Livestream: "The New AOS Discretion Memo: Your Questions Answered"

Transcript:

Hello, hello.

Good afternoon, everyone.

Rosanna Berardi here from Buffalo, New York. It’s a beautiful day.

Welcome to the Berardi Immigration Law live stream on how the government is now processing green cards differently.

Now, you didn’t wake up from a dream. If you’re confused, you have every right to be. Congress didn’t change the law. Nope. Not at all.

What happened?

Friday, the Friday before Memorial Day weekend, USCIS dropped a bomb of a memo that changes everything. Changes how people in the United States and those wanting to come here get their green cards.

Welcome to Berardi Immigration Law. I’m Rosanna Berardi. You’ve probably seen me on LinkedIn. We do lots and lots of education and social media to keep people in the know.

What makes me unique to talk about this very issue is that I spent five years at the beginning of my career as an Immigration and Naturalization Service employee. That’s right. I was with the feds. I was an immigration inspector at the Peace Bridge, Lewiston-Queenson Bridge, and Rainbow Bridge here in the Buffalo, New York jurisdiction. I had a badge. I had a gun. I could arrest people. It was wild.

I did that at the beginning of my career, college law school, and also then went to the INS New York City office where I prosecuted illegal foreign nationals in immigration court every day. Fun stuff. Beginning of my career.

I’ve done nothing but immigration. Nothing, nothing, nothing. Since June first of nineteen ninety three. Damn, I’m old. Thirty three years. I’ve done nothing. I don’t dabble in personal injury. I don’t dabble in matrimonial. I am an immigration lawyer and I am so proud of the ability to do things like this to help you understand what the hell is going on.

And let’s just start at the beginning. Nothing that’s going on, nothing that you hear on the media is the result of Congress. Shocking.

Let’s go back to Schoolhouse Rock. If you’re old enough to know what that was, Schoolhouse Rock taught us that there are three branches of government. There is the executive branch, that’s where the president sits. There’s the legislative branch, that’s Congress. They make the laws. And then we have the judicial branch. They are the ones that make sure the laws are being enforced correctly. That’s the Supreme Court, that’s judges, that’s people, judges and courts around the United States, three separate branches.

Notice executive branch doesn’t make the law. Executive branch, no, no, stop. That’s not your job.

What’s happened in the last, I’d say, almost twenty years is Congress, our legislative branch, has done nothing. They have not fundamentally changed the Immigration and Nationality Act in thirty years. Nineteen ninety six. When I was in law school and was a young’un is when they changed it last.

Now, what are we hearing in the news? What happened on Friday?

Well, oh dear, the executive branch through the United States Citizenship and Immigration Services, which is an agency that’s responsible for implementing and enforcing the US immigration law, wrote a memo on a Friday afternoon before Memorial Day. Now, this was not happenstance. This is not happenstance.

I’m going to tell you what this memo said.

The law, the underlying immigration law, The Immigration and Nationality Act section, two-forty-five, two-forty-five, two-forty-five allows people to adjust their status. What does that mean? Well, it’s pretty straightforward. It means what it sounds like.

If you’re in the United States lawfully, you came in as a student or as a worker or even as a visitor and you fell in love and wanted to get married and get a green card. Or if you’re a worker who works at a hospital, you’re a physician, you’re a researcher, you came in temporarily. The hospital is like, wow, your research is amazing. We want you to stay in the U.S. forever.

All of these individuals under Section two forty five could apply for adjustment of status. That means they take their temporary status, which you probably hear these terms all the time, an F-one, an H-one, a J-one, a T-N, temporary categories. and adjust them to permanent residency.

Permanent residency is the ability to remain in the US permanently. It’s a green card. Lawful permanent resident, green card holder, LPR, you’ve probably heard these terms. Green card holder, that’s the one that we hear the most.

What can that person do?

That person can permanently reside in the United States, get all the benefits of living in the US, but for voting. If the green card holder wants to vote in our really illustrious presidential system, he or she can then apply for citizenship.

So we’ve got temporary, we’ve got permanent, and we’ve got citizenship.

We’re talking about the middle one, and I will not put up my middle finger, although I probably should. We’re gonna talk about the middle one, lawful permanent residency.

And section two, forty-five, still on the books, untouched. is the legal foundation that allows people in the United States.

We have hundreds of thousands of people every year adjusting status. Why? Because it’s easy. It’s efficient. It’s convenient. It’s less expensive. It’s what Congress intended.

What did USCIS do Friday?

They dropped a memo that said, adjustment of status is not routine. It is extraordinary. Extraordinary.

I almost fell off my chair when I read this because this is not what Congress intended.

Congress specifically created section two forty five to make it easier for people already in the United States to become permanent residents without leaving the country.

But now USCIS is saying, not so fast. We’re going to exercise discretion in a different way.

Discretion. That’s the magic word.

Adjustment of status has always involved discretion. But historically, if you were eligible and there were no major issues, you got approved. This memo changes the lens.

Now officers are being told that adjustment of status is a discretionary benefit and should only be granted when warranted.

What does that mean?

Honestly? We don’t fully know yet because this memo is brand new. But what we do know is that officers are now being instructed to scrutinize applications differently.

They are being told to look for negative factors.

What are negative factors?

Did you ever overstay? Did you work without authorization? Did you have immigration violations? Did you fail to maintain status? Did you have any criminal issues? Even minor ones?

And here’s where people are getting nervous. Because many people applying for adjustment of status have some kind of complexity in their background.

Maybe they overstayed by a few weeks years ago. Maybe they worked without authorization while waiting for a work permit. Maybe they entered as a visitor and later decided to stay.

