Is Adjustment of Status Dead? Why USCIS's New Policy Memo May Face Major Legal Challenges

Transcript:

Hi everyone, I’m Gabriella Agostinelli with Berardi Immigration Law. And if you’ve been following immigration news over the last week, you’ve probably seen headlines about USCIS’s new adjustment of status policy memorandum and statements suggesting that green cards filed inside the United States will only be approved in extraordinary circumstances.

We have now received countless panicked calls and emails from worried clients, employers, and families asking the same question: Is adjustment of status dead?

The short answer is no.

Today I want to walk through what USCIS actually announced, what we know, what we don’t know, and why we are continuing to file adjustment of status applications, and perhaps most importantly, why many immigration lawyers believe this policy is vulnerable to legal challenge.

Now, let’s start with the most important point. The law has not changed. Congress has not passed a new law. The Immigration and Nationality Act has not been amended. The adjustment of status statute still exists exactly as it did before this memo was released.

This means family-based applicants, employment-based applicants, refugees, asylees, and many other individuals remain statutorily eligible to apply for permanent residence from inside the United States.

What changed is not the law. What changed is USCIS’s interpretation of how officers should exercise discretion when deciding these cases. And that distinction matters because when agencies change how they interpret law, courts can review those interpretations.

When Congress changes a law, that’s a very different situation.

So before anyone panics, it’s important to understand that this memo is not an act of Congress. It’s a policy document issued by USCIS.

And policy documents can be challenged.

Why are we still filing adjustment of status cases?

Well, let me address the question I am getting more than any other: Should I still file adjustment of status?

For most clients, my answer today is yes.

At our firm, we are continuing to prepare and file adjustment applications unless we conclude that the negative factors in a particular case significantly outweigh the positive factors.

Why?

Because adjustment of status remains authorized by statute, because many people still have strong cases, and because we do not believe USCIS simply can erase decades of congressional policy through a policy memorandum.

In fact, we’ve already seen approvals issued after the memo’s release. One example discussed during recent AILA meetings involved an employment-based applicant who had an expunged simple assault arrest and still received approval without an interview earlier this week.

That does not mean every case will be approved. But it does show that USCIS is not automatically denying every application.

The reality is that we are entering a period where attorneys need to be more strategic. We need to identify positive equities. We need to prepare clients carefully. We need to explain community involvement, employment history, tax compliance, family ties, educational achievements, and other favorable factors.

In other words, we need to build the strongest possible record.

And that is very different from saying that adjustment of status is over. It isn’t.

Now, the memo essentially argues that adjustment of status should be viewed as an extraordinary form of relief.

That’s a dramatic shift from how adjustment has traditionally operated.

Historically, adjustment of status has been viewed as a statutory benefit available to people who satisfy the requirements established by Congress.

Discretion existed, but discretion generally operated in a predictable way. If someone was eligible and did not have significant negative factors, approval was ordinarily expected.

Even USCIS’s own policy manual currently states that absent negative factors, discretion is ordinarily exercised favorably. Eligibility itself is considered a positive factor.

The new memo appears to move the goalposts.

Instead of asking whether someone qualifies for adjustment, officers are being encouraged to ask whether the applicant has demonstrated extraordinary reasons for receiving it.

That is a very different standard.

And that leads us directly into the legal issues.

Legal Defense Number One: The Memo Conflicts with Congressional Intent

This is probably the strongest argument.

Congress has spent decades expanding access to adjustment of status.

Think about the provisions Congress deliberately created:

• Section 245(c) protections for immediate relatives.
• Section 245(k) protections for many employment-based applicants.
• AC21 protections allowing certain H-1B workers to remain in the U.S. while waiting through immigrant visa backlogs.
• Parole-based adjustment pathways.
• Numerous exceptions for technical status violations.

Congress repeatedly expanded adjustment of status eligibility because it wanted qualified people to complete the process inside the United States.

The new memo appears to treat some of those same circumstances as negative discretionary factors, and that’s a major problem.

An agency cannot generally undermine congressional policy simply because it prefers a different outcome.

Legal Defense Number Two: The Memo May Be Contrary to Matter of Arai

One of the most important cases in this area is Matter of Arai, which has long stood for a simple proposition:

Adjustment of status is discretionary, but when someone is eligible and does not have significant adverse factors, adjustment should ordinarily be granted.

If negative factors exist, they are weighed against positive factors.

The decision did not create a presumption against adjustment. In fact, it suggested the opposite.

Many practitioners believe the new memo effectively flips Matter of Arai on its head by creating a presumption against approval unless extraordinary circumstances exist.

That is one reason why litigation is expected.

Legal Defense Number Three: Ultra Vires Agency Action

This is just a fancy legal phrase that means an agency exceeded its authority.

The memo repeatedly invokes the concept of extraordinary circumstances.

The problem is that Congress never imposed an extraordinary-circumstances requirement for ordinary adjustment applicants.

USCIS cannot simply invent new eligibility standards.

An agency can interpret a statute. It cannot rewrite one.

Many attorneys believe the memo crosses that line.

Legal Defense Number Four: Administrative Procedure Act Challenges

This is where we get into what lawyers call arbitrary-and-capricious review.

Federal agencies must explain major policy changes and provide rational justifications.

When an agency suddenly reverses decades of practice, courts often ask:

• What changed?
• What evidence supports this change?
• Did the agency consider reliance interests?
• Did it adequately explain its reasoning?

Those questions are likely to become central in future litigation.

Legal Defense Number Five: Procedural Due Process Challenges

Another major issue is fairness.

How will this memo apply to pending cases?

Will USCIS apply it retroactively?

Will applicants receive clear notice regarding what evidence is required?

Will officers apply it consistently?

What happens to people who filed under one understanding of the law only to have the rules effectively change midstream?

These questions raise significant due process concerns, and I suspect we will see these arguments raised in both individual and class-action litigation.

Now some of you legal eagles might be saying, “What about Patel v. Garland?”

Some people have pointed out that this case argued that courts cannot review adjustment decisions.

But this is not entirely accurate.

Patel primarily dealt with judicial review of individual factual and discretionary determinations.

Other cases, including McNary v. Haitian Refugee Center and Succar v. Ashcroft, recognize that courts may still review broader legal and systemic challenges to agency policies.

That distinction is critical.

The expected lawsuits are not simply going to argue that a particular applicant deserved approval.

The argument will be that USCIS adopted an unlawful policy in the first place.

That’s a very different type of case.

So the question becomes: What should applicants do right now?

First, do not panic.

Second, do not assume your case is dead.

Third, consult with qualified immigration counsel before making major decisions.

For many applicants, adjustment of status remains the best available option.

For others, consular processing may need to be evaluated as a backup strategy.

Every case is now becoming more fact-specific.

We are spending more time identifying favorable equities, documenting positive contributions, and preparing clients for potential scrutiny.

That does not mean people should stop filing.

It means people should file thoughtfully.

The biggest takeaway from today’s video is simple:

The law remains on our side.

Congress created adjustment of status.

Congress expanded adjustment of status.

Congress repeatedly reaffirmed adjustment of status.

A policy memo cannot simply erase decades of immigration law.

Will this create delays? Probably.

Will it create uncertainty? Yes.

Will there be litigation? Almost certainly.

But none of that means adjustment of status disappeared.

For now, we are continuing to file cases, continuing to advocate for our clients, and continuing to challenge interpretations that we believe are inconsistent with the law.

As always, every case is unique.

If you have questions about your specific situation, speak with qualified immigration counsel before making any decisions.

Thank you for watching, and I’ll continue to provide updates as we learn more.

Follow Berardi Immigration Law and stay tuned.