After USCIS issued a controversial policy memo on May 22, some USCIS officials began asking green card applicants why they chose adjustment of status (AOS) instead of consular processing abroad, according to immigration attorneys.Lawyers told TOI that while some field officers are questioning applicants as to why they are not seeking immigrant visa processing in their home countries, some other officials have recently approved cases without referring to the memorandum. Another segment of USCIS officials are holding back on decisions, awaiting further clarity and guidance from the policy memo.TOI reported on May 24 that the memorandum introduced by the Trump administration did not abolish the AOS for dual-intent visa holders such as H-1B and L visa. Instead, it creates a more discretionary adjudication framework under which officials can require applicants to demonstrate why they deserve to adjust status within the United States.Rajiv S. Khanna, chief attorney at Immigration.com, had earlier warned that USCIS officials expect applicants to provide positive evidence to support adjustment of status, including tax compliance, financial contributions, family ties, professional status and other indicators of a strong presence in the United States.Subsequently, the New York Times quoted a Department of Homeland Security official as saying that the memo was not a comprehensive policy change and that individual immigration officials would determine whether applicants should complete the green card process abroad rather than in the United States.However, the memorandum remains in effect, prompting immigration attorneys to help applicants prepare more comprehensive evidentiary documents prior to AOS interviews and possible Requests for Evidence (RFEs).“For employees who are approved for AOS, it’s more important than ever to have well-prepared documentation that actively documents positive factors,” said Xiao Wang, CEO of Boundless. “This means going beyond the standard forms to include a letter of support from the employer describing the employee’s expertise and financial contributions, documentation of long-term legal employment and tax records, and any other evidence that convincingly tells the story of why the employee’s continued presence is good for the United States.”“Mitch Wexler, senior counsel at global immigration law firm Fragomen, pointed out that the AOS has always been a matter of discretion in law and the policy does not change the basic eligibility requirements. EB-5 investors and employment applicants remain fully eligible to apply for an AOS if they meet statutory standards.“What has changed is the emphasis. USCIS now directs officers to more explicitly assess whether an applicant merits the exercise of favorable discretion, including whether it is appropriate for the applicant to complete the process in the United States rather than abroad,” he said.Wexler said officials expected to conduct a “big picture” analysis, weighing the positives and negatives. Potential adverse factors may include previous immigration violations or conduct inconsistent with status, while favorable factors include long-term legal presence in the United States, stable employment, strong community ties, good moral character, and evidence that the applicant’s stay will benefit the country.For EB-5 investors (investment-related green card applicants), many of these positives are baked into the program itself, given its focus on capital investment and job creation. Likewise, H-1B professionals with long employment histories and long-term residence in the United States may have a strong advantage under this framework.Charles Kuck, a founding partner at Kuck Baxter, said cases involving previous immigration violations, unlawful presence, unauthorized employment, criminal records or fraud charges may face heightened scrutiny.“Some applicants may receive a request for evidence (RFE) seeking information about positive factors such as family relationships, employment history, tax compliance, community involvement and other favorable factors,” he said.Immigration attorneys say applicants should assemble documents such as tax returns, rental agreements, mortgage records, utility bills, bank statements, educational and professional certificates, children’s school records and letters of support from employers or community organizations to demonstrate their ties to the United States and strengthen their case for adjusting status. These may also come in handy if they need to submit additional information following a request for evidence.
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