Essentially they're trying to change the rules by aggressive re-interpretation of the existing legal framework, and not actually changing any laws or regulations.
I don't follow all of it, but it seems to be arguing that the "ordinary consular process", leaving the country and applying for a visa from abroad, is the long-established default, and that "adjustment of status", where your immigration/green card status changes while you're already in the US, is merely an extraordinary exception and "a matter of discretion and administrative grace." Even though applying for a green card while in-country (an "adjustment") seems like the only sane and reasonable process.
It feels goofy watching them marshal decades of prior case law to try to frame this as just a "reminder" rather than admitting this is a real change. (Since changing laws is harder I assume)
All the memo is saying is reminding USCIS officers that adjustment of status is an act of administrative grace and applicants aren’t entitled to have their status adjusted. That’s always been true.
Some stats I found online report that ~60% of greencards are granted to people already living the US. This memo makes it seem like that route will now be much harder. So while its true that the law as written has always been true, they're definitely pushing for a change that will result in past behaviors no longer being true.
Except it is completely contrary to how the immigration system has worked in the US for decades. It is absolutely standard for people who are already in the US on other types of visas to apply for Green Cards.
“Adjustment of status” is an option at the discretion of the administration (8 USC 1255(a)):
> The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence
Note the “may” and the “in his discretion.” Basically, if the government really likes you, it can change your status. But that doesn’t change the primary purpose of the H1 visa from a temporary worker program into a permanent residency program.
Where this falls apart is that the K-1 Fiance visa is also a non-immigrant visa, that through Adjustment of Statuses (based on your demonstration of a genuine and sincere relationship) becomes a green card pathway. All "may", "at their discretion", on a non-immigrant visa.
But then what is the purpose of the K-1 visa? To allow you a US citizen then perhaps, maybe, one day, be allowed to stay in the same country as your spouse? At the government's discretion, of course?
Under 8 USC 1255(d), the AG can’t adjust the status of someone here on a K visa: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... If you don’t get married, you have to leave.
What entitles alien spouses to petition for permanent residency is not the K1 visa, but section 1154: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... So, for example, the citizen could marry their fiancé in the fiance’s home country.[1] And they’d use 1154 to petition for permanent residency. The K1 visa just allows the marriage to happen in the U.S. but is unrelated to the ultimate basis for permanent residency.
[1] Our family friend did this. We set him up with the daughter of our next-door neighbor in Bangladesh. They had a wedding over the phone with him in the U.S. and her in Bangladesh. Then she came over on an 1154 petition.
40 years ago--we had no knowledge of each other's existence when she entered the US. Life put us in proximity, our hearts decided they wanted more proximity. Adjustment of status was granted. She's 20 feet from me as I write this.
1. You just quoted 8 USC 1255(a) because it's at the top of the USCIS memo without understanding it; or
2. This is just the most ChatGPT comment.
I say this because you clearly don't understand this stuff. From reading your comment history, you're a Trump supporter [1] and you seem to have done the most MGA Thing of being told what your position is and then looking for a justification.
8 USC 1255(a) is a carve-out that basically gives the AG authority to let people adjust. It doesn't go the other way and say the AG can withhold permission to adjust. The entire section details the requirements to adjust, detailing admissibility requirements.
So how did we get from the AG can allow someone to adjust to the AG can override the entire section that details adjustment requirements?
Also, you don't understand what "nonimmigrant" means in relation to your H1B comment. Yes, H1B is a nonimmigrant visa. That just means they're not a lawful permanent resident ("LPR"). It doesn't mean they can't adjust status.
It's a bit like taking the description fo a woman as "non-pregnant" and taking that to mean they're not capable and/or not allowed to get pregnant.
That’s exactly what “may” means. The AG “may” do it, but he doesn’t have to.
To make that clearer, the statute also says “at his discretion.” That means the AG can adjust or not at his choice. That’s what the word “discretion” means in a legal context: https://dictionary.justia.com/discretionary
> The entire section details the requirements to adjust, detailing admissibility requirements.
You need to read more carefully. The rest of the section describes conditions where the AG cannot adjust the status. They don’t require the AG to grant the status adjustment to anyone who meets the requirements.
For example, subsection (d) says: “The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title.”
So subsection (a) gives discretion to the AG to adjust status at the AG’s choice. Then other provisions say that he can’t adjust status under certain circumstances.
> Also, you don't understand what "nonimmigrant" means in relation to your H1B comment. Yes, H1B is a nonimmigrant visa. That just means they're not a lawful permanent resident ("LPR").
No, because there are also “immigrant” visas. Those visa holders also aren’t LPRs. So what’s the distinction between immigrant and non-immigrant visas in your reading? The difference is that immigrant visas are intended to be a pathway to a green card, while nonimmigrant visas are intended to be for temporary workers who will typically go home.
