New Traps for Aliens Filing for a Green Card

By Attorneys Robert L. Reeves and Joseph I. Elias

The United States Citizenship and Immigration Services (USCIS) recently issued a policy memorandum binding to its officers regarding unlawful presence.  The memorandum is supposed to merely consolidate and clarify all previous memos on the subject.  Yet, the memo created a class of deportable immigrants who are in their final stage of the green card process.  In one fell swoop, a whole new class of adjustment of status applicants are categorically at risk of deportation.

Adjustment applicants are officially deemed to be in a period of stay authorized by the Department of Homeland Security (DHS).  Prior to the new memo, this was generally understood to mean that even if non-immigrant status lapsed, an adjustment applicant was “authorized to stay” and was not deportable while his adjustment application was in process.  

Based on this understanding, many adjustment applicants in H, L or E visa status chose not to renew their status.  Adjustment applicants could obtain work authorization separately, so, there was no apparent need to extend working visas.  Many adjustment applicants determined the thousands of dollars in immigration fees and legal costs needed for extending status were unnecessary, consequently, they elected not to renew their previous non-immigrant status. 

The new memo drastically changes this interpretation. The new policy now states that if an adjustment applicant does not timely renew his non-immigrant status, even if he is in a period of stay authorized by DHS, he becomes subject to deportation because he has remained in the US after the expiration of his non-immigrant status.  Based on this new guidance, all adjustment applicants that can renew, should renew their non-immigrant visa statuses before their expiration in order to avoid being found deportable.

For many adjustment applicants, this will be virtually impossible because of either a cap on their non-immigrant status, or inconsistencies with the status’ intent.  A cap limitation example is the L-1A status which is limited to a maximum of seven years.  If an adjustment applicant has already completed seven years in L-1A status, he cannot file an extension.  An example illustrating inconsistent intents is when one has filed an adjustment application while in B-2 visitor status.  The B-2 status does not allow one to have the intent to permanently immigrate to the US.  A person in this situation could not file a B-2 extension since he has already shown he intends to immigrate permanently by filing an adjustment application.

This new interpretation of the law has draconian consequences.  Immigration practitioners across the country have vehemently protested the new policy memorandum.  The voice of concern was so loud that the USCIS notified the American Immigration Lawyers Association (AILA) at the AILA national conference held in June that the memo is a compilation of current guidance, and is not meant to be a reinterpretation or change of policy.  Nevertheless, until the USCIS instructs its adjudicators otherwise, adjustment of status applicants that can renew their non-immigrant status must renew their status to avoid a ground of deportation.  Those who cannot renew status should determine if there is a viable non-immigrant status that they can switch to. 

This memo impacts intending immigrants, their families, employers and the communities in which they have legally resided in.  Additional financial and bureaucratic burdens are being imposed on those impacted.  The risk of not complying with the burdens can result in deportation.   The only certainty we have is that one’s obligation to remain in status does not end until one becomes a permanent resident.

The USCIS is turning the green card process into some sort of a sporting contest with severe consequences if you lose. We highly recommend you hire a good legal coach in order to avoid the numerous traps and come out as a winner.