New green card rules requiring applicants not to wait for green cards in the United States but to return to their countries of origin have sent shock waves as 1.2 million legal immigrants wait years to become permanent residents. Experts are awaiting more clarity on how USCIS will enforce the issue, while many say the new rule will be challenged in court as violating the law. Indian-origin immigration lawyer Rahul Reddy explained that the rules have not changed, the law has not changed, but the way green card applications are processed has changed.
What USCIS says in new rules
U.S. Citizenship and Immigration Services says people come to the U.S. on temporary visas and then apply to change their status to become permanent citizens. While they wait for this to happen, they continue to remain in the United States. USCIS says this should stop. People who want to become permanent residents of the United States should return to their home country and then apply for an immigrant visa.
What’s changed
For decades, visa holders who came to the United States legally and maintained legal status could apply for a green card through “adjustment of status.” “For decades, the protocol was this: If you followed the rules, maintained your status, had your I-140 approved, and waited your turn, once your priority date became current, your green card through adjustment of status was essentially a sure thing. The officer reviewing your file would mostly ask, ‘Is this person eligible? “If it is, approve it,” Reddy explained. “This agreement is now being called into question. The new memo reminds officials that granting a green card from within the United States is a favor, not a right. The official term is ‘discretionary’ – meaning officials can deny it even if you qualify. This memo not only reminds them that they have this power, but actively encourages them to use it,” Reddy said. “The most concerning part is how the memo views people on work visas. According to the memo, if you come to the U.S. on an H-1B, L-1 or O-1, the government’s expectation is that you will eventually come home. Not stay. The memo says that staying in the U.S. to get a green card, rather than returning to one’s home country and applying at a U.S. consulate, should be viewed by officials as a negative thing. Yes, the memo acknowledges that H-1B and L-1 are allowed with “dual intent.”“But it goes on to say that the stipend alone is not enough to get you approved,” Reddy explained.
What should H-1B visa holders who want a green card do?
Reddy said those who have filed for green cards must consult with attorneys and strengthen their arguments before USCIS forces questions. For those who are considering applying, the choice is more difficult as they may end up having to return to their home country and apply from there, a slow and dangerous path.
Is I-140 approved? Can I stay in the United States?
The new memo leaves many unanswered questions. Many experts explain from the memo that this only applies to the “adjustment of status” portion of the green card process, which only occurs when your priority date is in effect and you are ready to file Form I-485. To do this, people may have to return to their home countries, but those who have just filed their I-140 (green card application) will not have to leave the United States. India and China will take years to become priority dates, so there won’t be any immediate impact for those two countries, but the USCIS memo did not clarify those details.