Note that subsection (H) also includes H2 visas for unskilled temporary workers. Those visa holders can request an adjustment of status too. But the expectation is that generally that will not be granted.
Incidentally, we don't have an attorney general at present, only an acting one (Trump's former personal lawyer), and I question the standing of an unconfirmed federal officer to alter existing rules, never mind to bypass the federal rulemaking process entirely.
I’m using a colloquialism to convey how much latitude the administration has under the wording of statue. It says that the “status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe…”
When the statute says an officer “may … in his discretion” do something, that’s Congress giving very broad latitude to the executive to make case by case determinations.
The word “discretion” has a special meaning under the APA. The APA says that courts can’t review agency actions that are “committed to agency discretion by law.” The Supreme Court has read that carve out narrowly (because otherwise I think you have serious due process problems). But Congress using the word “discretion” here at the very least conveys how much latitude Congress intended to give the administration with respect to adjustment of status.
So capital flooded to the US.
So we all have our own theories.
The real question remains "What's best for America right now ?"
Actually the opposite. There were severe restrictions to emigration. They didn’t want people leaving the Soviet Union (or the satellite states) and going to the West. The Berlin Wall for example. Things weren’t so rosy behind the Iron Curtain.
If you want to make that argument, you have to confront the fact that H1 is by its terms a “nonimmigrant” visa for people who are “temporarily” in the U.S. 8 USC 1101(a)(15)&(a)(15)(H). While adjustment of status was possible, it was never intended to be a de facto immigrant visa that typically leads to permanent residency.
Note the law does also have immigrant visas which are designed to lead to permanent residency, such as E1 visas: https://travel.state.gov/content/travel/en/us-visas/visa-inf...
> (h) Intention to abandon foreign residence > The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 1258 of this title to a classification as such a nonimmigrant before the alien's most recent departure from the United States.
What does the text in italics mean? It's there because having an intention to abandon your foreign residence makes you ineligible for a nonimmigrant visa, including H1B. All 1184(h) says is that a petition for permanent residency cannot by itself be used as "evidence of an intention to abandon a foreign residence" for purposes of renewing your H1 visa.
That's all "dual intent" means. It's a fiction where you can keep saying "I intend to go back home after my temporary work in the U.S."--which remains a fundamental requirement of H1B status--and the government can't point to a permanent residency petition as evidence that you are intending to stay in the U.S. permanently. The law doesn't give the H1B holder any right or expectation of being granted permanent status.
The law does have immigrant visas for people who can come here and say "I want to work here and seek permanent residency. I'm not intending to go back." H1B isn't like that.
you are, obviously, interpreting the law to fit your narrative:
""The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph"
All this means is that you, indeed, can be dual intent and apply for permanent residency while holding a H-1B, like generations of Americans have done before ourselves.
Like you, I tend to think this is a ham-handed move, but like one of the sibling comments, I also have to acknowledge that it’s common for other nations to require change-of-status applications happen outside the country. For example, Japan requires this for some (but not all!) visa modifications.
Also, I’ve seen otherwise reliable sources making unsupported claims about this (e.g. “Existing applicants will lose their ability to apply again if they leave the country”) that aren’t clear from the minuscule amount of information that has been released so far.
As usual with these debates, the content is far more heat than light.
Needing to leave to convert a normal working/spouse status to PR is not the norm anywhere.
Additionally, Japan has a very clear and straightforward process to convert HSP Visa (Highly skilled visa) to a permanent residency.
It can be done in 3years for most and to 1year for the high level candidatures (PhD profiles).
This is very far from the current H1B shitshow.
I mean, that's true as far as it goes, but HSP is one special visa amongst many, and they're not all so easy. Also, Japan is currently in the middle of its own dramatic restructuring of the immigration system related to HSP, including a number of new requirements that would drive critics of the US system to apoplexy (i.e. language fluency requirements).
Overall, the Japanese system looks a lot more conservative than the US one, though the sanity and consistency level is far higher.
H1B is only 36 years old. The Immigration Act of 1990 always meant it to be a temporary status, which is why it is so easily imperiled.
Part of the noise around this topic is that the administration just announced something vague with no detailed guidance, which leaves the door open for bad-faith interpretations by everyone.
The fact that it's "common in other countries" is entirely irrelevant to what the United States does.
It's not even clear it's common in other countries. Japan is notorious for being insular.
This is a garbage move by this administration that flies in the face of decades of precedents _in the United States_.
How is it “delusional” to interpret a law that’s plastered with the words “non immigrant” and “temporary” and say that maybe it shouldn’t be a de facto path to permanent residency?
