USCIS memo requiring consular processing for green cards is heading for litigation: adjustment of status for H-1Bs is also disrupted

The Trump administration’s latest immigration policy of recasting ‘adjustment of status’ as an ‘extraordinary’ discretionary benefit and pushing many green card applicants toward consular processing abroad is expected to trigger immediate litigation, according to immigration attorneys.The memo released on Friday night by the US Citizenship and Immigration Services (USCIS) states that green card applicants should generally pursue immigrant visas (green cards) through US consulates abroad instead of obtaining green cards from within the United States. It also directs its officers to treat adjustment of status as an ‘extraordinary form of relief’.“This will be challenged and soon,” said Kripa Upadhyay, partner at Buchalter, calling the policy “Another one in the long line of actions taken unilaterally in direct contravention of the Administrative Procedures Act (APA). Federal agencies cannot fundamentally change policy without going through proper notice-and-comment rulemaking.”Rekha Sharma-Crawford, immigration attorney, was even more blunt: “Expect litigation because, well, this is illegal.” She explained: The policy disregards the plain language of the statute and tries to cabin the adjustment of status as an extraordinary matter. It isn’t. US Congress recognised that individuals who have been inspected and admitted are eligible for adjustment. The Board of Immigration Appeals (BIA) has long recognised that in the case of immediate relatives, adjustment of status should be granted in the exercise of favourable discretion, absent aggravating factors. The same logic is applicable to employment-based categories, too, insofar as the law does not itself treat the ability to adjust status as an extraordinary process only given to a privileged few.Also read: US Green Card application - Here's full text of American immigration authority's memo on 'go home' rule“This is not about adjustment of status per se, this is an attack on legal immigration that drives people out of the country and traps them behind the consular non reviewability door,” added Sharma-Crawford.These words were echoed by several immigration attorneys. Ashwin Sharma, a Jacksonville-based immigration lawyer said, “The Trump administration is intentionally breaking a modern legal framework to satisfy a deeply backward political agenda: gutting legal immigration in the US. I fully expect federal courts to strike down this executive overreach under the APA because the Department of Homeland Security (DHS)/USCIS cannot unilaterally gut 70 years of lawful immigration policy and vaporize massive statutory benefits with a vindictive, six-page wish list written to appease the anti-immigration lobby.”Doug Rand, former official at the US Department of Homeland Security (DHS) states: In a typical year, the US approves over 1 million people to become lawful permanent residents (green card holders). Roughly half are applying from abroad (new arrivals or consular processing), the other half are already here and apply via adjustment of status. USCIS now nukes the process for many of the people in that second category: 6,00,000 green card applicants each year who are already in the United States (see table).The scale of potential disruption is substantial. According to the FY-2023 data, over 6 lakh immigrants obtained green cards through adjustment of status within the US, compared with about 5.6 lakh through consular processing abroad. Employment-based categories alone accounted for nearly 1,47 lakh adjustment approvals. “The purpose of this policy is exclusion. Remember that Trump has banned people from over 100 countries from returning to the US, so forcing them to go abroad for consular processing is no pathway at all. And even for those from favoured countries, green card decisions abroad are infamously subject to ‘the doctrine of consular non-reviewability’, which is a fancy way of saying that if a random consular officer denies your application, even if they're making a demonstrable mistake, there's no way to appeal the decision!” added Rand.Todd Schulte, president at FWD.us said, “The majority of people who are approved for green cards each year adjust their status from within the US, as provided under law since the 1950s. The Trump administration’s claim that this is a ‘return to the original intent of the law’ is plainly false. This process was expressly created by Congress and has been affirmed multiple times over decades. This is another abuse of power that they are trying to dictate through press release rather than going through the legally required process. The lack of clarity around who is impacted is already causing panic and confusion.”Also read: Immigration attorney Rahul Reddy explains what H-1B visa holders should do now“Forcing people, many who have already waited years, to leave the U.S. for processes that often take months and years will massively disrupt our legal immigration system; moreover, this administration seems intent to create more backlogs and delays by design. It will harm businesses who will lose critical workers for months or years and American families who will be separated from a spouse or parent indefinitely,” he added.Legal experts warned that the memo could severely disrupt pathways used by H-1B professionals to transit to a green card. With over 12.6 lakh Indians, including their dependants (spouses and children) waiting in the employment-based green card categories, the memo has sent ripples of anxiety across the Indian diaspora. This data, was released by The National Foundation for American Policy, based on the approved I-140 immigration petitions as of Nov 2023. This is the employer-sponsored immigrant petition that forms the backbone of most employment-based green card applications in the US, an adjustment of status from H-1B to green card follows later when the priority dates become current – which for Indians is a decades long wait.For Indian professionals already waiting decades in green card backlogs, attorneys said the memo threatens to destabilise nearly every assumption underlying employment-based immigration: from H-1B extensions and job portability to adjustment filing protections and family stability.Until now, Form I-485 (for adjustment of status) could be filed by an eligible H-1B holder, who was interviewed for the green card in the US itself. This kept families together and kept businesses running smoothly. While immigration attorneys largely concur that for all dual-intent visa categories such as H-1B or L-1 (intra company transfers) or K-1 (fiancé visas) there is an acknowledgement that adjustment of status is the expected route. But there appears to be a catch.