Is USCIS making it harder to get a green card inside the United States?
USCIS has issued a new memorandum on the review of applications for adjustment of status inside the United States - this is the process where a person files Form I-485 and asks for permanent resident status without leaving the country.
The main idea of the document: adjustment of status is not considered an automatic right.
USCIS emphasizes that this is a matter of agency discretion, and a favorable decision should be made only after evaluating all circumstances of the specific case.
Simply put, formal eligibility alone may now be insufficient. Even if a person qualifies under a category, the officer must separately evaluate whether the applicant deserves a favorable decision.
USCIS is trying to return the focus to a stricter approach: if a person came to the United States temporarily - for example, as a student, visitor, or another temporary nonimmigrant - the mere fact of being in the United States should not automatically turn adjustment of status into the regular path to a green card.
USCIS spokesperson Zach Kahler stated the position even more strongly: according to him, a person who is in the United States temporarily and wants to obtain a green card should return to their country and apply from there, except in extraordinary circumstances.
Important: this does not mean that most I-485 applications will now automatically be denied and only a few will be approved.
It means that USCIS discretion and the officer’s evaluation become especially important. Even if a person formally meets the legal requirements, the officer must separately decide whether there are grounds for a favorable decision based on all circumstances of the case.
What factors may matter?
Negative factors:
- failure to comply with the conditions of status in the United States;
- violations of immigration laws;
- unauthorized employment;
- long-term stay after status expired;
- fraud or providing false information;
- crimes.
Positive factors:
- good moral character;
- family ties;
- work and taxes;
- length of residence in the United States.
When issuing a denial, the officer must explain in the notice the negative and positive factors that were considered and explain why the negative circumstances outweighed the positive ones.
What this means in practice
Filing Form I-485 should now be viewed as more than just a technical process. The important question is not only “does the person fit the category,” but also the broader question: are there factors in the person’s history that could cause USCIS to deny the case as a matter of discretion.
Those who have had status violations, unauthorized employment, long periods without status, administrative or criminal incidents, as well as any questionable information in their immigration history, should be especially careful.
Does this apply to asylum seekers?
The memorandum does not say anything about asylum seekers as a separate group. The document does not change the rules for applying for asylum and does not concern Form I-589 itself.
The document concerns applications for a green card through Form I-485, and the main focus is on people who were in the United States as temporary nonimmigrants or received temporary permission to enter.
If denied, will a person have to leave the country to get a green card?
No, not automatically. USCIS states that, in a typical situation, a person with a temporary nonimmigrant visa who wants to obtain permanent status should go through the process at a consulate outside the United States.
But this does not mean that the rules for filing I-485 inside the United States have been canceled. The requirements for adjustment of status inside the United States were not changed by this memorandum.
It is important to emphasize again: this is not a new law. The laws and rules for filing I-485 were not changed by this memorandum. These are internal instructions for USCIS officers on how to apply already existing rules.
USCIS could already deny an application before if there were legal grounds or if negative factors outweighed positive ones. The new memorandum simply makes this approach more explicit for officers.
Sources: USCIS Policy Memorandum PM-602-0199, USCIS Policy Memoranda, USCIS Policy Manual - Discretion in Adjustment of Status, USCIS - Adjustment of Status, Daily Caller - USCIS spokesperson’s comment.
Disclaimer: The information provided here is for general informational purposes only and does not constitute legal advice. Translations are provided for convenience and may contain errors or omissions. For guidance on your specific situation, always consult official sources or a qualified attorney.
