United States: Frequently Asked Questions on the New USCIS Adjustment of Status Policy Guidance

What does the new policy guidance say?

The new USCIS guidance is framed as a reminder to USCIS officers of their discretionary authority in adjudicating AOS applications. The memorandum instructs officers to determine whether the facts of a particular case support approving the application in the United States or whether the applicant should instead be required to seek permanent residence through consular processing abroad.

While USCIS discretion in an adjustment of status adjudication is not new, USCIS’s renewed emphasis on immigrant visa processing at a U.S. consulate abroad as the standard green card pathway and the agency’s characterization of the adjustment of status process as a grant of “extraordinary relief” from consular processing are significant departures from decades of USCIS policy and practice.

Did the policy guidance eliminate the adjustment of status process?

No. Adjustment of status remains an accessible and central pathway to permanent residence, contrary to widespread media reports that it is no longer available. The new agency guidance does not prevent foreign nationals from applying for adjustment of status, and it does not restrict USCIS officers from approving adjustment applications. The policy guidance may change the manner in which USCIS adjudicators review and adjudicate cases, but adjustment of status continues to be an important pathway because it generally allows eligible applicants to request employment authorization and travel permission (advance parole) while the adjustment application is pending and avoids the costs and potential disruption associated with having to travel abroad to apply for an immigrant visa. 

How does the new policy guidance change the adjustment of status process?

As noted above, the new guidance instructs officers to review the facts of each adjustment case to determine whether, in the totality of circumstances, the applicant demonstrates that the officer should favorably exercise their discretion to approve the application in the United States or whether the applicant should instead be required to seek permanent residence through consular processing abroad. The officer will balance positive factors against negative factors (if any) to make this determination.

The impact of the new policy guidance on pending and future adjustment of status applicants is likely to vary based on the applicant’s personal and immigration history and profile. The guidance is expected to make the already stringent adjustment process more demanding for all applicants, and in particular if an applicant has a history of interactions with law enforcement, immigration status violations, unauthorized employment, temporary entries followed by application for adjustment, or other facts USCIS may view as weighing against approval.

It is also likely that USCIS will expect applicants to present stronger positive factors in support of adjustment even where adverse factors are limited or absent. Current and future adjustment applicants and their immigration counsel will need to make a clear and well-documented case that the applicant merits a positive exercise of discretion.

What negative factors might USCIS consider in deciding whether an adjustment application warrants favorable discretion?

Current policy guidance provides a non-exhaustive list of examples of factors USCIS will consider adverse when weighing whether to grant favorable discretion in an adjustment context. The non-exhaustive list includes the following factors:

• Prior or current violations of immigration law;
• Prior or current violations of the terms and conditions of any immigration status held;
• Conduct after admission to the U.S. that is inconsistent with the purpose of stay (such as unauthorized employment or seeking to adjust status in a temporary visa status that does not allow dual intent);
• Conduct after admission to the U.S. that is inconsistent with prior statements made to immigrations officials at a consulate or U.S. port of entry (including statements related to strict nonimmigrant intent);
• Failure to depart the United States at the expiration of the foreign national’s authorized stay;
• Any criminal history;
• Country-specific facts and circumstances, such as insufficient vetting and screening information from the country of nationality or residence;
• False statements to U.S. government authorities;
• National security concerns;
• Any other conduct or indicators deemed negative by USCIS.

USCIS officers are required to review each case individually, taking all circumstances into account and weighing any negative factors against the positive factors presented in support of a foreign national’s adjustment of status application.

What positive factors might USCIS consider in deciding whether an adjustment application warrants favorable discretion?

A non-exhaustive list of possible positive discretionary factors includes:

• History of compliance with all laws, including immigration laws;
• Value and service to the community;
• History of employment;
• History of tax payment;
• Lengthy lawful residence in the U.S. and strong ties to the community;
• Education, training, and skills gained in the U.S.;
• Close U.S. citizen or lawful permanent resident relatives;
• Hardship in the event of an adverse decision;
• Indicators of good character.

As noted above, USCIS officers are required to conduct a case-by-case, totality-of-the circumstances test, weighing any negative factors against the positive factors presented in support of a foreign national’s adjustment of status application.

Are foreign nationals in H or L nonimmigrant status exempt from the new policy?

No, foreign nationals in H and L nonimmigrant status, who benefit from statutory dual intent, are not exempt from the new discretionary review process. Because applying for permanent residence is not inconsistent with H or L status, conduct related to nonimmigrant intent is less likely to be a negative factor for these foreign nationals, in contrast to foreign nationals who apply for permanent residence after a business visitor or tourist entry. But the adjustment discretionary determination will be made on the basis of several factors and the simple fact of H or L status is not determinative.

