Pabian Law Clients and Friends,
I hope all is well. We want to provide a quick update about the recent U.S. Citizenship and Immigration Services (USCIS) policy memorandum that caused significant concern in the immigration community.
As discussed in our prior Client Alert, the policy memo suggested that certain individuals who are currently able to apply for U.S. Lawful Permanent Residency (green card) through the adjustment of status process from within the United States could instead be required to complete immigrant visa processing abroad through U.S. embassies and consulates in the applicants’ home countries unless the applicants could show “extraordinary circumstances”. The memo created uncertainty for employers and foreign nationals alike, particularly because it appeared to limit options that many applicants have traditionally relied upon to remain in the United States while pursuing permanent residence.
Since the issuance of the memo, USCIS has issued additional guidance that appears to ease some of those concerns. In a statement provided to multiple news agencies, a USCIS spokesperson stated:
“While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances.”
What this update means for Pabian Law clients:
While USCIS has not yet defined the terms “economic benefit” or “national interest”, these could potentially mean that individuals filing for a green card based on employment may still be able to apply for a green card within the U.S., while other applicants, like family-based cases, may need to apply abroad. In prior instances of providing exceptions in the “national interest”, USCIS has looked at factors such as if the applicant’s work supports critical infrastructure in the US like finance, food and agriculture, healthcare, etc.
This statement appears to be a meaningful departure from some of the more restrictive interpretations of the original memo that circulated when it was first released.
USCIS is still developing procedures for implementing the policy, and the agency has emphasized that decisions may depend on the facts and circumstances of each individual case.
Under current policy, USCIS must weigh positive and negative factors when exercising discretion in deciding adjustment of status cases. Positive factors warranting approval include:
- family ties to the US
- length of residence in the US and whether it was lawful
- ownership of real estate or a business in the US
- employment history
- education
- compliance with tax law
- community service
Negative factors include:
- absence of family ties in the US
- short residence in the US
- unauthorized presence and employment in the US
- history of unemployment
- criminal history
There is still uncertainty about how the new policy will ultimately be applied and which categories of applicants may be affected.
We will continue to monitor USCIS guidance closely and provide updates as additional information becomes available. As we mentioned in our initial Client Alert on this topic, litigation is likely and the entire memorandum could be struck down by a court.
Our Plan Going Forward for I-485 Cases
Based on this new guidance, our plan is to continue filing adjustment of status (Form I-485) applications as we have previously for those who otherwise qualify. At this time, we do not believe the recent policy developments warrant delaying or changing filing strategies for most cases.
Our filings already include substantial evidence demonstrating the positive contributions of the applicant, including their employment, skills, residence history and criminal history. As a result, we believe many of our cases are well-positioned under the framework outlined in the recent USCIS statement.
As an additional precaution, we will begin advising employees to collect documentation that further highlights positive discretionary factors and their ties to the United States. Depending on the circumstances, this may include:
- Recent tax returns;
- Evidence of homeownership or other property ownership;
- Records of volunteer work or community service;
- Documentation of professional achievements and contributions;
- Evidence of family, community, and economic ties to the United States.
For applicants who are scheduled for an adjustment interview, we may recommend bringing copies of these materials to the interview in case the officer wishes to discuss factors relating to economic benefit, national interest, or other discretionary considerations.
We will continue monitoring USCIS implementation guidance and will adjust our recommendations if additional requirements or expectations emerge.
Thank you,
Keith and the Pabian Law Team
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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