Daily TribuneThe memo explains that adjusting one’s status in the US has long been considered a discretionary privilege by the courts, framing it as a form of extraordinary relief requiring the presence of extra unique circumstances to justify a favorable exercise of discretion.
To call it a controversial memo with far-reaching implications is an understatement.
In fact, to use a baseball metaphor, it’s like throwing a 100-mph curveball to an unsuspecting batter that hits him flush in the face, shattering his nasal bones. In other words, a brutally surprising act with a brutally agonizing impact.
Like a nasty curveball, the USDHS — without warning — released last week a policy memo declaring an adjustment of status “a matter of discretion and administrative grace” and describing it as “an extraordinary relief that permits applicants to dispense with the ordinary consular visa process.”
To fully grasp its implications, a backgrounder is in order. In layman’s terms, an adjustment of status is the process by which a non-immigrant in the US is allowed to convert to permanent resident status (green card) without having to leave the country to apply for an immigrant visa at an American consulate abroad, usually in the applicant’s home country. This generally requires an underlying immigrant petition or asylum application approval with a current priority date, i.e., an immigrant visa number is immediately available.
Obviously, being allowed to adjust one’s status while in the US has many advantages, foremost among which is the convenience of not having to travel back to one’s home country to undergo consular processing, which can take months, even years in some cases.
Another advantage is the perceived leniency of USCIS officers vis-à-vis American consular officers abroad. Moreover, the risk of being stranded indefinitely outside the US in case of an adverse visa decision is another factor against the consular processing option. In fact, green card applicants have always been apprehensive to leave the US for fear of not being able to reenter in the future, especially those with questionable immigration status.
The subject memo, citing a litany of cases, further explains that adjusting one’s status in the US has long been considered a discretionary privilege by the courts, framing it as a form of extraordinary relief requiring the presence of extra unique circumstances to justify a favorable exercise of discretion.
Thus, according to the memo, the burden of proof — a hefty one at that — must generally lie with the applicant to convince the USCIS of one’s eligibility for adjustment of status.
Still, what’s gravely concerning is that even those with valid status, including people holding dual intent visas such as H-1B and L-1A, are subject to the new policy. This means that being in compliance with the terms of one’s visa is no longer considered a guarantee of adjustment of status eligibility.
The most damning impact, however, is reserved for people with prior status violations who have historically been allowed to adjust status in the US, mostly immediate relatives of American citizens. Indeed, having to go through consular processing may expose these people to years, if not decades, of reentry jeopardy unless a corresponding waiver is obtained beforehand.
Despite the nasty curveball, all is not lost, however. Umpires can always walk a targeted batter to first base or eject a headhunting pitcher. Indeed, the memo, for all its sneaky origin and projected brutal impact, may still be struck down by the umpires in judicial robes as an invalid exercise of rule-making power.
