A new USCIS policy memo attempts to significantly restrict adjustment of status applications within the United States, a move the speaker argues is legally questionable and likely to be challenged.
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All right, guys. So, today we're going
to be talking about the new USCIS policy
memo that seeks to uproot the last 40 to
50 years of immigration policy by
restricting people from adjusting status
from within the United States. Let me
just say this video is not designed to
freak you out. In fact, the opposite. I
hope by the end of this video, you're
going to see that everything's going to
be okay and you'll understand why. We're
going to be going through the actual
memo. We're going to be reading it,
going through each part of it, and then
talking about how this impacts
adjustment of status applicants, people
who have applications currently pending
and future applicants. You know, a big
part of the reason why I'm spending my
Sunday, it's currently 300 p.m. on
Sunday, May 24th, making this video is
because we've been getting like hundreds
of calls from existing former and future
prospective clients absolutely freaking
out about this. And you know, I suspect
this was dropped right before Memorial
Day weekend. This really poorly written
memo that's, by the way, not even signed
was dropped right before Memorial Day
weekend just to create tons of panic and
fear in the immigration community. But
it's actually having the opposite
effect. Immigration attorneys and the
immigration bar at large are galvanizing
to push back. and we expect multiple
lawsuits and probably some circuit court
decisions preventing this policy from
going into effect over the next few
weeks. But anyway, let's get into it.
I'll tell you everything I know about
this memo. And I did intentionally wait
a few days after it dropped to talk
about this because I've been in
discussions with other immigration
attorneys hearing what they have to say
about it. People who've been doing this
for like 50 years have really strong
opinions. So, we're going to be
discussing all of that in today's video.
Um, and by the way, for those of you who
are new to my channel, this is not what
my videos normally look like. They're
usually much cleaner and more polished
and uh cinematic, but I'm filming this
one on my phone using my earbuds. So, no
editing. This is going to be done in a
single take. I will be making mistakes
and it's not going to be a super clean
edited video. Anyway, so policy memo.
And by the way, I have my laptop open. I
have some resources on my desk. I'll be
pulling them up. So, if you see me
looking away, that's why. So, this
policy memo says, "Adjustment of status
is a matter of discretion and
administrative grace.
And an extraordinary relief that permits
applicants to dispense with the ordinary
consular visa process." Let's stop right
there. First of all, the Trump administration
administration
issued a 75 country immigrant visa ban.
So, this is my theory. Steven Miller
realized that brown and black people
from those 75 countries are still able
to become permanent residents and that
really pissed him off. And so he figured
out a way to use the discretionary
authority that USCIS officers have to
prevent them from adjusting status in
the United States. So at first glance,
what a lot of the rumors are is that no
one can adjust status anymore. And I've
read it in multiple news sources, like
from reputable news sources like this
one here, Business Insider,
um, Forbes, like real news outlets are
saying that people can't get green cards
in the US anymore. That's not true. And
we're going to be going through this.
Even on the face of the policy memo, if
you take this as literally as possible
and assume that this is going to fully
go into effect, which I highly doubt, it
still doesn't say that. So says, "The
purpose of this memo is to remind
officers and the public, all right,
dude. That adjustment of status under
section 245 of the immigration and
nationality act is a matter of
discretion and administrative grace not
designed to supersede the regular
consular processing of immigrant visas.
USCIS reaffirms this consistent and
long-standing approach and declares as a
matter of general policy its intention
to faithfully apply the statutes
consistent with this understanding." All
right. It goes some through some
background and analysis. It says, "It
has been long established that not every
alien who meets all other eligibility
criteria for adjustment of status will
be granted adjustment because adjustment
under most provisions is granted only as
a matter of discretion and
administrative grace. By the way, when
they provided those quotes, they cited
to a case matter of blas
and n decision 628 on page 6 uh 626 on
page 628 BIA 1974. So, they had to rely
on a case from 1974 to try to make this
argument and they did so very poorly. In
fact, I looked up this case and matter
of blas is some guy who violated so many
provisions of the immigration law. It
was uh it was a guy who was married in
the Philippines with four kids. He
misrepresented his intent at the
consulate. He didn't disclose that he
had adoptive parents in the US. He got a
tourist visa, came to the US, got
divorced in Nevada, remarried a
permanent resident, and applied for
adjustment of status. He was in removal
proceedings, granted voluntary
departure. He never left, but he was
somehow still eligible for adjustment of
status. I don't know what the law was
like back then. And then the judge
denied it as a matter of discretion.
