US Citizenship and Immigration Services issued a policy memorandum reaffirming that Adjustment of Status (AOS) under INA §245 is a matter of discretion and administrative grace, not an entitlement. The policy states that AOS adjudications remain a discretionary, case-by-case benefit and an extraordinary alternative to the standard immigrant visa process conducted through Consular Processing at US Consulates and Embassies outside of the US.
The policy memo serves as a reminder to both officers and the public that AOS is an extraordinary form of relief allowing individuals to bypass the standard consular visa process abroad and would impact foreign nationals currently in the US who have filed, or plan to file, an AOS application for permanent residence.
Key Takeaways
- Discretionary Privilege: Meeting the basic eligibility criteria for adjustment of status does not guarantee approval. USCIS considers the approval of such requests to be an “extraordinary act” of administrative grace. The applicant bears the burden of proving that administrative discretion should be exercised favorably in their case. Individuals filing AOS applications after violating their status or remaining in the US instead of departing may face adverse discretionary findings and may need to demonstrate unusual or outstanding favorable factors. It is also likely that intent at last entry to the US will be reviewed closely. Discretionary factors include:
- Compliance with immigration laws and status conditions
- Any history of fraud, misrepresentation or false testimony
- Unauthorized employment or status violations
- Whether the applicant failed to depart as required after admission or parole
- Evidence of positive equities, such as family ties, humanitarian factors and moral character
- Congressional Intent and Consular Processing: The policy states that Congress’ intent was for nonimmigrants and parolees to depart the United States once the purpose of their temporary stay is accomplished. Individuals who wish to reside permanently in the U.S. are generally expected to pursue an immigrant visa through ordinary consular processing from outside the country.
Evaluation Standards
- Weighing of Factors: USCIS officers must weigh all positive and negative factors in the totality of the circumstances to determine if approval is in the best interest of the United States. Relevant factors include family ties, immigration history, and moral character.
- Adverse Factors: Failing to depart the U.S. as expected or violating the conditions of an admission or parole are highly relevant adverse factors. To overcome such adverse factors, applicants may need to demonstrate unusual or outstanding positive equities. The mere absence of adverse factors does not automatically demonstrate outstanding equities.
- Dual Intent Categories: The memo acknowledges exceptions for nonimmigrant categories that permit “dual intent” (e.g. H-1B and L-1 status), and states that applying for adjustment of status is not inconsistent with simultaneously maintaining a dual intent nonimmigrant status, but that this by itself does not warrant a favorable exercise of discretion.
This policy memo states that US immigration procedures and regulations expect that individuals admitted under nonimmigrant classifications or paroled into the US should depart after their temporary stay and that the system is designed AOS should be granted only in appropriate cases rather than as standard practice.
The above is informational only and is not intended to constitute legal advice for any specific situation. Please feel free to reach out regarding any specific questions or issues.
