USCIS May Force Foreign Workers to Return Home to Apply for Green Cards
What the New USCIS Policy Could Mean for Workers and their Employers
Many foreign nationals currently working in the United States on a temporary visa must now return home to apply for a permanent resident card, better known as a green card, according to the U.S. Citizenship and Immigration Services.
The new green card process, announced by USCIS in a recent memo, means that most foreign national workers will have to live abroad for month or years before they can return to the United States as permanent residents, disrupting their lives and placing employers in jeopardy of having to fill positions until they return. Although USCIS has subsequently stated that this policy will not apply to all applicants, much is still unknown about the recently implemented procedure that applies with limited exceptions.
What Has Changed?
Until now, foreign nationals with temporary work visas typically applied while in the U.S. to adjust their status to a permanent resident by filing a Form I-485 with USCIS. This allowed foreign nationals to continue working while USCIS determined whether they were eligible for a green card.
USCIS has now severely limited the circumstances when a foreign national may stay in the U.S. while adjusting status. Foreign nationals are now expected to return home or to another country abroad to adjust status, unless they can show they are providing an “economic benefit” or “serving the national interest.” Unfortunately, USCIS has not provided any guidance on what characteristics meet those qualifications.
According to USCIS, this change complies with Congress’s original intent on how foreign nationals should apply for green cards, adding that “with limited exceptions, the statutory scheme suggests that Congress expects aliens paroled into the United States or admitted into the United States as nonimmigrants to depart rather than pursue adjustment of status” here.
What Does This Mean?
Generally, this language means that USCIS believes the adjustment of status process in the U.S. should be used less often than it currently is.
USCIS has created a new limited standard for determining when foreign nationals can apply to adjust status in the U.S. Although much is still unknown, the Department of Homeland Security spoke at a press conference following the release of the memo, clarifying that USCIS’s new “limited exception” policy will be applied on a “case-by-case basis,” not as a blanket policy for all applicants.
This may indicate that USCIS’s policy will only apply to certain, more limited cases than USCIS’s memo initially indicated. However, it is still unclear how USCIS will make a “case-by-case basis” determination on which foreign nationals fall into the “limited exception” policy.
What Now?
It is important to be aware of all policies and procedures currently affecting immigration.
Foreign nationals who have already submitted their Form I-485 to adjust status to permanent residence should not withdraw their application or leave the United States without the advice of an immigration attorney, as the full scope of this policy is yet to be seen. Withdrawing an application or leaving the country may result in the application being abandoned and require the foreign national to start the entire process again.
Foreign nationals seeking to adjust status may want to consider the traditional path of filing a Form I-485 with documentaries sharing how their continued presence in the United States provides an economic benefit and is in the nation’s interest.
Rick Hepp is a Partner in the Labor & Employment Department and Specialty Lead of the Firm’s Business Immigration Group. He can be reached at 216-831-0042, extension 604 or rhepp@meyersroman.com.
Disclaimer: Please note that this Legal Update and the information contained herein do not, and are not intended to, constitute legal advice or legal representation or create (and is not a solicitation to create) an attorney-client relationship; instead, all of the information, content, and materials contained in this publication are for general informational purposes only and may not reflect current legal developments. You should not act upon any such information, content or materials contained in this publication without first seeking qualified legal counsel.
