New Adjustment of Status Policy Mandating a High Bar for a Positive Exercise

Practice Pointer: New Adjustment of Status Policy Mandating a High Bar for a Positive Exercise  of Discretion1 

The new policy announced by USCIS on May 22 in Policy Memorandum (PM) PM-620-1099 characterizing adjustment of status as “extraordinary relief that permits applicants to dispense with  the ordinary consular visa process” is a significant departure from existing practice. While this  benefit has always been discretionary, since Congress enacted INA section 245(a) in 1952, neither  Congress nor legacy INS nor DHS has taken the position that, absent extraordinary circumstances,  foreign nationals seeking permanent residence should generally be required to depart the United  States to obtain that benefit. Since that time, Congress and the courts have in fact expanded the  scenarios in which adjustment of status is possible. 

The PM claims that this position is consistent with Congressional intent to limit adjustment of status  within the United States given that the majority of nonimmigrant visa categories carry a strict  nonimmigrant intent or intent to depart requirement.2 While dual intent categories are acknowledged  in the memo, there is no indication.3 

In accordance with the agency’s new position, USCIS is directing its officers to consider all relevant  factors and information in the totality of the circumstances to determine whether a favorable  exercise of discretion is warranted or whether the applicant ought to be required to follow the  “regular” process of applying for an immigrant visa at a consular post abroad. It is important to note  that the PM does not suggest that officers will begin exercising discretion to categorically deny all I 485 applications filed pursuant to INA 245. It does note future policy guidance may be issued to aid  adjudicators in identifying applications for certain categories or discretion populations that may or  may not warrant a positive exercise of discretion. 

To Whom does the memo apply? 

According to the PM, it applies to Adjustment of Status applications filed in accordance with INA 245  and who can seek an immigrant visa abroad. Therefore, it excludes those categories that would  adjust status under other provisions of the law or that are considered non-discretionary.  

While the PM does not list all of the categories that are excluded from the PM, USCIS notes the  following in Volume 7, Chapter 10 of its Policy Manual3:  

1 Thank you to Lance Conklin, Lisa York, Jessica Marks, and Jason Mills for drafting this pointer.  2 USCIS also cites a series of BIA, Supreme Court, and circuit court cases to reinforce its interpretation of  Congressional intent, but these cases are of limited relevance as many of them did not involve adjustment of  status. In addition, the two BIA cases that are cited multiple times, are distinguishable in their facts in that they  involve individuals that have neglective attributes that must be overcome as well as their application of the law.  These elements of the memo, along with the fact that it fails to address the many amendments Congress has  made to the INA to repeatedly incorporate the adjustment of status process into the regulatory framework,  make this policy change ripe for litigation. 

3 FN 20 of the PM, notes “maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on  its own, to warrant a favorable exercise of discretion.” 

Totality of the Circumstances Analysis  

  It has been reported that officers are issuing RFEs and asking questions during interviews about why  applicants elected not to apply for an immigrant visa abroad. Officers are specifically instructed to  weigh the following as adverse factors:  

• Violations of immigration law or conditions of a prior status  
• Fraud or false testimony in dealings with USCIS or any government agency  • Conduct inconsistent with the purpose of the nonimmigrant or parole status  • Failure to depart when the purpose of admission or parole was accomplished  • Applying for AOS in a category where consular processing is available  
• Intent to circumvent the ordinary consular process (preconceived intent)    

Positive factors include:  

• Family ties in the United States  
• Applicant’s moral character  
• National interest considerations, including applications that present an economic benefit    

Evidence demonstrating positive factors may include, but is not limited to the following:    

• Evidence of deep U.S. family ties (U.S. citizen or LPR spouse/children), particularly where  separation would cause hardship  
• Long-term lawful presence and community integration (employment history, tax records,  civic involvement, community letters)  
• Evidence of good moral character (no criminal history, charitable contributions, professional  accomplishments)  
• Demonstrated benefit to the United States (employer sponsorship letters, specialized skills,  economic contributions)  

  It is important to note that the memo explicitly states that the mere absence of adverse factors does  not establish sufficient equities. To overcome adverse factors (such as overstay or status violation),  applicants must show “unusual or even outstanding equities.”  

