New USCIS Adjustment of Status Memo: What Applicants Should Know

A recent USCIS policy memorandum concerning adjustment of status (AOS) has generated significant discussion within the immigration bar and understandable concern among applicants with pending or upcoming cases.

The memo emphasizes that adjustment of status is a discretionary benefit and appears to direct officers to place greater focus on discretionary considerations when adjudicating Form I-485 applications. In response, many applicants have asked whether adjustment of status is effectively coming to an end or whether they should abandon pending applications and pursue consular processing instead.

At this stage, the answer is no.

Many immigration attorneys have questioned whether parts of the new memo are consistent with the law that Congress actually enacted. Adjustment of status was created by Congress through INA § 245 to give eligible individuals a way to become permanent residents without having to leave the United States and complete the immigrant visa process at a U.S. consulate abroad. In fact, more than sixty years ago, the Attorney General recognized that this was the very purpose of the statute: to allow eligible applicants to obtain permanent resident status from within the United States rather than requiring them to depart and process overseas.

For that reason, many practitioners believe any interpretation suggesting that adjustment of status should be reserved only for unusual or extraordinary circumstances is likely to face significant legal challenges. How this will be settled through litigation remains to be seen, and of course will take time.

In the meantime, applicants should understand that there is still substantial uncertainty surrounding implementation of the memo. It remains unclear whether USCIS intends to apply the guidance primarily to newly filed cases, to pending cases, or both. Field offices around the country are also still working through implementation, and reports suggest that adjudication practices may vary as additional guidance is issued.

One development that has emerged from attorney reports nationwide is the appearance of several recurring questions at adjustment interviews. Although these questions are not being asked in every case, they may provide insight into the issues officers are evaluating:

1. Why did you apply for adjustment of status instead of consular processing?

Officers may seek to understand why the applicant chose to pursue permanent residence from within the United States rather than through a U.S. consulate abroad.

2. Are there any factors that would prevent you from pursuing consular processing?

This question appears designed to explore practical, legal, humanitarian, family, or financial reasons why consular processing may be difficult or inappropriate.

3. Do you have any family still living in your home country?

Applicants may be asked about family ties abroad as part of a broader review of their personal circumstances.

4. Why did you not return to your home country when your period of authorized stay expired?

This question focuses on the applicant's immigration history and the reasons they remained in the United States.

Given these developments, applicants should prepare adjustment cases more carefully than ever. It may be prudent to gather documentation demonstrating positive discretionary factors, including family ties in the United States, employment history, tax compliance, community involvement, educational achievements, evidence of rehabilitation where applicable, and other indicators of good moral character.

Most importantly, applicants should avoid making major decisions based solely on social media discussions or speculation. Every case is different, and the impact of the new policy may vary considerably depending on the applicant's immigration history, eligibility category, and personal circumstances.

If you have a pending adjustment application or an upcoming interview, now is a good time to consult with an experienced immigration attorney to evaluate your specific case, discuss potential discretionary issues, and develop a strategy tailored to your individual circumstances.