Rishi P. Oza
By Rishi P Oza
Days before the Memorial Day weekend in May, the US Citizenship and Immigration Service issued a Memorandum stating that the agency would utilize its discretion in approving adjustment of status applications stating that such approvals were “extraordinary” forms of relief that required “administrative grace.”
Predictably, the reaction to the agency’s memorandum was swift and vocal, as immigrant groups and the larger immigration community reacted with confusion to what appeared to be a rather abrupt change in USCIS’ decades-long practice of adjudications.
To be clear, adjustment of status is the process undertaken by USCIS to convert an individual from a nonimmigrant status (i.e. H-1B, F-1, spouse or fiancée) to that of a green card holder. The AOS process requires an individual show that she has not only submitted a properly completed application but meets both the statutory requirements for approval and is also worthy of a favorable exercise of discretion in getting approved.
In practice, unless an individual’s case has significant negative factors (i.e. fraud, crimes, etc.), an individual’s statutory eligibility was a fairly strong indication of approval.
For purposes of context, the core tenet of the memorandum – the grant of adjustment of status is discretionary and not mandatory – doesn’t exactly break any new ground. USCIS’ argument that the agency isn’t required to grant adjustment of status just based upon eligibility is nothing new. Most immigration benefits, from the issuance of work permits to waivers, are inherently discretionary, meaning that the agency is not forced to approve an application, but does so after balancing the favorable factors against the unfavorable factors of a given case.
In its Memo, USCIS provides the example of two cases – Matter of Blas, 15 I&N Dec. 626, 628 (BIA 1974; A.G. 1976) and Chen v. Foley, 385 F.2d 929, 934 (6th Cir. 1967) – both of which evidence factors that are well-outside the norm of typical applicants for adjustment of status. In those cases, the individuals applying for green cards displayed behavior (lying on applications, failing to depart when ordered, asserting that spouses abroad were dead when they were not, etc.) that any normal adjudicator would likely find unworthy of approval. The pattern of deception that was exemplified in these cases made clear that these two applicants were not meritorious of USCIS’ discretion in approving their respective cases.
However, these two cases are not emblematic of the vast majority of applicants for adjustment of status. While filings for visa overstays are certainly common (i.e. individuals that overstay B-2 or F-1 status), the majority of filings are submitted by individuals that continue to be in lawful status. The prospect of sending individuals that are otherwise eligible for green cards en masse to the US Consulates abroad, which are already overwhelmed with overseas applicants is nonsensical policy. The conclusion appears to be recognized by USCIS, which despite the memorandum, is still approving adjustment of status filings.
The agency is applying more scrutiny to filings for individuals that are out of lawful status and the prospect of potential removal proceedings remains, but the last two months since the announcement of the memo has not produced a groundswell of denials that was initially feared. Because the Administration is once ramping up removal operations, concerns about the initiation of removal proceedings are heightened, but an individual who is statutorily eligible to adjust status and in lawful status has no cause for concern that the government would (or is even legally eligible) to start removal proceedings.
At the risk of sounding self-serving, this places an emphasis on having competent legal counsel during the entirety of the process. The immigration process is often stressful and for most clients, one of the few times that they interact with attorneys (fortunately!). Mistakes can unfortunately lead to life-altering circumstances; this is not meant to raise alarm, but merely to raise awareness. Can individuals apply for green cards without an attorney? Of course. However, regular individuals can also fly a plane or attempt heart surgery – whether or not an individual can do something doesn’t necessarily make it a good idea.
The stakes in the immigration world have been ramped up considerably by the Trump Administration – meeting this challenge with skill and competence helps to ensure a smooth process for everyone involved.
Rishi P Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: roza@rbrownllc.com.