  Client Conversations and Strategies for Pending & In-preparation I-485 cases    

• Advise corporate clients to identify employees with pending I-485 applications who are  relying solely on an AOS-based EAD to work and have not maintained nonimmigrant status.  Any such employee whose application was filed based on 245(k) or who has an arrest or  criminal history would be at higher risk of a discretionary denial.  
• Remind clients that if an adjustment of status application is denied and  underlying nonimmigrant status is not being maintained, removal proceedings may  be initiated. Clients must understand that they are taking this risk if they remain in the United  States in a period of authorized stay versus a nonimmigrant status.  
• Discuss whether consular processing is a viable alternative with clients, while reminding  them that adjustment of status in the United States offers more benefits (e.g., EAD) and  protections than applying from abroad due to the consular doctrine of non-reviewability.  
• For clients who have yet to file their I-485, offer the option of preparing a package  documenting positive discretionary factors to include with the application.  
• Prepare clients for interview questions relating to the new policy. These may include:  o Why did you apply for AOS instead of consular processing?  

o Are there any factors that would prevent you from consular processing?  o Why did you remain in the United States after your nonimmigrant status/authorized period of  stay expired?  

o What family or other ties do you have in your home country?  

  Other Legal Considerations  

• Consider filing I-130 and I-140 petitions indicating “immigrant visa processing” even if the  beneficiaries later decide to file for AOS in the United States to try and avoid having to file an  I-824. Current policy is for USCIS to automatically transfer an I-130 or I-140 from the NVC to  USCIS when an I-485 application is filed (without the need to file an I-824). However, if  “adjustment of status” is indicated on the I-130 or I-140 petition and the beneficiaries then  apply for consular processing, an I-824 must be filed to transfer the petition from USCIS to  the NVC for immigrant visa processing. If USCIS denies the I-485 application, an I-824  petition will be necessary to transfer the underlying I-130 or I-140 petition back to the NVC for  immigrant visa processing. if you mark immigrant visa processing on the petition and then  decided to adjust in the U.S., be sure to contact the NVC regularly (at least once a year) to  ensure that the petition is not revoked.”  
• Unlawful Presence Bars:  

o Review when ULP accrues and when it is tolled (ULP is tolled while an I-485 application  is pending but the unauthorized employment clock does not toll).4  

o 3 yr/10yr and Permanent bars – will an I-601 or I-212 waiver be needed if the foreign  national decides to apply at the Consular Office abroad or if the I-485 application is  denied and the FN wants to leave and apply at the Consular Office abroad (assuming an  NTA is not filed with the court)? If so, start the process of gathering the  documentation/evidence for the waiver application now.  

o I-601A eligibility: Must have I-130 approved, can’t be in removal proceedings, and the  foreign national must be in the U.S. to be eligible.  

o If an individual who has accrued over 180 days of unlawful presence but less than a year  of unlawful presence is granted voluntary departure in removal proceedings, then the 3- year bar does not apply.  

o Concerns about USCIS changing its policy regarding what constitutes a “departure” for  purposes of triggering the 3 yr or 10 yr ULP presence bars. Matter  of Arrabally and Yerrabally, 25 I&N Dec. 771 (BIA 2012). Remember that the Department  of State (DOS) interpretation is that an individual must leave and return to the United  States, and be readmitted pursuant to Advance Parole for a brief trip outside the United  States not to be considered a ”departure” that could trigger a 3 yr or 10 yr bar.  

o Anticipated elimination of D/S for F, J, and I visa holders. A final rule eliminating duration  of status for these nonimmigrant categories is expected to publish soon and will take  effect 60 days after publication. After the effective date, they will start accruing unlawful  presence if they overstay their program end dates (not to exceed a period of 4 years). They  will also have to file I-539 applications to extend, change programs, apply for OPT or STEM  OPT, and will be subject to “periods of authorized stay” while these applications are  pending if their program dates have ended.  

