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.
discretion.
DHS evaluates applicants to the exercise
of discretion and administrative case uh
grace on a case-byase basis. again.
With limited exe with limited
exceptions, the statutory scheme
suggests that Congress expects aliens
parrolled into the US or admitted into
the US as non-immigrants to depart
rather than pursue adjustment of status.
Yeah, but not entirely true. If you
enter with non-immigrant intent like a
tourist visa and then you change your
intent after you enter the US because
there's some sort of change circumstance
for example your boyfriend, girlfriend,
fiance, whatever proposes to you and you
decide, hey, I want to live with them
after I marry my US citizen spouse.
That's perfectly legal. That is what
Congress intended. That's why it's in
the statute. Anyway, let's continue.
Such aliens are generally expected to
pursue an immigrant visa and admission
from outside the US if they wish to
reside permanently in this country.
Yeah, but you literally restricted
immigrant visas from 75 countries. So,
you just don't want immigrants to become
permanent residents. That's straight up
what's happening here. It's ridiculous.
While such aliens may be otherwise
eligible for adjustment of status, their
contravention of this expectation and
attempt to avoid the ordinary consular
immigrant visa process, usually
accompanied by their violation of our
immigration laws, all right, that's
that's a bit of a jump, are adverse
factors that the aliens may need to
offset by showing by showing of unusual
or even outstanding equities.
The absence of adverse factors by itself
does not demonstrate such unusual or
outstanding equities.
Okay. So what they're saying is if you
have a pretty serious history of
immigration violations and what they in
what they're what the author of this is
really saying is like if you've
overstayed your visa
for a long period of time, you need to
submit evidence of additional equities.
evidence that you contribute to the
United States. And we'll look at other
sources to see where I came up with
that. Um, so that the USCIS officer can
favorably exercise discretion. So, I
would interpret that to mean let's say
you overstayed your tourist visa 20
years ago, married a US citizen, apply
for adjustment of status, now you have
no criminal history, you have positive
economic contributions, you've been
paying taxes in the United States, you
have no criminal history, you volunteer,
you're you're an upstanding member of
society and you submit evidence of all
of those things, I think USCIS should
exercise favorable discretion even under
this ridiculous policy memo which is
likely to be overturned very quickly.
Okay, now we get to the juicy part.
Guidance, which is not that juicy at all
because it doesn't really tell them to
do anything.
Where consular processing is available
to an alien based on the immigrant
category in which he or she seeks
adjustment of status. In determining
whether the alien warrants a favorable
exercise of discretion, officers are to
consider the consistent understanding of
the courts and the BIA that adjustment
of status is an extraordinary
discretionary relief to the regular
immigrant visa process and is an act of
administrative grace.
Where adjustment of status is in the
discretion of USCIS, officers are
reminded that they are to consider all
relevant factors and information in the
to in the totality of the circumstances
in exercising that discretion. For
example, existing guidance directs
officers to consider violations of our
immigration laws or the conditions of
immigration status held, current or
previous instances of fraud or false
testimony in dealings with US USCIS or
any government agency, whether an
alien's application for admission or
parole violated the laws. I don't know
what that means exactly. laws,
regulations, and policies in place in
place at that time and any conduct of
the alien after admission as a
non-immigrant or parole inconsistent
with the purpose of that non-immigrant
status or parole or with representations
made to consular or DHS officers when
applying for a visa admission or parole.
An alien's failure to comply with the
conditions of their non-immigrant
admission or parole and an alien's
failure to depart as expected are highly
relevant to this analysis. They just
added they straight up made that part
up. There's no citation whatsoever.
They're just saying it's now highly
relevant to the analysis.
This is particularly true when the
failure is connected to the alien's
intention to reside permanently in the
United States and the alien could have
achieved that goal through the normal
immigrant visa process. USCIS reminds
its officers that applying for
adjustment of status is not inconsistent
with simultaneously maintaining
non-immigrant status in a category with
dual intent
like an H-1B visa for example. Given the
significant privileges granted to lawful
permanent residents, USCIS reminds its
officers that they must consider and
weigh all the relevant evidence in the
record, taking into account the totality
of the circumstances to determine
whether the alien is suitable for
permanent residence and if approval of
the alien's adjustment of status
application is in the best interest of
the United States.
Okay. Adjudicators must weigh all
positive and negative factors.
