Trump Green Card Policy Shuns Decades of Legal Immigration Norms

A new Trump policy declaring approval of green cards within the US an exceptional benefit upends legislative history and court precedent, making it a likely target of legal challenges.

The guidance outlined in a US Citizenship and Immigration Services memo released last week targets a process that’s been a keystone for the legal immigration system in the US for decades. Adjustment of status allows foreign nationals with a temporary status—like H-1B workers—to apply for lawful permanent residency without having to leave the country. But USCIS now says green card seekers would be required to return to their home countries except in extraordinary circumstances.

The memo is the latest measure to restrict access to immigration benefits under the Trump administration, which has repeatedly found itself in court defending departures from long established policy. The Department of Homeland Security is fighting multiple lawsuits in district and appellate courts over a $100,000 charge to admit H-1B workers, the Trump gold card program, and mandatory detention for migrants detained in the US.

“You don’t create a roadway, and expand it and expand it, and then suddenly turn it into a one lane highway with an off-ramp to nowhere,” said Angelo Paparelli, a partner at Vialto Law (US) PLLC.

While it’s unclear how broadly USCIS officers will apply the memo, many immigration attorneys say it won’t change their approach to pursuing adjustment cases.

It’s “business as usual” for major common employment-based categories like H-1B holders, said Caroline Tang, a shareholder at Ogletree Deakins. Still, she and other attorneys expect more agency scrutiny of whether employment-based applicants have maintained the terms of their status when they apply.

Legislative History

More than half of new green card holders each year are approved through adjustment of status, rather than processing applications through a consular office abroad. That means businesses don’t experience disruptions to the work of key employees already in the country and US citizens aren’t separated from immediate family members for long periods.

The process can be lengthy for applicants, taking years because of annual per-country visa caps. The USCIS memo deems that established, if often arduous, routine as an “extraordinary” form of relief.

The agency’s position applies the original intent of the law, USCIS said in its announcement of the policy. Attorneys say, however, that Congress first authorized adjustment of status as a path to permanent residency in 1952 and lawmakers have repeatedly amended the law to make allowances for the process.

That includes a 1990 reauthorization of the Immigration and Nationality Act explicitly allowing for H-1B and L-1 visa holders to pursue permanent residency without affecting their temporary status—what’s known as dual intent. A later update allowed H-1B workers to switch employers, assuming they would pursue permanent residency in the US. And another provision granted the possibility of adjustment of status even with up to 180 days of violations for employment-based applicants.

“The standard they’re seeking to apply is inconsistent with the message that Congress has sent over many years,” said Louis Massard, a partner at Corporate Immigration Partners.

Legal Challenges Brewing

The agency is basing its position that consular processing should be the default for green card applicants on circuit court cases and Board of Immigration Appeals decisions involving significant adverse factors—among them, marriage fraud and grand theft. In doing so, immigration attorneys say it ignored a key decision finding that adjustment should ordinarily be granted as a matter of discretion.

That decision, Matter of Arai, makes clear that without any negative factors, “the presumption is someone should be approved for adjustment of status,” Vialto’s Paparelli said.

Efforts to challenge denials of individual requests to adjust status could face hurdles, however, in the wake of a 2022 Supreme Court ruling limiting court jurisdiction over decisions involving discretionary relief. But the high court justices’ subsequent decision gutting deference to agency interpretation of unclear laws in Loper Bright Enterprises v. Raimondo means USCIS won’t get that deferral from courts on a major departure from past policies, attorneys said.

The guidance marks an abrupt change from its established policies without explanation, Paparelli said. “Ultimately this will get to the courts.”

Another likely argument against USCIS is that the agency can’t add criteria for adjusting status without formal rulemaking, and new criteria must still comply with the INA, said Amy Nice, a fellow at Cornell Law School and counsel at the Institute for Progress.

Requiring applicants demonstrate eligibility for extraordinary relief circumstances to avoid consular processing contradicts the statute, she said.

“That’s illegal and they can’t do that,” she said. “Discretion means you exercise judgment as to whether an applicant has satisfied the regulation that implements the statute. Discretion doesn’t mean ‘I don’t feel like it.’”

‘Scare Tactic’

DHS applicants providing an economic benefit to the US would be allowed to continue the immigration process in the US. The memo won’t have any “noticeable impact on highly qualified applicants and skilled professionals who have followed the law,” the agency said.

While many are waiting to see how the memo is carried out by individual officers, several attorneys said they’ll still advise clients to continue with plans to adjust status if they’re eligible.

“Don’t overreact,” Massard said. “The laws haven’t changed.”

The unpredictability of what may happen in the interview room, however, makes the process fraught for even the most law abiding applicants, said Jeff Robins, a partner at business immigration firm BAL.

“It has the potential to be devastatingly broad,” he said.

Mike Watkins, an immigration attorney and former USCIS supervisor, said he’ll spend more time establishing why adjustment in the US is critical in applications—including showing hardship to companies if a worker’s employment is disrupted.

The memo’s biggest practical impact could be discouraging applicants broadly from pursuing legal permanent residency, he said.

“I think it’s mostly a scare tactic,” Watkins said.