When U.S. Citizenship and Immigration Services issued a May memo emphasizing that adjustment of status is a matter of agency discretion, immigration attorneys began preparing for a bumpy path for their clients.
Alarmingly for some employers sponsoring foreign workers, the memo noted that applicants may be required to leave the United States to complete the green card process through consular processing in their home countries.
But nearly three months later, that feared shift has not materialized in the business immigration practice of Denver attorney Sari Long, a partner with Faegre Drinker, or of her colleagues. What the memo did change is how Long and other immigration attorneys think about risk in immigration cases.
“It’s been, ‘Wait and see and be prepared,’” said Long, a business immigration attorney. “Like so many things that we’ve had to navigate in the past year and a half.”
Routine Cases Keep Moving
The May 21 policy memorandum, PM-602-0199, underscored that adjustment of status under Section 245 of the Immigration and Nationality Act is discretionary and that USCIS officers should consider the totality of circumstances when deciding whether an applicant merits a favorable exercise of discretion.
While the memo did not change immigration law, its language prompted attorneys to consider its implications for people who had spent years pursuing employment-based permanent residency while legally living and working in the United States.
Initially, Long’s firm took a proactive approach. For adjustment-of-status applications filed in the weeks following the memo, attorneys began including additional statements and arguments highlighting applicants’ positive factors and explaining why USCIS should exercise its discretion in their favor.
Yet as “cases have kept moving,” attorneys are “just filing normally,” Long said. Her firm has seen little change in how adjustment-of-status applications are adjudicated, and the additional information attorneys provided did not appear to affect whether applications were receipted, whether applicants were interviewed or whether cases were approved.
There were early signs, however, that officers were paying attention to the memo’s language.
During adjustment-of-status interviews shortly after the memo was released, officers asked questions about violations of immigration law, fraud and good moral character, in what appeared to track with the memo’s emphasis on discretion.
Long said those questions have mostly abated. Her firm has also not had a client directed to complete the green card process through a U.S. consulate.
Where the Memo Matters
The absence of a dramatic shift in routine cases does not mean the memo has been irrelevant, as attorneys are more consciously considering what could happen if USCIS chooses to exercise that discretion against an applicant.
These days, instead of including additional information from the start, Long and her colleagues wait to see if an officer issues a request for evidence asking why discretion should be exercised in a particular case. Then, she said, “we can respond with evidence” about an applicant’s good moral character, contributions to an employer and the economy or other factors supporting permanent residency.
For applicants with complications in their immigration history — a misdemeanor, a past visa overstay or another issue that may not ordinarily prevent adjustment — the discretionary analysis remains part of the conversation.
Similarly, the possibility of consular processing would have been less likely to feature prominently in Long’s guidance to certain clients before the memo. Now it is an outcome attorneys must consider, with the appropriate strategy in response to any concerns depending on the individual’s circumstances, she said.
Immigration Advice Becomes Risk Management
Immigration-related questions that once might have been relatively routine — whether a worker should travel internationally, obtain a visa stamp or change jobs — also require a more individualized assessment of what could go wrong.
“In previous years, this would have been completely normal and pretty risk-free,” she said. “Now everything bears some risk, and you need to know what that looks like.”
For employers, that means preparing for uncertainty when there is no obvious problem with a case.
“It’s all about expectation setting,” Long said. She tells corporate clients to expect cases to take longer and cost more and to anticipate problems even in a straightforward case.
A Pattern of Scrutiny
Long does not view the USCIS memo in isolation.
She said immigration attorneys are seeing more scrutiny of applicants’ backgrounds and more connections between immigration adjudications and law enforcement information. Her firm has received requests for criminal records related to conduct from years earlier in situations where that information had not previously been requested.
Increased scrutiny makes the discretion language in the May memo more consequential, even if routine adjustment cases continue to be approved. Long described the cumulative effect as “death by a thousand cuts.”
The result, she said, is an immigration system that feels increasingly difficult to navigate for everyone from highly skilled workers to employers sponsoring them. She added, “It has not become impossible, but it does require skilled and experienced immigration counsel to navigate what changes every day.”