The new green card rule that applicants cannot wait for their green cards in the US and must return to their country of origin has come as a blow, as 1.2 million legal immigrants have been waiting years to become permanent residents. Experts are waiting for more clarity on how USCIS will implement it, while many said the new rule will be challenged in court because it is against the law. Indian-origin immigration lawyer Rahul Reddy said that the rules have not changed and the law will not change but the method of deciding on the green card application has changed.
What does USCIS say in the new rule?
USCIS said people come to the US on a temporary visa and then apply for a change of status to become permanent citizens. While waiting for this to happen, they continue to live in the US. USCIS said this must stop. A person who wants to become a permanent resident of the United States must return to his or her home country and then apply for an immigrant visa.
what changes
For decades, visa holders who came to the US legally and maintained their legal status the entire time could apply for a green card through ‘adjustment of status’. “For decades, the deal was this: If you followed the rules, maintained your status, got your I-140 approved, and waited your turn, your green card was essentially a sure thing through adjustment of status after your priority date turned on. The officer reviewing your file mostly asked, “Is this person eligible?” If yes, approved,” Reddy explained. “That deal is now in question. The new memo reminds officials that approving green cards from inside the United States is a favor, not a right. The official term is “discretionary” — meaning the official can’t say no even if you’re eligible. The memo doesn’t just remind them that they have this power. It actively encourages them to use it,” Reddy said. “The most worrying thing is how the memo views people on work visas. If you came to the US on an H-1B, L-1, or O-1, the government’s expectation – according to this memo – is that you will eventually go home. Not stay. Staying in the US rather than going back to your home country and applying at the US Consulate there to get a green card is something that officials should view in a negative light. Yes, the memo acknowledges that The H-1B and L-1 are allowed “dual intent.”“But then it says the allowance alone is not enough to get you approved,” Reddy explained.
What should H-1B visa holders who want a green card do?
Reddy said those who have already filed a green card application should consult their attorney and strengthen their case before USCIS raises questions. For those who are considering filing, the choice is difficult because ultimately they will have to return to their home country and apply from there, which is a slower and riskier path.
I-140 approved? Can you live in America?
There are many unanswered questions on the new memo. Many experts interpreted the memo to mean that it only applies to the ‘adjustment of status’ portion of the green card process which occurs only when your priority date becomes current and you are ready to file Form I-485. For this, one may have to go back to their home country, but people who have just filed I-140, which is the petition for a green card, will not have to leave the US. The priority date for India and China takes years to become operational and so there will be no immediate impact on these two countries but the USCIS memo did not clarify these specifics.