By Farhad Sethna, Attorney

 

On Friday, May 21, the USCIS overturned immigration law and decades-long policy by issuing a memo ending “Adjustment of Status” – AOS – the process of applying to the USCIS for a “green card”by aliens already present in the USA.

Instead, USCIS declared that such aliens now need to leave the USA and apply for “Immigrant Visas” at US consulates in their home countries, through “Consular Processing”.  Never mind that many applicants – for example, Special Immigrant Juveniles, or individuals with valid Employment Authorization, or individuals from one of the 75-odd countries from which the US has banned visa processing, or applicants from countries which have no functioning US consulates, or those who simply cannot return to their home countries – are unable to leave the USA.

What prompted this sudden change in USCIS policy?  I believe it is simply an extension of Trump’s desire to limit ALL immigration to the USA – including, in this case, legal immigration by individuals who have played by the rules and who have waited – in many cases – for years and sometimes decades – for visas. This policy is driven by jingoistic nationalism, regardless of the harm it is going to cause the US economy, already battered by Trump’s ill-conceived and poorly executed foray into the Middle East.  Keep in mind that immigrants are the life-blood of the US economy – contrast the thriving US engine with the moribund economies of Western Europe and even Australia and Japan:  hampered by low birth rates and low immigration, those economies are struggling to generate GDP and tax revenues to maintain the social compact with their citizens as well as their international and defense obligations.

So – what does this intentionally misguided policy augur for the adjustment-eligible portion of non-US citizens?  What of the tens of thousands of pending AOS applications?   The USCIS memo is silent on retroactive application or effective date….always crucial elements in implementing any government policy. Despite this glaring omission, the USCIS memo expends considerable space – no surprise – on the “negatives” – including why the alien could not or chose not to consular process.  However, the statute does not impose consular processing as mandatory;  if it did, there would be no reason to even have a law (INA § 245(a)) that has been in applied for decades!

The USCIS “policy” must be challenged in court.  There is no valid or rational reason to impose this burdensome requirement, not only on the affected law-abiding non-citizen, but also on a terribly backlogged US Department of State, which operates US consulates overseas, and would be incredibly strained to provide the lengthy interview slots which would be needed to assess every intending immigrant visa application.

In sum, the USCIS policy is not only based on impermissible racial animus, it is detrimental to the US National Interest.  Even if for purely selfish interests, Congress should require the USCIS revoke this policy and retain AOS as a viable mechanism for legal immigration. Congress needs to do its job and take a robust stance on USCIS’ oversight.

Stop Press:  On Saturday, May 20, the USCIS issued another statement claiming that the May 21 memo was simply a “restatement of longstanding law and policy”, and that the “policy will not prevent any alien from obtaining a green card who legitimately and properly qualify. (sic)”.  The clarification also went on to assure “highly qualified applicants and skilled professionals who have followed the law” that the policy would have no noticeable impact on them.

Unfortunately, the clarification does not reverse the USCIS’ AOS policy announced on May 21. Instead, the “clarification” generates even more confusion – why are only certain populations carved out for AOS approvals?  What about the other categories of applicants who have also followed the law and remain eligible for AOS? What are field officers supposed to do?  Is there a policy or is there not?

In short, the coming days and weeks will inform the community whether the scope and implementation of the AOS policy.  As a practicing attorney, I will be watching, and pivoting as needed.  Another unnecessary mess, no surprise from an administration which thrives in creating unnecessary messes.  Making America Great Again?  Hardly.

 

© Farhad Sethna, Attorney, 2026

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.