The US Department of Homeland Security (DHS) on Friday clarified its recent circular on seeking permanent residency, after an earlier announcement appeared to suggest that many applicants would have to leave the United States while waiting for their green cards.
Immigrants have been allowed to stay in the United States while they apply for their green cards but concerns were raised following the latest DHS circular. However, it has been clarified that the circular doesn’t mean a blanket policy change. “This was just a reminder to officers of their discretionary authority, which has always existed on a case-by-case basis,” a DHS spokesperson said in a statement. The spokesperson said groups that could potentially face greater scrutiny included individuals who overstay visas and applicants from countries whose citizens make extensive use of public assistance programmes.
Who Will Need to Go Abroad Then?
In its original announcement, USCIS stated that adjustment of status — the process through which a green card is granted from within the United States — would only be approved in “extraordinary circumstances”.
However, a DHS spokesperson later said: “This was just a reminder to officers of their discretionary authority which has always existed on a case by case basis. Aliens that provide economic benefits to the US and benefit our national interest will likely experience no difference in their immigration benefits adjudication process.”
The internal policy guidance issued to immigration officers also appears to take a more nuanced approach.
According to the memo, officers are instructed to consider a range of factors when deciding whether applicants should be allowed to complete the process inside the United States or be directed to a US consulate abroad. Those factors include the economic benefits of allowing a person to remain in the country and the impact that leaving could have on families.
Eddie Raleigh, a partner at immigration law firm Fragomen, told The Wall Street Journal that the guidance appeared to encourage greater scrutiny rather than introduce an entirely new requirement. “It does intend to have adjudicators be more judicious in whether or not to have someone adjust their status” from within the country, he said. Raleigh added that the USCIS memo “reads more as a suggestion to exercise more caution in approving cases than creating an entirely new bar applicants must clear.”
Immigration lawyers interviewed on the issue said employment-based green card applicants are likely to have a stronger case for remaining in the country while awaiting a decision. Many of those applicants already work in the United States on temporary visas such as the H-1B or O-1.
By contrast, lawyers said family-based applicants, including spouses of US citizens, may face greater uncertainty. Applicants with criminal records, even for relatively minor offences, or gaps in work authorisation could also face additional challenges.
Does the New Policy Apply to Pending Green Card Applicants?
Although the government has not explicitly addressed the issue, immigration lawyers say the policy appears to be affecting some applicants whose cases are already under review.
Several attorneys reported receiving requests from immigration authorities seeking additional evidence from applicants to support their case for remaining in the United States while their green card applications are processed.
One such request, reviewed by The Wall Street Journal, asked applicants to identify positive factors that should be considered by adjudicators. These included educational qualifications, employment history in the United States, military service and English-language proficiency.
At the same time, several lawyers said they were aware of green card interviews that proceeded normally without any reference to the new guidance.
Are Green Card Renewals Affected?
No. The adjustment of status process applies only to individuals seeking an initial green card. Applicants renewing an existing green card are not affected by the guidance.