In the case of a K-1, it is assumed you will transition from a temporary nonimmigrant status to a permanent status. [1] Requiring folks to move to the U.S., and then go back out of the country to get a green card, only to return again, is absurd. That absurd dance for both K1 and H1 w/dual intents is the reason the laws and guidance provided to agents changed starting in the 50's through the 90's. These changes in guidance to agents are nothing more than a thinly veiled attempt to suppress people coming to the U.S. lawfully, which is absurd and deeply anti-American.
[1] https://www.uscis.gov/family/family-of-us-citizens/visas-for...
People who come here on a K1 get permanent residency once they get married through a different statutory route: 8 USC 1154. But that has nothing to with the K1 itself. That route is available to anyone married to a US citizen, including illegal immigrants under certain conditions, or aliens who get married abroad. The K1 visa isn’t a stepping stone to permanent status. It’s just a convenience that allows people to have the wedding in the U.S. instead of the spouse’s home country.
Every time my Canadian work visa expired I had to drive over the border, enter the US, turn around and drive back to start the new one. The border guards call it “flag-poling” because you do a U turn around the flag pole.
When I went from work visa to permanent resident I had to do it, in January, in Alaska, at -44 degrees and nasty ice on the roads. That border required 30km of driving through no man’s land before I got into Alaska. I asked the Canadian as I was leaving if I could just u turn his building and come back right now, and he was very firm I had to enter the US, even if for just 20 seconds. Nasty drive, but all ok
Or, we can be honest, and acknowledge these actors have proven themselves to be irrational. What is happening is that an end-goal is desired, and then the trump administration is working backwards to make it happen.
The immigration act of 1999 very clearly created it as a temporary visa not a stepping stone to a green card. That's a modern invention.
Also, are those people not the exact demographic that so-called "anti illegal" Republicans should want? They're highly educated and desirable, not welfare queens right?
I will repeat my point. You have been lied to. The Republicans do not give even a single shit about what is legal and what is not. What they desire is less brown people, and then they work backwards to justify it. Any other interpretation is just not reasonable at this point, with the evidence we have been given.
They also were not called visas, but permits. Visa is for entering the country, permit is for staying.
Seems pretty brutal to me though.
They let me in, but had me sign something that I would leave within 30 days.
It also means that if you came here fleeing persecution that you might not be able to return.
As far as Canadian law goes, there are two factors at play in the parent's events;
* NAFTA work permits are applied for at the border, on entry; they operate differently from the 'normal' work permit streams.
* Permanent residence is conferred at the border, but the application process can happen either inside or outside the country depending on the stream. There are also limited 'inland' options which evidently have expanded (https://www.canada.ca/en/immigration-refugees-citizenship/se...) in recent years.
In neither case does Canada have a blanket rule that an applicant must leave the country during the whole of an extended application process, and even 'abroad' processes can often be carried out while an applicant is living in the country on other status. (It can get awkward if a consular interview is required, though.)
Unlike the US, Canada is generally comfortable with 'dual intent', where intent to apply for permanent residence through legal channels is not disqualifying for other sorts of statuses.
It is actually really bizarre that the USCIS would essentially take the applicant's word without any vetting before this memo.
It’s just how things are done.
This new policy is different than the "flag poling" you've described. The new guidance requires immigrants to return to their country of origin, then apply for the change in status, and wait in their country of origin while the change in status is being processed/considered which can take many years. If the status changed is approved, they can move back to the US.
Neil Gorsuch's mother had to resign in disgrace as the EPA administrator under Reagan in a case that ultimately became what was called "Chevron deference" [1]. Chevron deference meant that when Congress wrote ambiguous statutes, courts would defer to the interpretation of the agencies responsible for enforcing them. Almost 40 years of laws were written with this standard in mind. Critics claimed Congress should be explicit but they know this is bullshit. Congress simply doesn't have the bandwidth to pass a law every time an agency wants to change a regulation and they know it. This is all about deregulation so companies are free to poison the air and water without fear of prosecution or lawsuits. It would allow, for example, a Federal circuit judge in Amarillo, Texas to issue a nationawide injunction on pretty much anything where before Federal judges had to defer to agencies.
