The Trump administration has signaled that, going forward, it will be harder for foreigners in the United States to seek permanent residence – a green card – without leaving to apply from their home countries.
The U.S. Citizenship and Immigration Services, the agency that oversees legal immigration, says that the memo it released last week is a reminder of existing policy. Making more people apply from abroad will prevent those whose applications are denied from being able to stay in this country, the agency says.
Immigrant advocates say the policy memo deviates from how the process has worked for decades and threatens to disrupt families, finances, and jobs. There is no guarantee an applicant will be allowed to return to the U.S. Citing concerns around vetting, the administration had earlier paused issuing immigrant visas for people from 75 countries, many of whom also face broader travel bans.
Why We Wrote This
For decades, many foreigners seeking permanent residency could apply for that status while in the United States. The Trump administration has recently said those immigrants are expected to apply from their home countries, potentially upending life for many applicants.
A mountain of questions remains, including the scope of applicants who could be affected by the USCIS memo, but the policy aligns with the Trump administration’s escalating crackdown on legal immigration. As of last year, more than 1.2 million green card applications were pending.
How do immigrants get green cards?
Since 1952, noncitizens have been able to seek green cards in two ways. They can pursue the process abroad through a U.S. consulate or apply within the United States via a process called “adjustment of status.”
Applying for a green card without needing to leave the U.S. has been possible for a variety of groups. Those include spouses of American citizens, people with employment-based visas, and others with temporary permission to live and work in the U.S. That said, adjustment of status isn’t available to everyone, including, generally, people who have worked without authorization.
If someone’s adjustment of status is denied – and they have no other status – they could be put into deportation proceedings in immigration court, and challenge that denial there. But if an applicant overseas is denied by a consulate, there is no judicial review.
What is changing now?
The May 21 USCIS memo called adjustment of status a “matter of discretion and administrative grace.” But official remarks – beyond the memo – offered something more concrete.
Going forward, immigrants in the U.S. temporarily who want a green card “must return to their home country to apply, except in extraordinary circumstances,” spokesperson Zach Kahler said in a statement. Applying from abroad, Mr. Kahler said, reduces the need to deport people who “slip into the shadows and remain in the U.S. illegally after being denied residency.”
He made other comments to the media that hinted at potentially broad exceptions to applying from abroad. Applicants who offer an economic benefit – or otherwise serve the national interest – “will likely be able to continue on their current path,” he said.
Amid the confusion, immigrant advocates were quick to criticize the apparent policy change.
“This is a rewrite of well-settled law,” said Shev Dalal-Dheini, the senior director of government relations at the American Immigration Lawyers Association and a former USCIS official, at a news briefing. “Rather than improving the immigration system and making us safer, this policy risks penalizing individuals who are trying to follow the law.”
The new chapter appears to have started. Ms. Dalal-Dheini said she is already aware of USCIS interviewers asking applicants about why they hadn’t left the U.S. to pursue a green card. Her organization is considering litigation to halt the policy’s rollout.
At the conservative Heritage Foundation, Simon Hankinson sees outcry over the memo as an overreaction. “Essentially nothing has changed,” says Mr. Hankinson, a senior research fellow at the foundation and former Foreign Service officer.
“It’s just pretty straightforward guidance to the field, reminding them what the law says” – that adjustment of status is meant to be discretionary, like immigration parole, he adds.
The administration is trying to add “rigor back into the adjudication process,” Mr. Hankinson says, and “make it less of a rubber stamp.”
What questions remain?
Lawyers have lots of questions at this early stage. For one, which visa holders will be directly affected by the new policy? And who exactly qualifies for exceptions now?
Mr. Hankinson expects the USCIS to issue more guidance to its personnel.
For immigrants concerned about their applications, it’s “absolutely imperative” to speak with a lawyer, according to Ms. Dalal-Dheini, as every case is unique.
The memo doesn’t affect current green card holders. Separately, though, the Trump administration has been scrutinizing lawfully present immigrants, including naturalized citizens, for possible fraud – which could lead to challenges to their status.