U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum that reinforces an important principle: approval of an adjustment of status (AOS) application requires USCIS to exercise “discretion and administrative grace” on a case-by-case basis. In other words, AOS is discretionary and not guaranteed, even for applicants who otherwise meet all eligibility requirements.

While the memo does not change the law, it signals a more formal and potentially stricter application of discretionary review in AOS applications. Stated differently, the memo functions as a reiteration (not remaking) of current law.

What the Memo Says

USCIS reiterates that adjustment of status is:

• A discretionary benefit, not a right;
• An “extraordinary” form of relief; and
• An exception to the normal consular (overseas) immigrant visa process.

USCIS also explains that most AOS applicants have been inspected and either admitted or paroled and would have been expected to depart the United States when the purpose of their admission or parole has been accomplished. By failing to depart as required, the memo asserts that they are contravening Congressional expectations.

What the Memo Does

The memo reinforces that AOS approval ultimately depends on USCIS discretion. In addition, the memo directs USCIS officers to place renewed emphasis on weighing all relevant factors and information in the totality of the circumstances when deciding AOS cases.

The memo includes several factors that may weigh against approval, including:

• Status violations (such as overstays);
• Unauthorized employment;
• Failure to maintain lawful status;
• Misrepresentation or fraud;
• Conduct inconsistent with the stated purpose of admission or parole; and
• Remaining in the U.S. instead of pursuing consular processing.

Notably the memo asserts that AOS applicants “usually fail to maintain their nonimmigrant or parole status while their adjustment of status applications are pending.”

Positive factors included in the memo include:

• Family ties in the United States;
• Long-term lawful residence in the United States;
• Employment and financial stability;
• Humanitarian considerations; and
• Evidence of good moral character.

Additional positive factors not explicitly mentioned in the memo but referenced in the USCIS Policy Manual include: meeting the eligibility requirements for AOS, complying with immigration laws and conditions of any immigration status held, hardship to an applicant’s close relatives if the adjustment application is denied, property, investment or business ties in the United States, education and specialized skills and training obtained from a U.S. educational institution relevant to the current or prospective employment and earning potential, compliance with tax laws, and community service. The memo makes clear that positive factors must outweigh negative ones.

This memo does not change who is eligible for adjustment of status, nor does it eliminate AOS as an option, but it does instruct USCIS officers to look more critically at why adjustment is being pursued in the United States instead of an immigrant visa abroad (via a consulate).

What the Memo Means for Applicants

As written, the memo does not make exceptions for AOS applications filed before the memo was released. As such, it applies to all AOS applications, even those currently pending and filed before the memo was published. AOS applicants can therefore expect:

• Increased scrutiny of AOS applications;
• More detailed discretionary analysis in adjudications;
• Greater importance placed on an applicant’s immigration history and compliance; and
• Higher risk of denial if an applicant had prior immigration violations or a complex immigration history.

If you are planning to apply (or have already applied) for adjustment of status, you should keep the following in mind:

• Prepare for a discretionary review, not just an eligibility determination.
• Address any past immigration issues proactively and clearly.
• Provide strong evidence of positive equities, especially employment and financial stability, compliance with immigration laws, and family ties and hardship.

Applicants may also need to more thoroughly consider whether consular processing is strategically preferable.

This is a rapidly evolving situation, and Ice Miller’s Immigration team will continue to monitor updates.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.