The Real Legal Fight Over the New USCIS Adjustment of Status Memo
At the time, the biggest concern was practical. Immigration lawyers were trying to figure out whether USCIS officers would begin viewing ordinary family-based adjustment cases differently than they had in the past. That concern was especially pronounced in cases involving overstays, unauthorized employment, or preconceived immigrant intent.
Now that immigration lawyers and litigation groups have had more time to analyze the memo, a second issue is becoming clear: There may be serious legal questions about whether USCIS is attempting to change adjustment adjudications in a way that exceeds the agency’s authority.
Why Immigration Lawyers Are Concerned
For decades, Adjustment of Status under INA §245 has operated under a relatively familiar framework. An applicant first had to prove statutory eligibility. Then USCIS would weigh positive and negative discretionary factors.
Historically, immediate relatives of U.S. citizens often received favorable discretionary treatment absent serious adverse issues such as fraud, criminal conduct, national security concerns, or repeated immigration violations. That did not mean adjustment was automatic. It never was.
But the system generally recognized something important: Congress created Adjustment of Status precisely because some people lawfully enter the United States temporarily and later become eligible to remain permanently. That is not an accident in the immigration system. It is one of the central purposes of INA §245.
The concern with the new memo is that USCIS now appears to be treating common adjustment fact patterns themselves as potentially negative discretionary conduct. That includes:
- visa overstays,
- remaining in the United States after temporary admission,
- unauthorized employment,
- and entering on a temporary visa while later deciding to pursue permanent residence.
For many family-based immigration lawyers, that represents a major shift in tone and potentially in adjudication standards.
The “Preconceived Intent” Problem
One of the biggest issues involves immigrant intent. Historically, there has always been an important distinction between:
- fraud or material misrepresentation, and
- a person whose intentions changed after lawful admission.
Those are not the same thing. A person can enter the United States lawfully on a temporary visa and later decide to remain permanently after marriage, family developments, changed life circumstances, or other events. That has always existed within the structure of adjustment law.
The new memo appears to blur that distinction by suggesting that entering temporarily and later remaining permanently may itself weigh heavily against a favorable exercise of discretion — particularly where USCIS believes consular processing could have been used instead.
That is where many practitioners believe the agency may be moving beyond ordinary discretionary adjudication and into something closer to a policy presumption against adjustment in certain categories of cases.
Possible Administrative Procedure Act Challenges
Immigration litigation groups are now openly discussing possible lawsuits under the Administrative Procedure Act (“APA”). The core legal theory is relatively straightforward: Federal agencies generally cannot create new substantive rules without following formal rulemaking procedures.
Critics of the memo argue that USCIS may effectively be creating a new adjudicative standard — one that elevates “extraordinary circumstances” into a de facto requirement for adjustment approval in many cases. The problem is that the phrase “extraordinary circumstances” does not appear in the discretionary language of INA §245.
If courts conclude that USCIS is using discretionary language to create a categorical policy shift, plaintiffs may argue that the agency improperly bypassed notice-and-comment rulemaking requirements.
There are also arguments that the memo conflicts with longstanding agency practice and Board of Immigration Appeals precedent recognizing that:
- immediate relatives ordinarily receive favorable discretionary consideration absent serious adverse factors,
- preconceived intent alone is not automatically disqualifying,
- and adjustment requires individualized balancing rather than categorical presumptions.
Whether those arguments ultimately succeed is still an open question.
Federal courts traditionally give immigration agencies substantial deference in discretionary matters. But if denial patterns begin to show systemic or quasi-categorical treatment of ordinary adjustment cases, the litigation risk for USCIS increases considerably.
The Most Important Practical Change
From a practice standpoint, this may be the single biggest takeaway: Adjustment cases increasingly may need to be prepared like waiver cases.
In the past, many straightforward family-based adjustment cases focused primarily on statutory eligibility and supporting documents. Going forward, lawyers may need to proactively build stronger discretionary records from the beginning. That can include:
- tax compliance records,
- evidence of community involvement,
- caregiving responsibilities,
- educational achievements,
- rehabilitation evidence where applicable,
- employment history,
- volunteer work,
- proof of long-term family stability,
- and affirmative discretionary legal briefing.
In other words, it may no longer be enough in some cases to simply prove eligibility. Applicants may increasingly need to prove why they deserve a favorable exercise of discretion.
What Happens Next
At this point, the biggest unknown is not necessarily whether lawsuits will be filed. They almost certainly will be. The bigger question is how aggressively USCIS officers actually apply this memo in real adjudications. If the policy results in:
- widespread denials,
- inconsistent outcomes,
- or quasi-categorical treatment of common family-based cases,
then the likelihood of successful APA challenges increases significantly. But if the memo is applied unevenly or mostly symbolically, litigation becomes much harder because proving systemic harm is more difficult.
For now, immigration lawyers should assume the policy is real, operational, and likely to affect case preparation strategy immediately. That does not mean every family-based adjustment case is suddenly doomed. But it does mean the margin for error may be shrinking. And in immigration law, small discretionary shifts inside the agency often become very large consequences for families.
Schedule a Consultation
If you have questions about Adjustment of Status, immigrant intent issues, unlawful presence, or family-based immigration strategy, contact The Law Offices of Sean D. Hummel at (954) 385-3111 or email sean@hummelaw.com.
Disclaimer
This blog post is for general informational purposes only and is not legal advice. Immigration law changes frequently and every case is unique. You should consult with an attorney about your individual circumstances.
About the Author
Sean D. Hummel is a Florida U.S. Immigration Lawyer based in Deerfield Beach. His practice focuses on family-based immigration, adjustment of status, waivers, naturalization, and removal-related immigration matters.
