The New USCIS Memorandum and the Future of Immigration
Since 1965, the United States has had the most welcoming immigration law of any other country in the world. From work visas, to student visas to political asylum and green cards, we have made the often long process of getting temporary or permanent resident status in the U.S. as achievable as possible. But since the beginning of the Trump Administration, there have been obvious difficulties in preserving the immigration law that has helped our country flourish for over half a century. Just last month, on May 22nd, the United States Citizenship and Immigration Services (USCIS) released a new policy memo, drastically altering the process of acquiring a green card. “Adjustment of Status”, which used to be the norm for green card applicants, might now be a privilege for the educated and wealthy. As this is very recent, any lawsuits are in their early stages, and we can only predict the arguments they will use to challenge the extreme memorandum. One important case to set the precedent for the adjustment of status was Matter of Arai, which decided the current federal law and interpretations. Furthermore, the memo may violate the Administrative Procedure Act (APA) for changing substantive rules without notice, and the Separation of Powers doctrine, which gives only Congress the power to make laws on immigration. Also, proof of the "irreparable harm” that this policy will bring to current and future green card applicants will almost certainly be litigated.
On June 27 1952, the Immigration and Nationality Act (INA) was passed through the United States Congress despite a veto by President Truman. Essentially, it set the requirements for becoming a U.S. citizen, receiving a visa, and acquiring a green card. Many discriminatory and archaic details were altered by the 1965, 1986, and 1990 acts, but this is the long-standing
A framework for immigration law. Before the recent changes, adjustment of status was open to spouses of U.S. citizens, holders of work and student visas, as well as refugees and political asylum seekers. If they already had a visa or some other document giving them a temporary stay and showing that they were in the United States legally, they could apply for a green card right in the state where they were residing. However, if an individual outside of the United States wanted to have permanent residence, but they didn’t have a visa that allowed them to be in the United States to apply, they could request an immigrant visa at a U.S. consulate in their country, giving them a temporary stay to apply for one. With the May 22nd USCIS policy memo, one can only follow the second method of getting a green card. Even if a person is a work visa holder, they still have to leave the country to get an immigrant visa. The USCIS notes they believe this to be the original intent of the INA, and they are closing a “loophole” (adjustment of status). World Relief, a humanitarian and refugee resettlement organization, recognizes that if a non-citizen family member is told that they must return to their country to process an immigrant visa, this will cause “indefinite separation of families,” since, as of recently, 75 U.S. consulates/embassies no longer process immigrant visas.
The Matter of Arai will most likely be the plaintiff’s defence in future lawsuits, as it relates to the issue of "extraordinary circumstances" and how immigration officers can decide who qualifies for adjustment of status. An immigrant from Chile had overstayed his visa and departure date, but requested to adjust his status to work as a specialty cook in Japanese cuisine (he had a labor certification as well). He met the requirements; however, he started working his trainee job before the government had processed his application; this was adjudicated as a negative factor, and for this reason, he was denied. When this was taken to the Board of Immigration Appeals (BIA), they overturned his denial. They noted that there were no adverse
factors because the man’s work was “crucial to his labor certification”. This case set the “Arai Standard” for adjustment of status. Additionally, it gave people “equities”, which were family ties, hardship, and length of residence; these would be considered when status was being adjusted, now that Matter of Arai set the precedent. Apart from this, the Administrative Procedure Act (APA) asserts that changes that will affect the country (procedural changes such as this one) cannot be made without being put up for public debate. Some requirements of the act are publishing notices of the proposed regulation (for the public to comment), which includes a warning 30 days before the effective date. Changes such as these cannot be made without the consent of Congress, according to the separation of powers doctrine, as it solely has the power to write immigration law. Finally, with proof of "irreparable harm”, an injunction could be obtained by the plaintiff. This could involve harm due to the separation of families, as well as nationwide economic harm through the loss of workers (H-1B visa holders).
This policy memo seems counterproductive. Why should we make roughly 3.6 million visa holders and 2.9 million political asylum seekers risk returning to countries of origin they worked so hard to leave, just to be permanent residents in the United States? 75 countries with U.S. consulates won’t even process their visa, so what happens then? The USCIS mentioned in an emailed statement to the Associated Press that any green card applicants who can provide an "economic benefit" or "national interest" might not have to make the travel, while others must. This makes it clear that they are not doing it to correct the process of receiving green cards, but for national benefit. This memorandum contains huge changes and impacts a large population of the U.S., which is why it is a violation under the APA that they put it in place without the 30-day warning period. Without giving the public time to critique it, they have left 1 million green card applicants in “limbo” as they try to ascertain whether they must
leave the country and restart the process. Not to mention that their memo is defective, considering that there is no longer immigrant visa processing in 75 countries. Furthermore, it can be argued that this “policy memorandum” is too destructive to be a small change in regulation. Making adjustment of status impermissible except under "extraordinary circumstances" is altering federal law, which they just did without even giving 30 days before putting it into effect. This is an obvious corruption of power, and nothing can be done about it until proper lawsuits can be filed.
To sum up, much can be said about the threat this poses to immigration law. The hope is that this memo can be prevented before it does any irreversible damage. One unmentioned statistic thus far is how this will affect the number of green card applicants in the future. Fear of losing their place in the United States, many temporary residents might just continue to renew their visas. This is not a desirable outcome. Though individuals can continue to live on a work or student visa, they have no real stability or political rights. Without a green card, it becomes almost impossible to become a citizen. Without our simple green card process, we will have fewer and fewer immigrants being naturalized, and less and less voting diversity. Whether the USCIS is doing this on purpose is not completely clear. What is clear is that this memo signifies how isolated the U.S. is becoming. What was once a hospitable, diverse community made prosperous by the American dream of upward mobility, now no longer welcomes the poor and unskilled.
Bibliography
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U.S. Citizenship and Immigration Services. 2019. “Immigration and Nationality Act.” U.S. Citizenship and Immigration Services. July 10, 2019.
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