All right, so this part's actually
really important. Including family ties,
immigration status and history, the
applicant's moral character. Not sure
what that means. Usually it means pay
taxes, uh, don't have criminal history,
and any other relevant factor that bears
on determining whether the alien
warrants a favorable exercise of
discretion. USCIS reminds officers that
when they deny a benefit request, they
must issue a denial notice explaining in
writing the specific reasons for denial.
When the deni when the denial is based
on an unfavorable exercise of
discretion, the denial notice must
include an analysis containing the
positive and negative factors considered
along with an explanation of why the
negative factors outweigh the positive
factors in the decision. So this part is
the whole thing. This is the whole thing
you should get out of this memo. USCIS,
the officer in his or her discretion is
supposed to implement a balancing test
saying, "So you overstayed your visa.
You have no criminal history."
Well, actually, you overstayed your
visa, you have no criminal history, you
have a US citizen spouse, you have US
citizen children. Okay, we should
exercise favorable discretion. contrary
uh you entered with a tourist visa and
then three months later you applied for
adjustment of status when you applied
for the tourist visa you told the
officer you didn't have a boyfriend or
girlfriend in the US and all of a sudden
you do
it looks like you lied and you haven't
contributed anything to the US so
negative exercise of discretion in
theory that's how it could possibly play
out but you know in that same example
example, but you have a highpaying job
and you're economically productive.
Like, it could go either way and there's
no guidance on this aside from this
really vague memo so far.
USCIS will carefully review the various
pathways to discretionary adjustment of
status as well as a discrete popula as
well as discrete populations of aliens
applying for adjustment of status in the
context of the consistent and
long-standing finding that adjustment of
status is an extraordinary matter of
discretion and administrative grace not
designed to supersede the regular
consular process of immigrant visas.
USCIS may provide policy guidance
specific to certain adjustment of status
categories or discrete populations of
aliens to aid officers in identifying
those applications that may or may not
warrant this act of grace and exception
to the regular consular process.
All right, so there's that.
So, there's also this Business Insider
article where the USCIS spokesperson
Zack Kaylor, I think that's how it's
pronounced. Uh, and this is a quote from
him that says, "While we work to
operationalize this, people," and this
refers to this memo, "People who present
applications that provide an economic
benefit or otherwise are in the national
interest will likely be able to continue
on their current path. while others may
be asked to apply abroad depending on
individualized circumstances,
framing the policy shift as a return to
the intent of Congress. Well, the intent
of Congress is for people to be able to
adjust status in the United States if
they're eligible.
What I take from this quote is that you
can still be eligible to adjust status
even if they implement this fully as
long as you provide some benefit to the
United States.
Okay, let's look at one or two other
things and then talk about it a little
bit. Um, let's see. Okay, so in the
actual U on the USCIS website, this is
what most people read and this is why
most people are freaking out. They
didn't actually read the memo. Um they
that same guy, Zack Kaylor says, "We're
returning to the original intent of the
law to ensure aliens navigate our
nation's immigration system properly.
From now on, an alien who is in the US
temporarily and wants a green card must
return to their home country to apply,
except in extraordinary circumstances."
That's not what the policy memo actually
says, by the way. The presumption here
uh you know the way I read it is that
most immigrants don't provide a benefit
to the United States um hasn't been my
experience. Most of my clients who apply
for adjustment of status are net
positive for the United States and have
tons of evidence of that. All we need to
do now is submit it until this USCIS
policy memo gets overturned by a circuit
court injunction.
All right, that's enough of that. Um,
okay guys. So, a couple thoughts here.
Okay. So, I expect multiple lawsuits to
be filed within several weeks. I mean,
there's a there's a
message board that I'm a part of, a
private immigration attorney message
board where, in my opinion, some of the
best immigration attorneys in the
country provide guidance to other
immigration attorneys. And you know,
there's a joke that like within 48
hours, does that include Memorial Day
weekend? And by the way, it's pretty
clear that they dropped this unsigned
USCIS policy memo right before Memorial
Day just to ruin our weekends. Um, this
won't stand up. You can't supersede the
actual Immigration and Nationality Act,
the actual law written by Congress with
some BS, you know, policy memo. That's
not how law works. You can't just use a
policy memo to That's like using an
executive order to overcome a law that
was written by Congress. Like any court
would see through that and reverse it as illegal.
Okay.
Oh, and by the way, um, if you think
that this is going to stop people from
applying for adjustment of status, let
me just show you something.
