli told Newsweek.
The American Immigration Lawyers Association (AILA) told the Associated Press that applicants who had interviews Tuesday had faced new questions, including an immigrant married to a U.S. citizen asked why they had not returned home to apply for their green card there, despite the change not affecting that category.
The confusion unleashed by the memo, sent to USCIS officers for immediate implementation, has appeared to unravel a norm set over several decades that immigrants in the U.S. as students or temporary workers, as well as those married to American citizens, could apply and wait for their green card in the U.S., so that they would not face disruption.
In its Friday memo, USCIS described that as an extraordinary exception, rather than the rule.
“This is no time for DIY immigration or reliance on sketchy immigration consultants,” Paparelli said. “Deciding whether and when to leave the country and consular process or attend an adjustment interview in the company of an experienced immigration lawyer are momentous. Decisions made now will risk lifelong adverse consequences if poorly considered.”
New Green Card Process: What To Know
When asked by Newsweek if USCIS officers had been given new directives on conducting already-scheduled interviews, and whether there was clarity on to whom the new process applied, a Department of Homeland Security (DHS) official said the government was restating “longstanding law and policy.”
Officials said in the memo that even if applicants technically meet the requirements for permanent residency when they are about to apply in the U.S., as their visa comes to an end, they will still need to return home and wait for the U.S. State Department to process their case.
The memo formally directed USCIS officers to treat AOS as an exceptional, discretionary benefit, and to apply that standard more strictly in practice.
DHS said Wednesday that the policy would not stop any immigrant from obtaining a green card, if they legitimately and properly qualify for one. The official added that it would have “no noticeable impact” on highly qualified and skilled applicants from getting permanent residency, as they benefit the national interest.
Attorneys do not appear reassured that the policy will be implemented evenly.
“My concern is that applicants’ experience will depend on what type of application they filed (employment or family-based), where it’s being handled, and who the officer is,” Taub said. “Because USCIS officers are anonymous, unless there is an interview, we often do not know where our clients’ cases are being handled or who is handling them.”
In the immediate aftermath of the memo release, some attorneys were talking about legal challenges, saying the change would not stand up in court. At the moment, these have not been filed, but with the policy realistically only if effect for two days and the full impact of the policy change still being determined, lawsuits remain a possibility.
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