USCIS Policy Memorandum "U.S. Citizenship and Immigration Services Will Grant ‘Adjustment of Status’ Only in Extraordinary Circumstances"

[S2N 712]

16 minutes ago, RamonGomez said:

When my wife adjusted via a B2 a long time ago, we hired a high-powered expensive local attorney, she knew most of the ISOs in the office and knew a lot of behind-the-scenes stuff. She told us that VWP/B2 visa adjustments were rarely scrutinized because the vast overwhelming majority were legit couples. Yes, some people used it as a shortcut. Others married at day 179 when it was time to start packing. Unexpected pregnancy was another one. It was almost impossible to prove "intent" and no USCIS officer was interested in going through the lengthy paperwork denying a legitimate couple when there were actual criminals, imposters, sham marriages, etc.

Also immigrant intent is (currently) not a legally valid reason to deny marriage-based AOS on its own without other negative factors per BIA precedent.
 

USCIS wouldn’t just have to prove intent, they’d have to prove misrepresentation as well, which if you’re from a VWP country is fairly hard (my husband is waved through at mobile passport control without questions every time, as an example.)

 

I’m curious how it will shake out when it inevitably gets to BIA. They’ve replaced a lot of the BIA judges, so I’m sure it will be upheld, but the controlling precedent is that granting marriage based AOS as a positive use of discretion is presumed even with immigrant intent. The policy memo apparently takes the position that USCIS can interpret statue in a way that conflicts with BIA.

Edited 2 hours ago by S2N

[RamonGomez 279]

1 minute ago, S2N said:

Also immigrant intent is (currently) not a legally valid reason to deny marriage-based AOS on its own without other negative factors per BIA precedent.
 

USCIS wouldn’t just have to prove intent, they’d have to prove misrepresentation as well, which if you’re from a VWP country is fairly hard (my husband is waved through at mobile passport control without questions every time, as an example.)

 

I’m curious how it will shake out when it inevitably gets to BIA. They’ve replaced a lot of the BIA judges, so I’m sure it will be upheld, but the controlling precedent is that granting marriage based AOS as a positive use of discretion is presumed even with immigrant intent. The policy memo apparently takes the position that USCIS can interpret statue in a way that conflicts with BIA.

 

Even on a B2 visa - my wife had one before we met. How could she have lied about the purpose of getting it? She was asked exactly two questions at Seattle CBP which was (1) how long was she staying and (2) did she have any fruits or meat or whatever in her bags.

 

My guess is that this is more of a deterrent. It's already gotten a ton of publicity and a lot of immediate panic. Even if it quietly gets reverted later on, it's a clear "shots fired" warning for future B2/F1 AOS applicants.

 

[yuna628 10,002]

I remember the hard time CBP gave my husband on his first visit here. But from some miracle he passed the test and they let him in, and every visit those officers seemed to remember him ("what took you guys so long to get married?" teasing question when he came on his K1). We were just friends when he came to visit me back then, but when he hugged me that day I knew without a doubt that this was the person I was going to spend the rest of my life with. Thankfully he felt the same way. Despite how hard it was to say goodbye, he still went home every time. That was because we had a long term plan of saving money, jobs, and he was putting himself through university. He certainly never intended to stay here, and never lied to any officer, but circumstances do change for some couples for legit reasons, so I understand why people do adjust. The law seems to allow for it, especially in proving intent. But I don't see CBP viewing visiting couples with less suspicion if these changes come to pass, because I know from personal experience what happens in the UK where these more restrictive policies are in place and the consequences. It has not made things easier or fairer for visitors and I don't believe it will happen here.

[S2N 712]

The relevant precedent is:

 

 Notwithstanding evidence establishing preconceived intent adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative

 

Matter of Cavazos

 

Despite what the memo says, the legal presumption since 1980 has been to grant spousal AOS. Cavazos biggest impact was to make misrepresentation and not preconceived intent alone the bar, but it did also establish the presumption of a positive use of discretion to grant green cards to family members via AOS.

 

This memo seems to not interpret the law that way.

[Scandi 4,366]

Sounds like a great "change" to me, wish they would've done this year and years ago. Yes this will add extra work for embassies when people can no longer skip that stage of the process (why they were allowed to before is beyond me), but it'll also likely mean less work for USCIS employees, so hopefully cases go quicker within the US instead. 

[S2N 712]

5 minutes ago, Scandi said:

Sounds like a great "change" to me, wish they would've done this year and years ago. Yes this will add extra work for embassies when people can no longer skip that stage of the process (why they were allowed to before is beyond me), but it'll also likely mean less work for USCIS employees, so hopefully cases go quicker within the US instead. 

I don’t necessarily disagree in theory but I think the practical considerations weren’t thought out here. Not even talking about the consulates, this has the potential to overwhelm NVC, which currently takes less than a month.

 

My personal view is that this would make sense with some statutory changes and additional funding  for DOS modernization, but on its own it could have negative systemic impacts.

 

 

Edited 1 hour ago by S2N

[Ieeeeeees 39]

So how would this work for student visas? I'm engaged to someone who's here studying and working in an F1 visa. When we marry next month, would he have to cancel his F1, go to his home country and then adjust status?

[S2N 712]

4 minutes ago, Ieeeeeees said:

So how would this work for student visas? I'm engaged to someone who's here studying and working in an F1 visa. When we marry next month, would he have to cancel his F1, go to his home country and then adjust status?

You’re still allowed to apply. The memo calls on USCIS to be stricter in its adjudication of AOS for student visas and sets a presumption they return home. That’s in conflict with the precedent I cited above, which presumes positive use of discretion in family AOS cases. The memo also does not forbid anyone from requesting AOS.

 

The only way we’ll find out what actually happens is seeing the results of adjudications.

 

If he returned to his home country, he wouldn’t adjust status. He’d get an immigrant visa.

Edited 1 hour ago by S2N

[TBoneTX 49,810]

53 minutes ago, Ieeeeeees said:

So how would this work for student visas? I'm engaged to someone who's here studying and working in an F1 visa. When we marry next month, would he have to cancel his F1, go to his home country and then adjust status?

This was the specific question that I wondered about.

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Has anyone looked for AILA discussion yet?

We should probably invite pushbrk to weigh in.

[Bugs 455]

4 hours ago, Edward and Jaycel said:

 

I get the skepticism however a Policy Memo cannot rewrite the law and Section 214(d)(1) of the INA [8 U.S.C. 1184(d)(1)] explicitly mandates Adjustment of Status (AOS) as the intended and legally required route to a Green Card for a K-1 visa holder who fulfills the marriage requirement. 

Does it mandate that this legally required route take place in the US as opposed to a consulate abroad?

 

I hope you’re right, but I’ll be skeptical on this until it is clarified in court, which it will undoubtedly be.

 

These kind of things are never settled the day of anyways - the court usually has the final say.