Historically, many of these things could be forgiven under the law depending on the category. But now?

This memo is creating fear that officers may deny cases even where the law technically allows approval.

That’s why we’re doing this livestream.

We’re here to answer your questions, explain what we know, explain what we don’t know, and help you understand how this may impact you, your family, your employees, or your future.

Let me be very clear.

This memo did not change the law.

Congress did not repeal adjustment of status.

Green cards are still available.

People can still apply.

But the way officers are evaluating discretion appears to be changing.

And that matters.

Because discretion can be subjective.

One officer may view your case one way. Another officer may see it differently.

That’s why documentation matters. That’s why legal strategy matters. That’s why having a well-prepared case matters more than ever.

Now, I know people are panicking.

I know employers are panicking.

I know families are panicking.

Take a breath.

Do not assume that your case is doomed.

Do not assume that USCIS is going to deny every adjustment application.

That’s not what this memo says.

But what it does mean is that people need to be more careful, more strategic, and more proactive.

If you have a pending case, now is the time to organize your records.

Get copies of everything.

Approval notices.

I ninety fours.

Passports.

Prior immigration filings.

Any evidence showing your contributions, your positive equities, your ties to the United States.

If you’re an employer sponsoring someone, make sure your documentation is strong.

Why does this employee matter?

What are their contributions?

What role do they play in your organization?

If you’re a family applicant, make sure you can demonstrate the strength of your relationships, your community ties, your good moral character.

Because if USCIS is shifting toward a more discretionary analysis, positive equities are going to matter more.

Now, let’s talk about the three groups we think are most at risk under this memo.

Number one, people who fell out of status.

If you overstayed, if you worked without authorization, if you had gaps in status, these cases may face increased scrutiny.

Number two, people with prior immigration violations.

Maybe you had a prior denial. Maybe you were stopped at the border. Maybe there were allegations of misrepresentation. These cases may become more difficult.

Number three, individuals with criminal issues, even relatively minor ones.

Again, discretion means officers can weigh factors differently.

Now, does that mean every one of these people will be denied?

Absolutely not.

But it does mean strategy matters more than ever.

And here’s another important point.

Adjustment of status interviews may become more aggressive.

We are already hearing reports from the field that officers are asking new questions.

Why didn’t you consular process?

Why did you stay in the United States?

Do you still have ties abroad?

What factors justify granting adjustment in your case?

These are not questions we traditionally saw asked in this way.

So again, preparation matters.

If you have an interview coming up, talk to your lawyer.

Prepare thoroughly.

Understand your timeline.

Understand your immigration history.

Be truthful.

Be calm.

And do not go in unprepared.

Now, let’s address another issue.

People are asking, can USCIS really do this?

Can they change how adjustment cases are reviewed without Congress?

Well, agencies do have discretion in how they interpret and implement laws.

That’s where administrative law comes in.

But if this memo results in widespread denials that appear inconsistent with the statute, you can bet there will be litigation.

You can bet lawyers across the country are watching this very carefully.

And courts may eventually weigh in.

Because again, Congress intended adjustment of status to be accessible.

This wasn’t supposed to be some rare extraordinary remedy.

It was designed to help people who are already here lawfully transition to permanent residence.

That’s the history.

That’s the intent.

That’s the framework we’ve operated under for decades.

So yes, this is a big deal.

Yes, it’s concerning.

But no, it is not the end of the world.

And no, people should not panic.

What people should do is get informed.

Stay informed.

And work with experienced counsel.

Because immigration law right now is changing rapidly.

And unfortunately, we’re seeing more and more policy shifts coming from agencies instead of Congress.

Now, let me say something else.

America needs immigrants.

America needs foreign workers.

America needs physicians, researchers, engineers, business owners, innovators, students.

This country does not function without immigration.

And lawful immigration is not the problem.

People who follow the rules, who pay filing fees, who go through the process, who contribute to the economy, who create jobs, who conduct research, who treat patients, these are not the villains.

These are the people helping America remain competitive.

So when policy changes create fear among lawful immigrants, that’s a problem.

Because uncertainty impacts businesses.

It impacts hospitals.

It impacts universities.

It impacts families.

And frankly, it impacts the United States economy.

Now, we’re going to continue monitoring this memo very closely.

We’re talking to attorneys around the country.

We’re watching what officers are doing.

We’re reviewing interview notices.

We’re reviewing RFEs.

We’re reviewing approvals and denials.

And as we get more information, we will continue educating the public.

Because that’s what we do.

We believe people deserve clear information.

Not panic.

Not rumors.

Not misinformation on TikTok.

Actual legal analysis.

Now, if you’re watching this and you’re worried about your case, here’s my advice.

Do not hide.

Do not ignore notices.

Do not assume everything will magically work out.

But also, do not assume the sky is falling.

Immigration law has always been complicated.

And every administration changes policy priorities.

What matters now is understanding how to navigate the new environment.

So organize your documents.

Talk to counsel.

Prepare strategically.

And stay informed.

Because knowledge is power.

And fear without information helps no one.

Thank you all for joining us today.

We know this is a stressful time.

We know this memo created enormous confusion.

But our team at Berardi Immigration Law is committed to helping people understand what this means and what comes next.

We’ll continue putting out updates.

We’ll continue doing livestreams.

We’ll continue educating employers, families, and individuals.

Because that’s our job.

And again, please remember.

Adjustment of status still exists.

The law has not changed.

But the way USCIS is applying discretion appears to be shifting.

And that’s why preparation matters now more than ever.

Thank you, everybody.

Stay calm.

Stay informed.

And we’ll continue working through this together.