A new USCIS policy memorandum has caused concern for people applying for green cards in the United States. Many people are asking whether this means green cards are now impossible to get.

The answer is no.

This memo does not mean that green cards are over. It does not mean that every adjustment of status application will be denied. But it may mean that some applicants need to be more prepared, especially if they are applying through a regular family-based or employment-based case.

This post is based on an Instagram Live by immigration attorney Moumita Rahman about USCIS’s new adjustment of status memo. Watch the full video above, or view the original Instagram Live here.

What Is This USCIS Memo About?

The memo says that adjustment of status is a matter of discretion and administrative grace. It also describes adjustment of status as extraordinary relief.

Adjustment of status is the process that allows some people in the United States to apply for a green card without leaving the country.

There are several different ways someone may apply for adjustment of status, including through:

• A family petition
• An employment-based petition
• VAWA
• T visa
• U visa
• Asylum

The memo appears to apply mainly to people who entered the United States with inspection, entered with a visa, or were paroled into the United States and are now applying for a green card through a non-humanitarian case.

For example, this may apply if your spouse is petitioning for you, your adult child is petitioning for you, or you are applying through an employment-based case.

Does This Memo Mean Green Cards Will Be Automatically Denied?

No.

USCIS has always had discretion in adjustment of status cases.

That means just because someone files Form I-485 does not mean the case is automatically approved simply because the person meets the basic eligibility requirements.

In immigration, discretion means that USCIS looks at the positive and negative factors in the case.

Your positive factors need to outweigh your negative factors.

What Are Positive Factors?

Positive factors may include things like:

• Length of time in the United States
• Family ties in the United States
• Hardship
• Lack of criminal history
• Lack of fraud or misrepresentation
• Other favorable facts in the case

These are the kinds of things USCIS may consider when deciding whether someone deserves a favorable exercise of discretion.

What Are Negative Factors?

Negative factors may include things like:

• Immigration violations
• Criminal history
• Criminal convictions
• Fraud or misrepresentation
• Other issues that may require a waiver

If you have negative factors in your case, it is especially important to be prepared. You may need to show stronger positive factors to outweigh the negative ones.

Who May Be Affected by This Memo?

This memo may affect people applying for adjustment of status through regular non-humanitarian cases.

That may include people applying through:

• Marriage to a U.S. citizen or green card holder
• A family petition
• An employment-based petition

If you are filing a regular adjustment of status case, this memo may apply to you.

That does not mean your case will be denied. It means you may need to work harder to show why your case should be approved as a matter of discretion.

Does This Memo Affect VAWA, T Visa, U Visa, or Asylum Cases?

According to Moumita Rahman’s explanation, this memo should not affect people adjusting status through humanitarian-based cases in the same way.

That includes:

• VAWA
• T visa
• U visa
• Asylum
• Other humanitarian-based applications

These cases are different because they do not necessarily require a person to have entered the United States lawfully with inspection.

However, even if your case is not supposed to be affected by the memo, it is still a good idea to be prepared. If you are called for an I-485 interview, you should be ready with evidence supporting your case.

Photo courtesy of USCIS.

What If You Already Have a Green Card Interview Coming Up?

If you already have an I-485 interview coming up and your case falls under a category affected by this memo, you should prepare evidence showing your positive factors.

That may include evidence of:

• Your ties to the United States
• Your length of residence in the United States
• Your lack of criminal history
• Other positive factors in your case

If you have negative factors, such as immigration violations or criminal history, those issues should be addressed before the interview.

Should You Apply for a Marriage Green Card Right Now or Wait?

If you are thinking about applying for a green card through marriage, the first step is to get your case evaluated.

Some people may have serious risk factors, such as:

• A prior order of deportation
• Serious criminal issues
• Other immigration violations

If you have those issues, you need to be very careful before filing anything.

But waiting is not automatically safer.

If you are in the United States without a green card, without a work permit, and without legal status, waiting may not protect you. Immigration enforcement is active, and doing nothing can also carry risk.

The better approach is to have your case evaluated, understand your risk factors, and then decide how to move forward.

Is a Real Marriage Enough?

If you are applying through marriage, your marriage must be real.

It is never advisable to enter into a marriage for the purpose of getting a green card. A fake marriage or contract marriage was never worth it before, and it is especially not worth it now.

If your marriage is real, you have evidence, and you do not have serious immigration violations or criminal history, you may be okay. But it is still important to prepare your case carefully.

Why Filing Alone Can Be Risky

Filing for a green card is not just about filling out forms.

If USCIS is focused on discretion, then your application should show your positive factors clearly. If there are issues in your case, those issues should be reviewed and addressed.

An attorney can help review your case for possible issues, prepare the application carefully, and protect your interests if you have an interview.

Our office goes to interviews with our clients because USCIS officers may raise issues, state things incorrectly, or treat clients unfairly. Having an attorney there can help protect your interests.

Does This Memo Mean You Have to Leave the United States?

No.

Even if you are applying through a regular adjustment of status case, this memo does not automatically mean you have to leave the United States.

The memo may be trying to push people toward consular processing, but consular processing is not possible or simple for everyone. Leaving the United States can create additional problems for some people.

Before making any decision about leaving the United States, you should speak with an experienced immigration attorney.

The Law Is Still the Law

A USCIS memo cannot override the law.

The law is written by Congress. Policies and memorandums may affect how the government tries to handle cases, but they do not erase lawful immigration pathways.

This memo may create more challenges for some applicants, but it does not mean people should give up.

If you have a lawful pathway, that pathway may still exist.

Bottom Line

This memo does not mean the end of green cards.

It does not mean every adjustment of status case will be denied.

But it may mean that some applicants need to be more prepared, especially people applying through regular family-based or employment-based cases.

If you are applying for a green card through marriage, family, or employment, you should understand whether this memo may affect you. You should also know whether your case has any risk factors before you file or before you attend an interview.

Do not give up.

Do not file blindly.

Do not go through this alone.

If you are worried about how this memo may affect your case, contact us today for a confidential case evaluation. We can help you understand your options before you file or attend an interview.

Disclaimer: This article is for general informational purposes only and does not create an attorney-client relationship. Every immigration case is different. Speak with an experienced immigration attorney before making decisions about your case.