Rightfully so. This dude violated like
so many different provisions of the
immigration law. And by the way, it says
right here, he entered with fraudulent
intent. So, you know, it shows how weak
the government's argument is when they
rely on a selective case from 1974 that
had totally prejuditial facts to this
guy. Um and then it is true that in this
decision there's a quote that says every
adjudication must be made on a
case-bycase basis. Were we to promulgate
overly strict guidelines, we would in
effect infringe upon the immigration
judge's discretionary authority. So, by
the way, the judge exercised discretion
uh negative discretion, so denied the
case in removal proceedings, not the
same as applying for adjustment of
status in front of USCIS, although the
discretionary element is still there.
And this policy seeks to abuse that
discretionary authority to implement new
rules that were not intended by
Congress, even though they claim that
the other the reverse is actually what's
happening. So, let's continue. The Board
of Immigration Appeals has consistently
characterized adjustment of status as an
extraordinary form of relief dispensing
with ordinary immigration procedures.
Again, Board of Immigration Appeals
generally refers to people who are
appealing deportation proceedings. The
Supreme Court has also consistently and
routinely stated that adjustment of
status is a matter of grace. Okay, not
sure what that means. The lower court
likewise describe adjustment in terms of
being an extraordinary act of
administrative grace. courts repeatedly
describe adjustment as extraordinary relief
relief
in limited context. That's that's taken
out of context. Let's see what the
citation here.
We're going to have to look these cases
up. Um they do site to one case bias
versus United States. Um second circuit
case said the decision to grant an
adjustment of status is purely
discretionary and constitutes an
extraordinary remedy to the granted only
in meritori extraordinary remedy to be
granted only in meritorious cases. So
the alien bears the burden of proof of
persuading the US persuading USCIS to
exercise its discretion favorably. Yeah,
that's not what this memo is saying.
This memo is saying or a lot of people's
interpretation of the memo is that most
people are not eligible for adjustment
of status, but every case I've read
that's been cited to here just says it's
a case-bycase discretionary
determination. Yes, which was always
true. So, uh, let's continue. Congress
laid out a detailed statutory scheme
governing and limiting adjustment of
status for aliens present in the United
States and has committed the
administration of the lawful immigration
system to the Secretary of Homeland
Security and the Department of Homeland
Security. Okay. Accordingly, such
authority must be exercised with the
utmost caution and with a view towards
national interests.
Feel like they just made that part up.
Anyway, let's continue. USCIS exercises
the secretaries secretar's authority
over the lawful immigration system under
this grant of authority. When USCIS
makes findings in the adjustment of
status process, they constitute an
unreviewable decision or action by the
secretary as well as a judgment
regarding the granting of relief under
the statute. Congress established
significant limitations on the
eligibility of aliens to adjust status
that do not apply to aliens seeking
immigrant visas and admission from
outside the United States. Most aliens
seek discretionary adjustment of status
under section 245A of the INA,
Immigration and Nationality Act. Even
when aliens have been inspected and
admitted or parrolled, Congress has
placed additional limits on their
eligibility for adjustment of status
which do not apply to aliens seeking
immigrant visas and admission outside
this country. Further evidencing a
preference for aliens seeking to
immigrate through the ordinary
immigration process from abroad through
consular processing. Section 245C of the
INA lists many classes of aliens
precluded from even accessing adjustment
of status under section 245A of the INA
despite otherwise proper inspection and
admission or parole with certain limited exceptions.
exceptions.
Yeah. So they straight up limit certain
classes of immigrants from adjusting
status. So if you're not one of those
classes of immigrants, Congress clearly
intended for you to be able to adjust
status. The reasoning here is
ridiculous. But anyway, let's continue.
A grant of adjustment of status under
section 245A of the INA is
discretionary. Okay, you already said
that. An alien bears the burden of
showing why administrative discretion
should be favorably exercised. So, I
actually highlighted that line because I
just want to keep repeating. All of
their citations basically say it's
discretionary case by case. So, we're
going to be talking more about this
later, how you can strengthen your case
so that you still apply and so that
USCIS exercises a favorable exercise of discretion.