These are three adjustment of status
applications that we're going to be
filing on Tuesday. This isn't stopping
anyone from applying for adjustment of
status, but there are some things to
note. So I do think within a few weeks
like within two weeks that's my guess
there's going to be some sort of circuit
court enjoining this policy from going
into effect and then you know this USCIS
website which issued this uh this press
release you know print out right here is
going to say something at the top like a
single circuit court judge in this state
thought he had the authority to change
entire immigration policy for now we
will comply with this that's what they
do every time they do something illegal
under the Trump 2.0 administration and
you know the federal judges apply the
law the way it was intended. I see
multiple challenges to this. There are
issues with the Administrative Procedure
Act. There are due process issues. It's
inconsistent with the with the intent of
Congress. The whole shebang. So, this
isn't going to stand. This is like the
biggest piece of garbage I've seen the
Trump administration put out yet with
regard to immigration. But it is also
very scary and I think that is the real
intent behind it just to scare people. I
still fully intend to apply for
adjustment of status. Until this is
reversed though, some guidance for
people who have adjustment of status
applications pending. I would bolster
your application with additional
evidence of positive equities. So the
USCIS spokesperson specifically said
while we work to operationalize this
people who present applications blah
blah blah but those first few words
while we work to operationalize this.
So, I don't think there's any guidance
on how USCIS officers are to
operationalize this. And honestly, by
the time they have like actual
procedures, hopefully there's going to
be a circuit court case preventing this
policy in its entirety from going into
effect. And then this will just have
been something that ruined Memorial Day
weekend and prevented me from spending
my Sunday with my 2-year-old because I'm
filming this video for you guys.
Um, for future adjustment of status
applicants, I wouldn't worry about this.
Like, if you're about to file an
adjustment of status application, I
would still file it. Um, I'll put out
more guidance in the coming weeks on how
we should adjust our applications. There
is one attorney who I highly respect
who's saying, you know, you should treat
every application from now on like it's
a waiver package, like include a ton of
evidence of positive equities. That is
good guidance. I mean, for people who
have adjustment of status interviews in
the upcoming week, I would try to upload
additional evidence of positive
contributions. I don't think USCIS
officers are actually going to be
implementing this in the coming week. I
think there's going to be mass
confusion. They're going to need
additional guidance. And for now,
they're my speculation, pure speculation
is that they're just going to be
processing adjustment applications
normally. But their plan probably in the
coming weeks is to issue all sorts of
guidance for different populations. Like
people who were parrolled into the US
are subject to these specific
guidelines. people who entered on visa
waiver programs are subject to these
guidelines. We don't know exactly how
that's going to play out, but we do know
that this policy memo as it's written is
illegal. It is inconsistent with the
Immigration and Nationality Act, and you
can't use
a policy memo to change what the law
See, what else did I want to talk to you
guys about?
Okay. Well,
um I guess that's it for now. I'm going
to be putting out more videos on this in
the coming week or two once we have more
solid information after getting some
real live experiences at USCIS
interviews. I have a few coming up this
week. So, I should have a decent data
set to get back to you guys with actual
information on how things are playing
out on the ground. Guys, if you get real
value out of these videos, nothing would
help me more than for you to like and
share this video so that other people
have an opportunity to view it. There
are lots of loud voices out there right
now. I see it with some YouTube
immigration lawyers just, you know,
scaring the heck out of people. This is
not a super big deal. Um, this is
garbage. It's not. It's a poorly written
policy memo that selectively picks
random phrases from cases that are 50
years old to try to come up with some
new novel interpretation of the law.
Don't let it scare you. Enjoy your
Memorial Day weekend. If you guys are
new to my channel, by the way, most of
my videos are way more polished with
than this. I I'm not usually just
ranting in the videos. They're like 5 to
10 minute solid videos on topics that
you guys give me. So, if there's
specific topics you want to hear me
address, or if you have questions about
this video, you could always put a
comment in the video description and
I'll make new videos and I'll address
all of your questions and comments in
the upcoming videos that are coming up.
Um, if you're new to my channel and you
just want to stay uptodate on
immigration policy, be sure to
subscribe. And if you want to speak to
me directly, my name is Puand Darien.
I'm an immigration attorney handling
family based adjustment of status,
naturalization, and deportation defense
nationwide. Um, we are accepting new
cases right now. You could always click
the link in the video video description
below to schedule a consultation. And
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