On Friday, USCIS issued a new Policy Memorandum (PM-602-0199) on I-485 Adjustment of Status to Permanent Resident (“AOS,” or “green card”) applications. This announcement signals a meaningful shift in how USCIS officers will exercise discretion when adjudicating these applications. This may directly impact your employees.
It is important to emphasize that this is not a new policy or law. AOS approval was always a matter of discretion and this was always discussed in USCIS policy guidance; this announcement and memorandum are simply reminding the public and USCIS officers of this fact. This also does not mean that foreign nationals are prevented from applying for adjustment of status, nor does it restrict USCIS officers from approving adjustment applications.
That said, the renewed emphasis and the specific factors called out suggest officers may be applying a more critical eye to AOS applications going forward. It is important for HR professionals and employers to be aware of these factors, to anticipate potential increased scrutiny in adjustment of status applications, and to work closely with immigration counsel on AOS strategy for their foreign national employees.
What this means for HR Professionals & Employers
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H-1B and L-1 employees are likely to be largely unaffected by this development. The memo explicitly recognizes these as dual-intent visa categories. We do not anticipate a significant change in AOS adjudications for employees in these categories.
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Employees on TN, E, O, B, F, and other non-dual intent visas may face increased scrutiny. USCIS is emphasizing that these visa holders are generally expected to depart the U.S. after their nonimmigrant status expires and complete immigrant processing abroad. Applications from this group may draw additional discretionary review. Cases for such employees should be evaluated carefully to determine whether the best pathway is AOS or immigrant visa processing
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All pending and future AOS cases are subject to a full-record discretionary review. Officers are directed to weigh immigration history, status compliance, moral character, and overall equities in their exercise of discretion. This is true for every applicant, regardless of nonimmigrant visa status. USCIS officers have always been directed to weigh these factors, but the memorandum signals a potential shift in how discretion will be exercised in these reviews.
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Certain red flags will weigh heavily against approval. The memo specifically calls out violations of immigration status conditions, fraud or misrepresentation in dealings with any government agency, unlawful admission or parole, and conduct inconsistent with the purpose of a nonimmigrant visa.
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Failure to maintain status or depart on time is now explicitly a negative factor. The memo states this is “highly relevant” to the discretionary analysis.
Action steps
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Audit your pending I-485 cases. Flag any employees on non-dual intent visas (TN, O, E, B, F) who have a pending or upcoming AOS filing and discuss them with your immigration counsel to determine the best strategy. Immigrant visa processing is an option to consider.
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Flag any potential compliance concerns. If an employee has gaps in status, a prior overstay, or any immigration history that could raise discretionary concerns, contact us now – before the case is adjudicated.
- Brief your HR team. Make sure anyone managing immigration matters understands that AOS is not a rubber stamp, and that immigration status maintenance is more important than ever.
Additional information
We are still watching for additional guidance on how strictly this will be applied across specific visa categories, and whether certain groups will see higher denial or RFE rates. We will also be monitoring to see how strictly USCIS officers will apply this guidance in day-to-day adjudications.