The effect of this policy memo is yet to be seen. Immigration officers will continue to decide on a case-by-case basis how to exercise their discretionary authority when processing Adjustment of Status cases. Foreign nationals seeking Adjustment of Status continue to bear the burden of demonstrating why a favorable exercise of discretion is warranted.
The policy memo instructs officers that, where consular processing is available based on the immigrant category under which the foreign national seeks permanent residence, they should consider the longstanding view of the courts and the Board of Immigration Appeals that Adjustment of Status from within the United States is an extraordinary form of discretionary relief and an act of administrative grace, rather than a substitute for the regular immigrant visa process through a U.S. consulate or embassy abroad.
At the same time, the memo reminds officers that they must consider all relevant factors and information under the totality of the circumstances when exercising discretion. As a result, Adjustment of Status determinations will continue to be made on an individualized, case-by-case basis.
As USCIS begins applying this guidance in adjudications, stakeholders should monitor future decisions and agency communications for indications of how the policy will be implemented in practice.
Resources:
This update is provided for general informational purposes only and does not constitute legal advice.
If you require specific advice and consultation, please call us at 508-790-1181.