The Trump administration’s latest move to recast adjustment of status as an ‘extraordinary discretionary benefit’ and push green card applicants towards consular processing abroad is expected to trigger immediate litigation, according to immigration attorneys. In fact, the policy could also disrupt the H-1B-to-green card pathway via adjustment of status, relied upon by lakhs of Indians.
The memo issued Friday by the US Citizenship and Immigration Services (USCIS) directs officers to treat adjustment of status as an ‘extraordinary form of relief’, and says applicants should generally pursue immigrant visas through US consulates abroad instead of obtaining green cards from within the US.
Kripa Upadhyay, partner at Buchalter, a law firm, said the memo is likely to be challenged soon in the courts, as it is in direct contravention of the Administrative Procedures Act, which calls for issue of the proposal, inviting comments and its review, before final rollout.
The scale of disruption could be massive. Doug Rand, former official at the US department of homeland security (DHS), says in a typical year the US approves more than one million people for green cards, roughly half of whom adjust status from within the US. “The purpose of this policy is exclusion,” Rand said, warning that forcing applicants abroad could leave them vulnerable to the doctrine of consular non-reviewability, where visa denials by consular officers are difficult to challenge in court. Immigration attorneys warned that a buried footnote in the memo could fundamentally alter the treatment of dual-intent visa holders such as H-1B and L-1 (intra company transfer) workers.
With more than 12.6 lakh Indians, including dependants, waiting in employment-based green card categories, the policy has triggered anxiety across the Indian diaspora. Until now, eligible H-1B holders could file Form I-485 for adjustment of status and complete the green card process within the US itself. Ashwin Sharma, a Jacksonville-based immigration attorney, said the Trump administration appears to acknowledge dual intent on paper but undermines it through a footnote.
“That specific footnote dictates that simply maintaining lawful status in a dual-intent non immigrant visa category is no longer sufficient on its own to warrant a favourable exercise of discretion.”
“The policy now is to require these frequently vetted professionals to affirmatively submit additional discretionary evidence to prove they deserve to stay in the US rather than being arbitrarily forced abroad to file their immigrant application and face a massive consular backlog,” he added.
Rajiv S Khanna, managing attorney at Immigration.com, said officers need to see affirmative records for why an applicant deserves to adjust status while in the US. “My immediate advice to Indian nationals with pending I-485 cases: do not withdraw. Build an affirmative record now of your taxes, your contributions, your family ties, your professional standing and other evidence of roots in the US.
The Supreme Court’s 2022 decision in Patel v. Garland stripped federal courts of jurisdiction to review most factual findings in adjustment cases. Whatever record you build at the USCIS level is effectively the only record that will ever matter. Prepare it carefully.”
According to some media reports, factors such as national interest or economic benefit may also weigh in, in deciding if an applicant is eligible for adjustment of status. The alternative of consular processing for green card applicants is impractical –– consulates in India are already backlogged with H-1B stamping interviews, the memo will result in delays, job-disruption, family-separation and hardship for green card applicants.
