The latest episode of the Center for Immigration Studies podcast examines a recent U.S. Citizenship and Immigration Services (USCIS) memo emphasizing that adjustment of status - the process allowing certain aliens, either temporary visa holders or unlawfully present, who are eligible for permanent residence to obtain it without leaving the United States - is a discretionary benefit and not a guaranteed alternative to consular processing abroad.

The discussion between Senior Legal Fellow George Fishman and Director of Policy Studies Jessica Vaughan is accompanied by a new report and a policy blog on the subject.

Among the key findings:

• Congress created adjustment of status under section 245 of the new Immigration and Nationality Act in 1952 largely to eliminate the need for temporary visa holders already in the United States to travel outside the U.S. for immigrant visa processing to permanent status.
• In FY2023, which is the most recent year for which statistics on adjustment of status admissions are available, the number of adjustments was 608,260 out of 1,172,910 total immigrant admissions, or 52 percent. Of these adjustments, by far the largest share were in the category of Immediate Relatives (315,830). In contrast, in 2023 only 146,880 people adjusted in all the employment categories combined, although this represented 75 percent of all employment LPR admissions.
• The policy change is expected to have its greatest impact on certain family-based applicants, including some who overstayed visas, violated the terms of admission, or entered illegally and received parole.
• While USCIS has broad discretion in adjustment decisions, courts have held that such discretion is not unlimited and may be reviewed for abuse of discretion.
• Existing legal precedent does not clearly support treating the mere act of seeking adjustment of status as a negative factor weighing against an applicant.
• USCIS has indicated that it may exercise discretion and offer some applicants the opportunity to adjust if it is in the national interest, such as in the case of applicants with meaningful employment or for humanitarian considerations.

Fishman's report concludes that the legal significance of the directive will depend on how USCIS implements it in practice. If denial rates rise substantially or applications are denied absent meaningful adverse factors, litigation challenging those decisions is likely to follow (if federal courts allow legal challenges to adjustment denials outside of removal proceedings).Vaughan argues that the policy could strengthen the integrity of the immigration system as overstayers and parolees will no longer apply for fear of being caught for extended unlawful presence.

Host

Mark Krikorian is the Executive Director of the Center for Immigration Studies.

Guests

Jessica Vaughan is the Director of Policy Studies at the Center for Immigration Studies.

George Fishman is a Senior Legal Fellow at the Center for Immigration Studies.

Links

USCIS Upends the Status Quo for Adjustment of Status

USCIS Blocks Green Card Shortcut for Overstayers and Parolees

Intro Montage

Voices in the opening montage:

• Sen. Barack Obama at a 2005 press conference.
• Sen. John McCain in a 2010 election ad.
• President Lyndon Johnson, upon signing the 1965 Immigration Act.
• Booker T. Washington, reading in 1908 from his 1895 Atlanta Exposition speech.
• Laraine Newman as a "Conehead" on SNL in 1977.
• Hillary Clinton in a 2003 radio interview.
• Cesar Chavez in a 1974 interview.
• House Speaker Nancy Pelosi speaking to reporters in 2019.
• Prof. George Borjas in a 2016 C-SPAN appearance.
• Sen. Jeff Sessions in 2008 comments on the Senate floor.
• Candidate Trump in 2015 campaign speech.
• Charlton Heston in "Planet of the Apes".