US Citizenship and Immigration Services (USCIS) issued a new policy memo on Friday, reiterating that foreign nationals seeking adjustment of status must complete the process through consular processing outside the US through the State Department, in accordance with existing immigration laws and court decisions. As far as Indian applicants are concerned, they will have to apply for “change of status” to get a green card after leaving the US and going to India.
Officials have been instructed to consider all the relevant factors and information in each case separately, so that it can be decided whether this special type of relief should be given to a foreign national or not. USCIS spokesman Zach Kahler said, “We are returning to the original intent of the law, which was to ensure that foreign nationals follow our country’s immigration system properly. Starting now, any foreign national who has been in the United States for a short period of time and wants a green card will have to return to their home country to apply. Although they are exempted in certain circumstances.
Why USCIS issued a new memo
Kahler added, “This policy allows our immigration system to function as intended, rather than encourage loopholes in the laws. When foreign nationals apply from their home countries, it reduces the need to search and expel those who seek cover and stay in the United States illegally when they are denied residency.”
“Non-immigrants, such as students, temporary workers, or people on tourist visas, come to the United States for a short period of time and for a specific purpose,” he said.
What is the impact on Indian H1B professionals?
Barring certain circumstances, Indian applicants must also leave the US and apply for a “change of status” to obtain a green card in India. Immigration lawyer Nicole Gurnara told website HT, “This memo does not change the law, but it does change the attitude of officials. Applying for a green card while living in the US has technically always been at the discretion of officials, but for many years this discretion has not been used much.”
Gurnara says this memo indicates that rejection of applications based on the discretion of officials will probably happen more frequently now. They say that under the 2022 Supreme Court decision in Patel v. Garland, such rejections were also beyond the scope of most federal court review. The most important part of the memo was a footnote stating that simply maintaining valid H-1B or L-1 status during the green card process will not, in itself, be enough to get a decision in your favor.
The path of struggle for green card increased
According to Gurnara, H-1B workers traditionally assumed that if they maintained their legal status, paid taxes, and met all eligibility requirements, their I-485 applications would be easily approved. But, this memo now indicates that applicants may have to do more than just qualify for a green card. They will also have to show positive things and personal qualities to strengthen their case.
He says that students with F-1 visas may face more difficulties than those with H-1B, because F-1 is not a ‘dual intent’ visa. When students applied for their F-1 visas, they probably told a consular officer that they would return to their home country after completing their studies. “This memo empowers officials to pay more attention to how well those same students live up to their earlier statements when they apply for green cards.”
More dependence on the discretion of officials
He said, “For applicants who are choosing between changing their status while remaining in the US and going to India to take a consular interview, this decision has become more complicated. Both paths have some risks. But applying while living in the US, which used to be the easiest and preferred option for most people, has now become more difficult and dependent on the discretion of the authorities.”
“For Indian families who have spent 10 or 15 years through the long wait for an EB-2 or EB-3 visa, this memo also has a silver lining. The memo’s emphasis on ‘positives,’ that is, the positive relationships an applicant has built while living in the United States, works in their favor. When applying for a green card, you should highlight your hard work and accomplishments. Your family relationships, tax history, involvement in society, career “Detailed information should be given about everyone’s progress, and time spent in America, so that it can be easier to get their application approved.”
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