• Child Status Protection Act (CSPA) considerations: USCIS policy guidance says that if a  child’s CSPA age is frozen under 21 years of age that the CSPA age is frozen until final adjudication of the I-485 application. If the I-485 application is denied (and not renewed in  removal proceedings), then the child will likely lose CSPA protection and may age out. These  children would no longer be eligible for derivative status on their parent’s NIVs and thus, they  may or may not have any means of maintaining their status in the United States if they age out. Attorneys should argue that this is a significant discretionary factor that USCIS should  consider when weighing the equities of the case, especially since Congress enacted the  CSPA in 2002 specifically to prevent this from happening.  
• Nonimmigrant intent issues for those who filed I-485 applications while in B-1/B-2, F-1, E-3,  O-1, R-1, TN status etc. and who have not been able to maintain those statuses while their I 485 applications are pending. Going forward discuss risks of filing AOS while in these statues  and encourage folks to change to a dual intent nonimmigrant status such as H-1B if possible  before filing AOS or as soon as possible before adjudication of AOS.  
• Consider including a brief with your adjustment application citing applicable law or  distinguishing your client from the cases cited in the PM.  

o If filing for an immediate relative, consider citing Matter of Ibrahim (18 I&N Dec. 55 (BIA  1981)) and Matter of Cavazos (17 I&N Dec. 215, (BIA 1980))as they hold to the position  that when an Adjustment is based on an immediate relative petition and the only adverse  factor is preconceived intent, the adjustment should generally be granted.  

o For all adjustment applications, cite to Matter of Arai (13 I&N Dec. 494 (BIA 1970). It  involved a foreign national who overstayed his grant of voluntary departure and worked  without authorization and the court listed the favorable factors for adjustment that  includes family ties, hardship, length of residence in the U.S., etc. The court  even stated that an approved Labor Certification would be a positive factor that could  “benefit the country.”  

o The main BIA case cited in the PM to support the new policy actually does not seem to  support it in the manner they assert. In Matter of Blas (15 I&N Dec. 626 (BIA 1974; A.G.  1976)), the foreign national lied about his reasons for coming to the United States as well  as his employment. The case highlights a number of negative factors, including the fact that the individual came for the purpose of his adoptive parents filing an I-130 for him and  to abandon his wife and four children and divorce his wife in the United States It also  appears he intended to marry an LPR in the United States In the decision, the court  states that “The provisions of the Immigration and Nationality Act are supposed to favor  the reuniting of families. It would be unreasonable to ascribe to Congress the intention to  promote the breakup of aliens’ marriages abroad.” They also say that if he had been long  estranged from his wife and come to the United States and married a U.S. Citizen, they  would view it differently.  

o The other BIA case referenced multiple times (Matter of Mendez-Moralez (21 I&N Dec.  296 (BIA 1996)) is also not at all on point. The quote used in the PM, twice, is where the  court addresses discretion as it applies to a 212(h) waiver and the court makes a point to  distinguish between this analysis and one involving INA 245 as set forth in Matter of  Arai (13 I&N Dec. 494 (BIA 1970)).  

o Take note of the history and purpose of Adjustment of Status as detailed in the Policy  Manual (this may change). See Volume 7, Part A, Chapter 1 (Chapter 1 – Purpose and  Background | USCIS). In this section, it says the “Congress created the adjustment of  status provision was to enable certain aliens physically present in the United States to  become LPRs without incurring the expense and inconvenience of traveling abroad to  obtain an immigrant visa. Congress has added additional adjustment of status provisions  to:  

▪ Ensure national security and public safety;  

▪ Advance economic growth and a robust immigrant labor force;  

▪ Promote family unity; and  

▪ Accommodate humanitarian resettlement.  

▪ Review the Policy Manual for what is stated about discretion at Volume 7, Part A, Chapter 10 (Chapter 10 – Legal Analysis and Use of Discretion | USCIS) and Volume 1, Part E, Chapter 8 (Chapter 8 – Discretionary Analysis | USCIS)  

Considerations if the adjustment application is denied  

  It is important consider options if the Adjustment of Status application were to be  denied. The following aspects of your case that should be considered:  

• The case could be referred to an Immigration Judge where the client could renew their case  before the Immigration Judge. However, if your client last entered on parole and, thus, is  considered an arriving alien, USCIS reserves sole jurisdiction for the Adjustment of Arriving  Aliens which could complicate the case and process.  
• The denial cannot be appealed, so you would need to seek a Motion to Reopen or Motion to  Reconsider. You could get around the non-reviewability clause through an Administrative  Procedures Act (APA) Claim.  
• If the client will be subject to the unlawful presence bar, consider filing an I-601A waiver as  soon as possible since they currently take about two years. If the client is placed in  proceedings, you will need to seek administrative closure to be eligible for a 601A waiver.    

AILA continues to monitor developments and will update this practice resource accordingly.