Foreign nationals in H and L status with any negative risk factors listed above should be sure to present USCIS with countervailing positive discretionary evidence. It is also recommended that H or L nonimmigrants without negative risk factors make some showing of positive discretionary factors in an adjustment context. The new USCIS policy guidance indicates that additional evidence is warranted from all adjustment applicants, though to varying degrees based on individual circumstances.

What evidence will I need to submit with my adjustment of status filing under the new policy?

The specific evidence to submit with an adjustment filing will vary based on the applicant’s particular history. You and your immigration counsel will need to discuss the kinds of evidence that best reflect your circumstances.

I have a pending adjustment of status application – will I need to submit additional information or documentation?

You and your immigration counsel will need to discuss what kinds of additional evidence or statements should be submitted with your pending adjustment of status application to make clear to USCIS that your application warrants favorable discretion under the new policy guidance. This will be a case-by-case determination based on your unique history and circumstances, but even applicants with no adverse facts in their personal history are likely to need to submit additional evidence.

Applicants who have already attended an adjustment interview may be scheduled for a second interview so that USCIS can make a discretionary assessment under the current policy guidance. Your immigration counsel will advise you on how to prepare if you are called to a second interview.

I have an adjustment of status interview coming up – should I attend? Should I bring additional documentation?

Foreign nationals who have upcoming adjustment of status interviews should plan to attend.  Before the interview, they should contact their immigration counsel to discuss how the guidance could affect interview preparation and case strategy.

What is the immigrant visa process? 

Immigrant visa processing is a lawful permanent residence application that is submitted to the U.S. Department of State and processed at a U.S. consulate in the foreign national’s home country or country of last residence. The pathway is also known as “consular processing” or “IV processing.”

The immigrant visa process involves submission of forms and documentation to the State Department, followed by a medical exam and in-person interview that take place outside of the United States. Only after an in-person interview at a U.S. consulate abroad can the green card application be adjudicated. If approved, the foreign national is issued an immigrant visa with which to enter the United States as a permanent resident (green card holder).

What are the important differences between the immigrant visa process and the adjustment of status process? Which pathway should I choose?

There are several important differences between these two processes. Each permanent residence pathway has advantages and disadvantages. You and your immigration counsel must review the facts and circumstances of your case to determine which is the most prudent path for you.

The key advantage to immigrant visa processing is that it is available even if the applicant failed to maintain their immigration status while in the United States or is otherwise ineligible to adjust status in the United States. It can also be useful for foreign nationals on temporary assignments abroad. However, immigrant visa processing requires travel back to the home country, which involves additional expenses and can be disruptive, particularly if the application encounters processing delays such as post-interview security clearances. In addition, IV applicants and their counsel have less control over the process.

IV applicants also have additional documentary requirements beyond those required for adjustment of status. In particular, they must present military records and police clearance certificates from each country in which they have resided, which can be challenging and time-consuming to obtain.

Unlike the adjustment of status process, with IV processing:

• Job portability to a new position in the same or a similar occupation is not available in employment-based cases.
• Dependents are not eligible for employment authorization while the IV application is pending. 
• Foreign nationals pursuing IV processing cannot obtain advance paroles and therefore must obtain nonimmigrant visas for international travel. 
• Attorney representation is not permitted at the interview stage. 
• If the IV application is denied, there is no formal process to request reconsideration or any possibility of judicial review (though it is possible to seek a State Department advisory opinion on legal issues pertaining to the denial).

In general, the adjustment of status process has significant advantages for eligible principal foreign nationals and their dependents, as illustrated above. But if there are factors in your immigration history or personal circumstances that increase your risk of adjustment denial under the new guidelines, you and your immigration counsel may determine that immigrant visa processing is preferable, provided you are eligible for immigrant visa issuance. Under current State Department guidelines, 75 countries are currently restricted from immigrant visa issuance. If your country is on this list, adjustment of status is your only pathway to permanent residence unless the State Department lifts the suspension. 

Will USCIS issue further guidance or release new information on implementation of the memorandum?

While USCIS may issue further guidance on the new memorandum, it is likely that our understanding of how USCIS implements the new guidance in practice will come primarily from Requests for Evidence and decisions in pending and newly filed adjustment of status applications.

It is likely to take some time before the impact of the memorandum is fully understood. The guidance is new to USCIS adjudicators as well as to the public, and there may be some variances in application as the new approach is implemented. As USCIS provides direction to officers, some cases may be delayed, held for supervisory review, or subject to additional evidence requests.

Will the new guidance be challenged in court?

It is possible that lawsuits will be filed to seek interim and permanent injunctions against the new guidance, which could pause or limit the effect of the memorandum.