In a significant policy change, the administration recently announced that, effective immediately, applicants for permanent ‘green card’ visa status generally must be physically outside the U.S. at the time of their application.

Recent data shows that 70% of employment-based applicants historically have pursued ‘green card’ permanent residency while remaining in the U.S. through a process known as ‘adjustment of status’. This shift requiring an applicant to apply physically outside the U.S. substantially restricts the primary permanent residency route and may result in a significant hurdle to employer permanent residency sponsorship programs.

However, the administration has indicated there may be flexibility regarding the application of this new requirement.

What Has Changed?

In its press release, U.S. Citizenship and Immigration Services (USCIS) stated that “an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”

In contrast, in a related policy memorandum issued the day before the press release, USCIS took a more measured approach, reaffirming existing law that ‘adjustment of status’ is “a matter of discretion”. Government officers are directed to weigh all positive and negative factors in each case, including compliance with immigration status and prior conduct in the U.S.

The government likely will scrutinize cases with an emphasis on negative discretionary factors, such as status violations, failures to depart the U.S. when required, or conduct inconsistent with the purpose of the previously approved temporary visa. This means employers and employees likely will need to submit substantial additional documentation to argue for a positive exercise of discretion in each case.

Importantly, USCIS also notes that holding “dual intent” nonimmigrant status, such as H-1B or L-1, is “not sufficient, on its own, to warrant a favorable exercise of discretion.”

Future interpretation by USCIS is unclear at this time, but a substantial increase in USCIS requests for evidence and in-person interviews would likely result in processing delays and an increase in denials.

This remains true, even with USCIS’ reported recent statements to multiple news outlets that the policy should have “no noticeable impact on highly qualified applicants and skilled professionals who have followed the law.”

What Has Not Changed

‘Adjustment of status’ remains available as a route to a green card, and USCIS will continue processing applications. And, as in the past, USCIS must continue to provide to the applicant an analysis of discretionary positive and negative factors when denying an adjustment of status application.

Careful evaluation by employers of employees’ eligibility for ‘adjustment of status’ has always been necessary, but it becomes substantially more important under this new guidance.

What Should Employers Do Now?

Although the full impact will depend on how the government applies this new guidance in practice, employers should take a proactive approach and consider taking the following steps –

• Identify currently pending ‘adjustment of status’ cases and proactively prepare strong evidence to demonstrate applicants are “highly qualified”

• Evaluate timing strategies for green card sponsorship of sponsored employees, including whether it is advisable, and practical, for them to leave the U.S. to apply abroad

• Ensure your organization’s anticipated ‘green card’ applicants maintain current temporary status, as status violations could undercut ‘adjustment of status’ applications

• Analyze your ‘green card’ eligible sponsored employee population to assess the potential business disruption if some or all must apply from outside the U.S.

Silberman Law will continue to monitor this developing situation to ensure employers have the best available information to inform sponsorship decisions.

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If you have questions about this Alert or want immigration law advice or guidance, please contact the Silberman Law legal professional with whom you work, or simply reply to this Alert.