It has been Gorsuch's life mission to avenge his mother's humiliation. Overturning Chevron became a mission of the conservative movement and they finally succeeded in a case called Loper Bright [2]. As an aside, Gorsuch really should've recused himself from the case. A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead. So that's been the law of the land since Loper Bright. That creates a number of problems:
1. To change an agency rule now requires a complicated process unde rthe APA of proposing a rule change, getting public comment and generally following a statutory procedure. This administration that wanted Chevron overturned never does that. So under Chevron they probably could've done that. Now? Any memo like this can be challenged for failing to follow procedure. There have been cases where USCIS has had temporary injunctions imposed on them for this reason: the judges are saying USCIS is likely to lose; and
2. This memo is relying on a Supreme Court case that considered adjustment-of-status ("AoS") an act of "grace". Well, that precedent was set under Chevron. Chevron no longer applies. So which is it? Do you want Chevron deference or don't you? You can't have it both ways;
3. Millions of people have open cases under the previous rules and interpretations. Courts are likely to take a dim view of a retroactive rule change like this. New cases filed after this memo was released may not enjoy the same protections; and
4. There are people who cannot or should not leave the US to consular process. They may have incurred unlawful presence that will then get them a 3 or 10 year bar from returning. This bar may well apply if they have to consular process instead of do an AoS. Some people may not be able to leave (eg asylees). The wait time to get an interview at a local embassy or consulate varies wildly. In some cases it's already more than 12 months. If you add over a million current AoS cases to that, the wait times are going to explode. But the cruelty is the point.
Also, decisions by consular officials have very limited ability to be challenged in court. That's also the point.
This will be challenged in court. I think it will make it up to the Supreme Court as early as the next term and this court more than any probably in history bends over backwards to let the president do whatever he wants.
[1]: https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....
[2]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...
For example:
> Overturning Chevron became a mission of the conservative movement
Chevron’s biggest proponent was Justice Scalia!
> A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead. So that's been the law of the land since Loper Bright.
Executive agencies have always been governed by the APA. That’s why it’s called the “Administrative” Procedures Act.
> To change an agency rule now requires a complicated process unde rthe APA of proposing a rule change, getting public comment and generally following a statutory procedure
That’s been true since 1946. That was the whole point of the APA. Chevron itself arose out of an EPA rule making under the APA.
You’re completely mistaken about what Chevron was about. It was just about whether courts must defer to agency interpretations of ambiguous statutes, or whether they get to decide the interpretation themselves.
This feels like it might be the actual motivation of the Trump admin to do this change. The cruelty is indeed the point.
> The cruelty is indeed the point
What's the difference between this and just outright saying that enforcing the law is cruelty? After all, nobody enjoys being punished, even if it's for breaking the law.
I don't want people to be unlawfully present in my country. Enough people desired that same outcome that, through the democratic process, we have laws controlling immigration. There has to be consequences for breaking that law. It absolutely cannot be the case that anyone can break the law and then have it not matter on the grounds that to make it matter would be cruel. What even is the point of the rule of law?
> A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead.
Executive agencies were always governed by the Administrative Procedures Act. The law was created in 1946 for the purpose of governing executive agencies.
OP is completely wrong about what Chevron and Loper Bright were about. Agencies have always had to do rulemakings with notice and comment to promulgate regulations. Those rules obviously have to follow the statutory law.
Chevron was about what happens when an agency action is challenged in court and the statute is ambiguous. Chevron says the agency gets deference from the court in deciding what the law means. The court has to accept ghr agency’s interpretation as long as it’s reasonable.
Loper Bright says the court has to decide what the law means itself, just like it does for any other law.
More broadly, this isn’t even a “conservative” versus “liberal” issue. Scalia was the biggest champion of Chevron and Gorsuch authored Loper Bright. Both were/are Federalist Society guys. This is an internal disagreement among conservatives about whether agencies or courts have the last word on what statutes mean.
> The comment is misinformation. For example:
>> A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead.
> Executive agencies were always governed by the Administrative Procedures Act. The law was created in 1934 for the purpose of governing executive agencies.
So this seemed like the most ChatGPT comment, particularly because it made factual errors (eg APA was 1946 not 1934) but, hey, at least you corrected it. Maybe it was run through ChatGPT after the fact? I found this [1]:
> The U.S. doesn’t have a real statutory pathway to permanent residency for skilled immigrants. The current H1B to Green Card pipeline is built on a legal fiction papered over a visa program that was the word “non-immigrant intent” written all over the statute.
> Gemini gets this correct: “The H-1B visa is a nonimmigrant classification that allows U.S. employers to temporarily employ foreign nationals in ‘specialty occupations’ that require highly specialized knowledge and at least a bachelor's degree.”
Gemini, huh?
So back to the merits. Let me quote the actual decision [2]:
> Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled
This was what "Chevron deference" actually was: presumptive validity of agency interpretations vs what we have under Loper Bright where the APA is the only way of changing agency interpretations (other than Congress passing laws, of course). So, under Chevron, the USCIS could issue this memo and courts would've had to have largely deferred to the agency interpretation. Now they don't have that defense.
Or, to put it yet another way, it's what I said.
You should probably disclose your politics here. I'll use as an example this George Floyd comment [3].
[1]: https://news.ycombinator.com/item?id=48244638
[2]: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
Bush W. and his father's single term.
Biden and his family's troubles with the federal government.
Musk and gestures broadly at South Africa
Trump
I'm sure the list goes on.
