Some USCIS officers have begun asking green card applicants why they chose adjustment of status (AOS) instead of consular processing abroad following a controversial policy memo the agency issued on May 22, according to immigration attorneys.The lawyers told TOI that while many field officials are questioning applicants on why they should not proceed with immigrant visa processing in their home country, a few others have recently been approving cases without referring to the memorandum. Another section of USCIS staff is holding up the decision, waiting for more clarity and direction on the policy memorandum.TOI had reported on May 24 that the memorandum published by the Trump administration did not eliminate AOS for dual-intent visa holders such as H-1B and L visas.
Instead, it created a more discretionary arbitration framework, under which officers may ask applicants to prove why they deserve to adjust status from within the United States.It was Rajeev S. Khanna, the managing attorney at Immigration.com, has previously warned that USCIS officers will expect applicants to provide positive evidence supporting adjustment of status, including tax compliance, economic contributions, family relationships, professional standing and other indicators with strong roots in the United States.
Later, the New York Times quoted a Department of Homeland Security official as saying that the memo was not a sweeping policy change and that individual immigration officers would determine whether an applicant should complete the green card process abroad rather than in the United States.However, the memorandum remains in effect, prompting immigration lawyers to help applicants prepare more comprehensive evidence files in advance of AOS interviews and potential requests for evidence (RFEs).“For employees who are cleared to proceed with an AOS application, submitting a well-prepared filing that positively documents positive factors is more important than ever,” said Xiao Wang, CEO of Boundless. “This means going beyond standard forms such as including letters of employer support that talk about the employee’s specialized skills and economic contributions, documentation of long-term legal employment and tax history, and any other evidence that tells a compelling story about why this employee’s continued presence in the United States is beneficial.”
“Mitch Wexler, senior counsel at Fragomen, a global immigration law firm, noted that the AOS has always been discretionary regarding the law, and that the policy does not change basic eligibility requirements. EB-5 investors and employment-based applicants remain fully eligible to pursue AOS as they meet the legal criteria.“What has changed is the focus. USCIS is now directing officials to more clearly evaluate whether an applicant is entitled to an appropriate exercise of discretion, including whether it is appropriate for the applicant to complete the process in the United States rather than abroad,” he said.According to Wexler, officers are expected to apply a “totality of circumstances” analysis, weighing positive and negative factors. Potential negative considerations may include prior immigration violations or behavior inconsistent with status, while positive factors include long-term legal presence in the United States, stable employment, strong community ties, good moral character, and evidence that the applicant’s presence benefits the country.For EB-5 investors (investment-linked green card applicants), many of these positive factors are built into the program itself, given its focus on capital investment and job creation. Likewise, professionals on an H-1B visa with an established employment history and long-term residency in the United States may make strong contributions under this framework.Cases involving prior immigration violations, unlawful presence, unauthorized employment, criminal history or fraud allegations may face heightened scrutiny, said Charles Cook, co-founder of Cook Baxter.““Some applicants may receive requests for evidence (RFEs) seeking information about positive equity such as family ties, employment history, tax compliance, community involvement and other favorable factors,” he said.Immigration lawyers say applicants must collect documents such as tax returns, rental agreements, mortgage records, utility bills, bank statements, educational and vocational credentials, children’s school records and letters of support from employers or community organizations to prove their ties to the United States and strengthen their case for adjustment of status. This information can also be useful if they need to provide additional information after requesting evidence.