A new USCIS memo suggesting that Green Card applicants may have to wait outside the United States has sent shockwaves among legal immigrants, especially Indians stuck in long backlogs.
Nearly 1.2 million legal immigrants are reportedly waiting for years to become permanent residents. Immigration experts are now seeking more clarity on how USCIS plans to implement the new guidance.
Many also believe the policy could face legal challenges, as critics argue it goes against existing law.
Indian-origin immigration attorney Rahul Reddy explained that the law itself has not changed. According to him, what has changed is the way Green Card applications may now be judged.
What USCIS Says
USCIS says many people enter the US on temporary visas and later apply to become permanent residents through adjustment of status. While waiting, they continue to live in the US.
The new guidance says this practice should generally stop. According to the memo, a person seeking permanent residency should normally return to their home country and apply for an immigrant visa through a US consulate.
What Has Changed
For decades, legal visa holders who maintained proper status in the US were allowed to apply for a Green Card through adjustment of status.
Reddy explained that the long-standing understanding was simple: if a person followed the rules, maintained legal status, got the I-140 approved, and waited until the priority date became current, the Green Card was almost certain once the applicant qualified.
Earlier, the officer’s main question was: “Does this person qualify?” If the answer was yes, approval usually followed.
But that understanding is now under question.
Reddy said the new memo reminds officers that approving a Green Card from inside the US is considered a matter of discretion, not an automatic right. This means an officer may deny an application even if the applicant technically qualifies.
He said the memo not only reminds officers of this power, but also encourages them to use it more actively.
Why H-1B Workers Are Worried
The most worrying part, according to Reddy, is how the memo views people on work visas such as H-1B, L-1 and O-1.
The government’s position, as reflected in the memo, appears to be that people who enter the US on temporary work visas are generally expected to return home at some stage, not remain permanently.
Reddy said the memo treats staying in the US to get a Green Card, instead of going back to the home country and applying through a US consulate, as a negative factor.
Though the memo acknowledges that H-1B and L-1 visa holders are allowed to have dual intent, meaning they can temporarily work in the US while also seeking permanent residency, it says that dual intent alone may not be enough for approval.
What Should H-1B Workers Do?
Reddy advised those who have already filed Green Card applications to consult their immigration lawyers and strengthen their cases before USCIS raises questions.
For those who are planning to file, the situation is more complicated. They may have to consider the risk that USCIS could ask them to return to their home country and apply through consular processing, which is often slower and riskier.
Does I-140 Approval Mean One Must Leave The US?
There are still many unanswered questions.
Some experts believe the memo mainly applies to the adjustment of status stage, which begins when a person’s priority date becomes current and they are ready to file Form I-485.
That means people who have only filed or received approval for I-140, which is a petition for a Green Card, may not immediately be required to leave the US.
This is especially important for Indians and Chinese applicants, whose priority dates often take many years to become current because of massive backlogs.
As a result, the immediate impact may be limited for many Indian applicants who are still far away from filing I-485. However, the USCIS memo does not clearly explain these details.
For now, the new guidance has created major uncertainty among legal immigrants who have lived and worked in the US for years while waiting for their Green Cards.