“While the administration concedes in the memo that filing for a green card does not violate this dual intent, it immediately walks that statement back in a buried footnote. That specific footnote dictates that simply maintaining lawful status in a dual-intent non-immigrant category is no longer sufficient on its own to warrant a favourable exercise of discretion. The policy now is to require these frequently vetted professionals to affirmatively submit additional discretionary evidence to prove they deserve to stay in the US rather than being arbitrarily forced abroad to file their immigrant application and face a massive consular backlog,” explained Sharma.Also read: Waiting for Green Card? Leave US first, re-enter with an immigrant visaUpadhyay predicts increased scrutiny around issues such as ‘intent at entry’, ‘evidence of compliance’, and even ‘good moral character-type inquiries.Rajiv S. Khanna, managing attorney at Immigration.com, said the policy strikes at the heart of the decades-old bargain underpinning America’s employment-based immigration system.“The population most affected is the one that has followed every rule most scrupulously: H-1B workers who have been in the employment-based green card queue for years, sometimes decades, maintaining lawful status throughout, paying taxes, building careers, raising families in the US,” Khanna said.He noted that although the memo acknowledges dual intent, it still concludes that maintaining lawful H-1B status “is not, on its own, sufficient for a favourable discretionary outcome. “These workers now need to affirmatively prove that they deserve what Congress explicitly authorized them to pursue,” Khanna said.Khanna pointed out that the consular processing ‘alternative’ that the Trump administration offers deserves scrutiny on its own terms. H-1B visa stamping interview wait times at the Mumbai consulate currently exceed 200 days. The State Department has cut more than 1,300 civil service and foreign service positions since January 2025, and consular sections in India are processing more cases with fewer officers.Khanna said one of the least discussed implications is the possible conflict with AC21 — the American Competitiveness in the Twenty-First Century Act — which allows workers stuck in green card backlogs to change employers after their I-485 adjustment application has remained pending for 180 days.“That protection is a statutory right. It requires a filed I-485,” Khanna said. “The memo now invites officers to treat the act of filing that I-485 as a discretionary ‘act of grace.’”“The executive branch created the delay; Congress created statutory relief for the people trapped in it; and the executive branch’s pen now overrules the will of Congress,” he added.Khanna also linked the memo to long-standing H-1B extension protections. “The same travesty runs through the H-1B extension framework: beyond-six-year H-1B extensions exist because Congress recognized that many professionals, especially Indian nationals, would be waiting decades for their green cards. The implicit bargain sealed by Congress was that the pursuit of permanent residence was encouraged. This memo turns that bargain against the workers who relied on it.”Zach Kahler, USCIS spokesperson, said in the announcement that routing people through consular processing reduces the need to find and remove those who decide to slip into the shadows and remain in the US illegally after being denied residency.Khanna argues that there is no empirical basis for that claim as applied to the primary population this memo affects. H-1B workers and employment-based applicants who receive adverse decisions generally appeal, refile, or depart voluntarily. Characterizing them as a future enforcement problem, without data and without acknowledging their years of lawful status and contributions, reflects a bias that the law and the facts do not support.Also read: 'Massive, absurd' - Immigration experts, foreign-born founder react to new Green Card rule“My immediate advice to Indian nationals with pending I-485 cases: do not withdraw. Build an affirmative record now of your taxes, your contributions, your family ties, your professional standing. The Supreme Court's 2022 decision in Patel v. Garland stripped federal courts of jurisdiction to review most factual findings in adjustment cases. Whatever record you build at the USCIS level is effectively the only record that will ever matter. Prepare it carefully,” he emphasised.Sharma said the policy could inflict severe emotional and financial strain on families. “This new policy forces the spouses and children of American citizens to leave the country and wait for years in massive overseas consulate backlogs,” he said.“An American citizen marrying a foreign national on a temporary student visa must now inexplicably endure a heartbreaking and completely unnecessary years-long separation across oceans,” he added.Rand views that the biggest target of this memo are spouses of US citizens, especially those who are undocumented after overstaying a visa. “Under our immigration laws, these spouses do not need to leave the country to apply for a green card. But if the Trump administration forces them to apply from abroad, they'll likely be subject to a 10-year bar before they can re-enter.”Several immigration attorneys argued that the memo mischaracterized both statute and case law.Cyrus D Mehta, a New York based immigration attorney said that adjustment of status “has never been interpreted as an extraordinary form of relief” and pointed out that USCIS of “inventing a new standard to deprive noncitizens from getting green cards in the US.”He said the memo ignored landmark BIA’s decisions such as Matter of Cavazos and Matter of Ibrahim, which supported favourable discretion for applicants adjusting status through immediate relatives.Abhinav Tripathi, founder of Protego Law Group, said USCIS appeared to be selectively interpreting legal precedents to justify the policy shift. “The memo quotes Matter of Blas for the proposition that applicants need ‘unusual or outstanding equities’ to justify adjustment of status. But Blas was a fraud case,” Tripathi said. He pointed out that the same decision reaffirmed Matter of Arai, which held that “in the absence of adverse factors, adjustment will ordinarily be granted."“That is a very different framework from the one USCIS is now emphasising,” Tripathi said. According to him, the administration is attempting to invert the traditional standard. “The ‘unusual or outstanding equities’ language was historically used when an applicant had serious negative factors that needed to be overcome. It was not the ordinary standard for applicants with clean records,” he said.Tripathi went on to state that the Supreme Court cases cited by USCIS are also more nuanced than the memo suggests. Patel v. Garland primarily addressed limits on judicial review of discretionary immigration decisions. The “matter of grace” language explains why courts often cannot reweigh discretionary findings. It was not a holding that ordinary adjustment applicants must prove extraordinary equities.He said that while the memo does not explicitly order blanket denials, “people with no fraud, no criminal history, no immigration violations may now face a discretionary framework that increasingly treats adjustment itself as something extraordinary rather than routine.”