New USCIS memorandum says every immigrant must leave the U.S. while waiting for visa green card There was huge turmoil as experts deciphered what the new rules meant and what visa holders should do. The agency said visa holders who are temporarily in the United States and want to obtain a green card must return to their home country to apply. The logic is: the visa holder is coming to the U.S. temporarily and the green card is for a permanent resident, so there is a conflict of intent and therefore the visa holder should not be allowed to stay in the U.S. while waiting for the green card.
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Russian-born venture capitalist and founder Nick Davidov denounced the move and asked whether it meant every foreign-born scientist would have to stop working and leave the country to wait for a green card in their country of origin. “So everyone on an O1 or H1B visa has to stop working legally in the United States, return to their home country and wait for years of backlog? This includes top scientists at our universities, founders of multi-billion dollar companies. If we look at individual countries, it’s even more nonsense. Indians will have to wait for decades. Russians have nowhere to go (no US embassy in Russia, hello?). This is the worst way imaginable, undermining the important work of the country and pretending that some loopholes are being closed,” Davydov said.Immigration expert James Blunt said even Melania Trump could be asked to return to her home country and wait for her green card under the new policy. “USCIS should be the plumbers maintaining the pipes in our immigration system. Instead, these people are destroying entire water lines with sledgehammers,” Blount added.
Are H-1Bs exempt from this rule?
No, H-1Bs are not exempt from the new rules. The H-1B visa is considered a dual-intent non-immigrant visa. The dual intent part means that it is a temporary visa, but a person holding an H-1B visa can intend to immigrate permanently. But this does not exempt H-1B visa holders from the “return to home country” rule. USCIS noted in its memorandum that adjustment of status is “extraordinary relief” and that “maintenance of lawful status in the dual intent category is not, by itself, sufficient to warrant a favorable exercise of discretion.”“Immigration lawyers say the provision is sure to be subject to legal challenges because there are some ambiguities in the memo that are not what Congress intended when it launched the H-1B visa program.Immigration attorney Cyrus Mehta said the USCIS is developing new rules that would deny non-citizens the right to obtain green cards. “While adjustment of status is discretionary under INA 245, it has never been interpreted as a special form of relief, and USCIS is developing a new standard to deny non-citizens the right to obtain a green card in the United States,” Mehta said.Adjustment of status is the process of applying for a green card within the United States rather than leaving the country for a visa interview.
