Recent media coverage regarding the adjustment of status process has caused significant confusion, fear, and misinformation. Some reports have incorrectly suggested that it is no longer possible to obtain a green card through adjustment of status in the United States and that all applicants must now return to their home country for consular processing. That is simply not true.

It is important to understand that the law itself has not changed. Adjustment of status has always been a discretionary benefit, meaning that USCIS has always had the authority to decide whether an applicant should be allowed to obtain permanent residence from within the United States. Adjustment of status has always been a privilege, not an absolute right.

What has changed is how closely USCIS officers must now review cases to decide whether an applicant deserves to benefit from that privilege. In the past, USCIS often approved adjustment cases with minimal scrutiny, and discretionary approval was frequently granted without requiring extensive evidence of positive factors (equities).Under the new guidance, officers are expected to conduct a more detailed review to determine whether an applicant should be permitted to complete the green card process in the United States rather than through consular processing abroad.

This does not mean that adjustment of status is no longer available. It simply means that applicants and their attorneys must now provide stronger evidence showing why the applicant deserves favorable discretion and why returning to their home country for consular processing may not be appropriate or realistic.

USCIS officers will consider many discretionary factors, including:

• Family ties in the United States
• Length of residence in the United States
• Language ability and assimilation to the American culture
• Employment history
• Criminal history, if any
• Medical or health concerns
• Immigration violations
• Community involvement
• Volunteer work or charitable contributions
• Payment of taxes and other financial responsibilities (mortgage, student loans, etc.)
• Evidence of good moral character
• Other positive or negative factors relevant to the case

Applicants should also be prepared to answer questions during their adjustment interview, including:

• Why they remained in the United States after their status expired
• Why they chose not to return to their home country
• Why they are seeking adjustment of status in the United States instead of consular processing abroad
• Why returning to their home country would create hardship or difficulties

Addressing these issues proactively and submitting strong supporting evidence will now be more important than ever.

For this reason, it is critical for applicants to consult with a qualified immigration attorney who can properly evaluate their case, determine whether adjustment of status is the best strategy, and help prepare the strongest possible application.

Our law firm plans to submit detailed legal briefs with adjustment applications explaining why the applicant qualifies for a favorable exercise of discretion and why consular processing may not be a viable option. There is also prior case law and existing immigration regulations that may support an applicant’s eligibility for adjustment of status that we plan to cite. However, there may be cases where we advise that the safer and more appropriate path is to pursue an immigrant visa through consular processing in the applicant’s home country.

The reality is that there is no longer a “one-size-fits-all” approach. Every case must now be evaluated individually. USCIS will likely weigh any immigration violations or failure to depart the United States against positive factors such as long-term residence, family ties, good moral character, employment history, and contributions to the community and economy.

As additional information becomes available regarding how USCIS applies this new guidance in practice, we will continue to provide updates.

If you would like to discuss how these developments may affect your specific case or evaluate your chances of success with an adjustment of status application, please contact our office at 847-763-8500 to schedule a consultation.