TLDR: On February 18, 2026, USCIS and ICE issued a new memorandum dramatically changing how the government handles refugees who have not yet adjusted to Lawful Permanent Resident (LPR) status. Under this new policy, refugees who have lived in the U.S. for at least one year without obtaining a green card can now be arrested and held in detention for an indefinite period while authorities re-vet them. This rescinds a 2010 policy that limited such detention to 48 hours. Rosanna Berardi of Berardi Immigration Law calls this shift alarming, arguing that it subjects people who already passed the most rigorous vetting process in the U.S. immigration system to mandatory re-detention without justification.
Understanding the New USCIS and ICE Refugee Detention Memorandum
On February 18, 2026, the U.S. Department of Homeland Security issued a joint memorandum to USCIS and ICE titled “Detention of Refugees Who Have Failed to Adjust to Lawful Permanent Resident Status.” This policy document, filed in connection with the ongoing federal case U.H.A. v. Bondi in the District of Minnesota, fundamentally changes the enforcement approach toward refugees who are still in the process of, or have not yet started, adjusting their immigration status.
What the Law Actually Says: INA § 209(a)(1)
The legal hook for this new policy is a long-standing provision of the Immigration and Nationality Act: INA § 209(a)(1), 8 U.S.C. § 1159(a)(1). Under this statute, refugees who have been physically present in the United States for at least one year are required to apply to adjust their status to Lawful Permanent Resident (LPR), commonly known as obtaining a green card. The adjustment process involves a mandatory inspection and examination by DHS to determine admissibility.
The statute states that refugees who have not adjusted shall “return or be returned” to DHS custody for this inspection. That language has been in place since 1980, but the way the government interprets it has just changed dramatically.
What’s New: A Radical Departure From Past Practice
The Old Policy (2010 Chaparro Memorandum)
Before this new memo, the governing guidance came from a 2010 directive that took a measured approach. Under that framework, failure to adjust status alone was not treated as a basis for detention or removal. If a refugee was arrested, DHS was required to either release the individual or initiate removal proceedings within 48 hours, and if no ground of inadmissibility applied, the person had to be promptly released.
The New Policy (February 18, 2026)
The new memo throws out that framework entirely. Now:
- Refugees who have not adjusted to LPR status after one year must return to DHS custody for inspection and examination.
- If a refugee does not voluntarily return, DHS will locate, arrest, and detain them.
- Detention is not limited to 48 hours, it can last for however long DHS determines is necessary to complete the inspection process.
- After inspection, the refugee is either admitted as an LPR or placed in immigration (removal) proceedings.
In short, mandatory detention is now the default, not the exception.
Why Rosanna Berardi Is Alarmed
“I reviewed the new USCIS Detention of Refugee Memo dated February 18, 2026, and am alarmed at the new interpretation of a long-standing statute,” says Rosanna Berardi, Managing Partner of Berardi Immigration Law.
Her concern comes down to a fundamental disconnect: refugees are already subject to some of the most thorough vetting of any immigrant population entering the United States. The State Department’s refugee screening process, conducted in collaboration with DHS, the FBI, the Department of Defense, and the U.S. intelligence community, is widely regarded as the “gold standard” of immigration vetting.
The new memo argues that this initial screening was insufficient and that a second, mandatory round of vetting by DHS is necessary. Rosanna finds this logic difficult to follow. “It is illogical to take individuals who have already met the highest vetting standards and mandate their detention just to verify that same ‘gold standard,'” she notes.
The government’s rationale cites a review of roughly 31,000 refugees admitted from Ecuador, El Salvador, Guatemala, Honduras, and Venezuela between 2021 and 2024, claiming that significant percentages had unresolved public safety concerns or could not have their identities fully verified. While these statistics may sound alarming on their face, they are being used to justify a sweeping policy change that affects all refugees who have not adjusted status, including those who entered legally, followed every rule, and simply haven’t completed the adjustment paperwork.
The Practical Impact: Who Is Affected?
If you are a refugee currently living in the United States and you have not yet applied for or received your green card, this policy puts you at risk of arrest and detention. The memo makes clear that DHS views the one-year mark as a mandatory re-vetting trigger, and that failure to voluntarily submit to the inspection process authorizes enforcement action.
It’s also worth noting that the memo explicitly states detention under this authority is not indefinite, it is meant to last for the “reasonable length of time” needed to complete the inspection. However, what constitutes “reasonable” is undefined, and with the 48-hour limitation now gone, there is no firm ceiling on how long someone could be held.
This matters enormously for people who may have believed, based on years of prior practice, that not adjusting status carried limited consequences. The memo acknowledges that refugees may have relied on prior lax enforcement, but argues those reliance interests are outweighed by public policy concerns.
What Refugees Should Do Right Now
If you entered the United States as a refugee and have not yet applied for LPR status, the most important step you can take is to consult with an experienced immigration attorney as soon as possible. The adjustment of status process requires submitting an application and biometrics to USCIS, and voluntarily doing so may help demonstrate compliance with INA § 209(a)(1), potentially avoiding enforcement action.
Berardi Immigration Law is closely monitoring developments in this area, including ongoing litigation in U.H.A. v. Bondi, which could affect how (or whether) this policy is enforced.
What This Means for Refugees in the United States
The February 18, 2026 USCIS and ICE memorandum represents one of the most significant shifts in refugee policy in recent memory. By reinterpreting a decades-old statute to authorize open-ended mandatory detention of refugees who haven’t yet adjusted status, the administration has upended the expectations of thousands of people who entered the country legally and followed the rules. This is a serious development that warrants close attention and swift legal action for those who may be affected.
If you have questions about how this policy may affect you or a family member, contact Berardi Immigration Law today to schedule a consultation.
Frequently Asked Questions
Q: I’m a refugee and I haven’t gotten my green card yet. Can I be detained?
A: Under this new memo, yes, you could be. USCIS and ICE now treat the one-year mark as a mandatory re-vetting trigger, and refugees who have not voluntarily submitted to the inspection process can be arrested and detained. The best step you can take right now is to speak with an immigration attorney about beginning your adjustment of status application.
Q: Does this mean refugees can be deported just for not having a green card?
A: Not automatically. The memo’s stated purpose is to bring refugees back into the inspection process, after which they would either be granted LPR status or placed in removal proceedings. However, if DHS finds grounds of inadmissibility during that inspection, including potential fraud in the original refugee application, removal proceedings could follow.
Q: How long can DHS detain a refugee under this new policy?
A: The memo says detention can last for the “reasonable length of time” needed to complete the inspection and examination process. Critically, the prior 48-hour limit has been eliminated, meaning there is no firm legal ceiling on detention duration under this policy. Litigation challenging this interpretation is currently ongoing.
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