USCIS green card announcement spurs confusion. What to know

A recent U.S. Citizenship and Immigration Services policy announcement has spurred confusion among people seeking to obtain green cards during the second Trump administration.

A green card confers permanent residency to live and work in the United States and is granted to people who qualify through a range of categories, including work, family and refugee status. The process works by USCIS adjudicators approving someone's adjustment of status if he or she is already in the United States, or if people are applying through consular offices outside of the country.

On May 22, USCIS said it would grant adjustment of status to permanent residency "only in extraordinary circumstances." Instead, officials said people already in the United States would have to travel to their home countries and apply through consular offices.

However, immigration law experts say the policy change is unclear on who would be required to actually leave the United States, including possibly to countries where the Trump administration has placed restrictions on travel.

“This policy does create a lot of confusion,” Adriel Orozco, senior policy counsel at the American Immigration Council, an advocacy organization that promotes fairness in immigration policy, told USA TODAY’s “The Excerpt” podcast. He said, “Now we're trying to kind of figure out who's in and who's out in terms of who this actually applies to.”

Here's what we know of the announcement.

What does the policy say?

A May 21 USCIS policy memorandum said people seeking adjustment of status must do so through consular processing via the Department of State outside of the country. It also instructs immigration officers to look for positive and negative factors for a person's application to become a permanent resident.

“We’re returning to the original intent of the law to ensure aliens navigate our nation’s immigration system properly,” Zach Kahler, a USCIS spokesman, said in a May 22 statement. “From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”

Parisa Karaahmet, a partner at the immigration law firm Fragomen, told USA TODAY the memo is applicable to any person seeking adjustment of status.

The Immigration and Nationality Act provision, now over 70 years old, allows people who have been admitted, inspected and paroled into the country to go through the adjustment process, Orozco said.

Who is included?

Every year, about 1 million people become green card holders in the country, according to Department of Homeland Security data. Generally, Orozco said, around half of green card recipients apply from outside the United States and the other half get it while already in the country. The recent USCIS announcement applies to the latter category of people already in the country.

While no one seeking adjustment of status is exempted, Karaahmet said H- and L-visa holders, which are typically used for employers, may have an easier burden in terms of showing they warrant favorable exercise of discretion. Other factors, she added, may include community ties and involvement supporting communities, a history of complying with immigration laws and American laws in general, filing tax returns, and perhaps family ties.

In emailed responses to USA TODAY, the Department of Homeland Security said the policy would have no "noticeable impact on highly qualified applicants and skilled professionals who have followed the law."

"These aliens benefit the national interest and provide economic benefits to the United States and will continue to merit the favorable exercise of discretion," DHS said.

DHS said President Donald Trump was continuing to prioritize immigration that helps the country "culturally, socially, and financially" while preventing "mass third world migration."

People under refugee or asylum status can obtain a green card after a year. But because they've already been vetted to enter the country, Orozco said they wouldn't have to return to their home country under the policy memo. Besides, he added, it would be unjustified to send someone back to the country they fled under refugee status.

Who has it harder?

People who may have entered through other visa categories or overstayed their visa may have a harder time, Karaahmet said. 

A Fragomen legal explainer said the new guidance may make the adjustment process even more demanding, particularly if someone has had interactions with law enforcement, immigration status violations, unauthorized employment, temporary entries followed by adjustment or other factors seen as negative by USCIS.

What about countries on Trump’s travel ban?

The State Department currently has a growing list indefinitely ending visa processing for people from 75 countries, according to the Council on Foreign Relations. These include American adversaries such as Russia and Iran, but also Brazil, Colombia and Thailand. Consular processing wouldn’t be available to them.

Orozco said the change puts people in a difficult position where they might not know how to move forward with their cases because of restrictions based on their nationality or if they should be applying in the country.

Karaahmet, the immigration lawyer, said these will present challenging issues for applicants because they will have a significant burden to demonstrate positive factors to warrant an immigration officer siding with their case for adjustment of status.

Applicants should have "very good counsel in terms of determining how to prepare for these adjustment of status filings and interviews,” she said.

And even so, she added, they need clarity on how people can fix their applications if there's an issue.

Contributing: Dana Taylor

Eduardo Cuevas is based in New York City. Reach him by email at [email protected] or on Signal at emcuevas.01.