Does The New Green Card Policy Violate the APA?
As the debate over immigration and its structure in the US continues, more controversy has sparked over the recent changes to the adjustment-of-status process for Green Card applicants by the Trump administration. In May 2026, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum redefining adjustment of status as an “extraordinary discretionary. Many immigrants who are lawfully present in the United States may now have to leave the United States and apply for permanent residency through consular processing abroad. Critics say the policy essentially rewrites decades of immigration practice without congressional approval or formal rulemaking. The key legal question is whether USCIS violated the Administrative Procedure Act (APA) by effectuating a substantive change in policy without notice-and-comment rulemaking. The administration maintains that the memo merely clarifies existing discretionary authority under immigration law, but opponents are likely to argue that the policy is a binding legislative rule and thus impermissible under the APA.
The APA, enacted in 1946, provides procedural safeguards for federal administrative agencies promulgating or amending rules. 5 U.S.C. § 553. Agencies generally must publish proposed rules in the Federal Register, give the public notice and opportunity to comment, and provide a reasoned explanation before making substantive regulatory changes. Courts distinguish between “legislative rules,” which establish new rights or duties, and thus must be promulgated through notice-and-comment procedures, and “interpretive rules” or policy statements, which only explain existing law and are not subject to those requirements. The legal challenge to the USCIS memo hinges on whether the new policy is simply an interpretation of existing immigration statutes or whether it establishes a new operating system that significantly alters immigrant rights and expectations.
For many years, many eligible immigrants who were already living in the United States were able to petition for lawful permanent residency without having to leave the country, thanks to adjustment of status under § 245 of the Immigration and Nationality Act (INA). In the past, USCIS handled status adjustment as a standard administrative procedure as long as legislative eligibility conditions were met, despite the fact that it has always been technically discretionary. By directing officials to consider status adjustment as "extraordinary relief" and promoting consular processing as the default route instead, the May 2026 memorandum significantly changed that notion. Scholars and immigration lawyers have contended that this is not merely a clarification of discretion but rather a significant shift from long-standing agency practice.
The policy's most compelling APA objection is that it is a substantive rule change that was made without following the notice-and-comment process. Rather than depending only on the agency's name, courts often consider whether an agency action has binding practical repercussions. For instance, the D.C. Circuit ruled in Appalachian Power Co. v. EPA that an agency advice document that essentially placed required standards on regulated parties may nevertheless be considered a legislative regulation. In a similar vein, opponents can contend that the USCIS memo modifies adjudication standards across the country by instructing officers to handle in-country Green Card applications with increased suspicion and by finding new "negative discretionary factors" that were not previously highlighted in practice.
Opponents may also claim that the policy violates APA Section 706(2)(A) because it is arbitrary and capricious. When breaking from previous policy, agencies are required by the Supreme Court's ruling in Motor Vehicle Manufacturers Association v. State Farm to give a justification and take reliance interests established by previous practices into account. Many immigrants built their plans for long-term residency, work, education, and family ties on the assumption that status adjustment would still be widely accessible within the United States. Arguably, USCIS failed to sufficiently take into account the disruptive effects of the policy by abruptly redefining adjustment as exceptional relief without providing a thorough justification or transitional protections. Employers, mixed-status families, and visa holders are reportedly experiencing a great deal of uncertainty and anxiety.
However, the government has a number of rebuttals. First, USCIS will probably contend that the memo merely restates the authority already granted by Congress and that status adjustment has always been discretionary under the INA. The government may argue that no new rights or obligations were established because § 245 expressly employs discretionary wording. According to this theory, the memo is immune from APA notice-and-comment obligations since it is an interpretive rule or broad policy statement. The program does not, in theory, change statutory eligibility requirements or repeal status adjustment, according to a number of immigration law analysts. Rather, it modifies the way police use their discretion when making decisions.
The Supreme Court's decision that restricts judicial review of agency advice materials may likewise be relied upon by the administration. Courts have been increasingly skeptical of extensive judicial meddling in the discretion of immigration enforcement in recent years. The government may contend that the letter only offers officers internal direction rather than legally binding instructions and that immigration adjudication inevitably demands personalized discretionary balancing. The administration will probably argue that the memo comes under the APA's exemption for interpretive guidance because it was released as an internal policy document rather than a formal rule.
However, critics can counter that the memo's practical implications are more important than its official title. Even if USCIS refers to the policy as "guidance," courts frequently consider whether agency employees actually have the authority to ignore it. The memo may serve as a legally binding regulation if judges routinely reject applications for adjustment of status in the absence of exceptional circumstances. The government's stance may also be complicated by the Supreme Court's current mistrust of broad administrative authority. The Court has been restricting agencies' power to change significant policy areas without explicit congressional approval in recent years. Transforming a decades-old immigration conduit into an "extraordinary" type of relief, according to critics, amounts to a significant policy change that calls for formal rulemaking procedures or congressional approval.
A larger constitutional conflict over the separation of powers in immigration law is reflected in the discussion around the APA. Although the executive branch has extensive ability to implement immigration policy, Congress established status adjustment through statute. How far executive agencies can redefine statutory programs by administrative guidance rather than legislative action is the main constitutional concern. Future administrations may have considerable latitude to change immigration policy through internal memoranda alone if courts uphold the USCIS memorandum. On the other hand, if courts overturn the policy under the APA, the ruling might improve judicial scrutiny of government agencies and reinforce procedural restrictions on executive power.
Ultimately, the new Green Card policy violates the APA since it seems to impose a large substantive change without first going through notice-and-comment rulemaking. The policy's practical implications point to a significant shift from decades of immigration practice, despite USCIS's insistence that the memorandum only defines existing discretionary authority. Courts considering the matter will probably concentrate on whether the memo actually maintains officer discretion or if it establishes a legally binding new framework for deciding applications for modification of status. The case surrounding the program may turn out to be one of the most significant administrative law conflicts in contemporary immigration policy, given its broad impact on immigrants, employers, and families nationwide.
Bibliography
“‘The Rug Pulled Out From Everyone’: The Chaos of Trump’s New Green Card Rules.” The Guardian, 29 May 2026.
“US Green Card Applicants Will Now Have to Return to Home Countries to Apply, DHS Says.” The Guardian, 22 May 2026.
“USCIS Announces Change in Adjustment of Status Policy for Green Card Applications.” Association of American Medical Colleges, 29 May 2026.
“New USCIS Policy Memorandum Addresses Adjustment of Status Adjudications.” Greenberg Traurig LLP, 27 May 2026.
“USCIS Memo PM-602-0199 Explained: What the New Adjustment of Status Policy Means for Your Green Card.” Okanlaw, 26 May 2026.
“USCIS New Green Card Policy 2026: What the Adjustment of Status Memo Actually Means for Your Case.” US Civics Practice, 28 May 2026.
Appalachian Power Co. v. EPA, 208 F.3d 1015 (D.C. Cir. 2000).
Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).
Administrative Procedure Act, 5 U.S.C. § 553.
Immigration and Nationality Act, 8 U.S.C. § 1255.