Trump’s New Green Card Policy May Be Illegal, Experts Say

The Trump Administration has released a new memo which would require many immigrants to return to their home country to apply for a green card.

But policy experts say the May 22 memo, effective immediately, is unlawful and will likely be challenged in court. Jeff Joseph, president of the American Immigration Lawyers Association said at a June 5 American Community Media news briefing that his organization is looking for plaintiffs who would be harmed by the new policy.

The new policy was issued through a memo rather than the normal federal rule-making process, which usually includes public comment, said Joseph. “To the extent that this changes the way the public has to interact with the agency, it’s a rule and should have gone through notice and comment,” he said. “The agency didn’t do that.”

AILA is looking for plaintiffs such as young H4 dependent adults — immediate family of an H-1B visa holder — who have grown up in the US, but must leave the country to adjust their status. The organization is also looking for individuals who came in on a K1 visa — also known as a fiancee visa — among others. He urged interested plaintiffs to reach out to him directly.

USCIS: ‘Leave when visit is over’

USCIS spokesman Zach Kahler said in a press statement that his agency was “returning to the intent of the law to ensure aliens navigate our nation’s immigration system properly. From now on, 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.”

“Nonimmigrants, like students, temporary workers, or people on tourist visas, come to the U.S. for a short time and for a specific purpose. Our system is designed for them to leave when their visit is over. Their visit should not function as the first step in the Green Card process,” stated Kahler.

But Joseph challenged USCIS’ intent, noting that Section 245 of the Immigration and Nationality Act protects those seeking to adjust their status. “Congress has set it out as a pathway, a legal pathway to permanent residence,” he said.

Jeff Joseph, president of the American Immigration Lawyers Association, discusses the legal inaccuracies of the USCIS policy memo that now requires immigrants seeking a green card to apply from their home countries.

Harmful discretionary authority

Immigration advocates have expressed concern that the new policy offers discretionary authority to immigration officials to determine whether a green card application can be processed within the country or outside.

Joseph noted that consular officials have always had such authority. “The concern is that this memo frames their exercise of discretion in a particular way that could cause harm to a lot of individuals who are going through this process,” he said.

The new policy could affect family-based and employment-based immigrants, while refugees, asylum seekers and several humanitarian categories are expected to remain exempt.

Impact to families

Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, said many people who obtain green cards through U.S. citizen spouses could be affected.

“Every year, hundreds of thousands of people get green cards through a spouse or a parent or a child who is a U.S. citizen,” Gelatt said. “This memo is casting doubt on whether adjustment of status through these family relationships can continue in the same way.”

She warned that consular processing — outside the US — could create significant hardships.

“If people get put into additional processing steps, they could get stuck outside the US for months,” Gelatt said. “This can get very expensive. It could put their job at risk, and it could mean long periods of family separation from their loved ones in the U.S.”

Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, discusses the new USCIS policy memo on green cards will affect people seeking permanent residency through a spouse, parent or other close family member.

Undocumented immigrants

The consequences could be especially severe for people who have lived in the United States without legal status after entering lawfully. Under existing law, leaving the country after accumulating unlawful presence can trigger a three-year or 10-year ban on returning.

“If you spend a year or more in the United States without legal status as an adult, that’s when you face that 10-year bar,” Gelatt said. “That is a very long time to ask people to be separated from their families in the US.”

Mixed-status families, where some members hold legal permanent residency while others must apply, could be hit with lengthy periods of family separation, she noted.

Earlier this year, the State Department put a halt to all immigrant visa applications from 75 countries, targeting nationalities believed to be at high risk for needing federal public benefits. The ban, effective Jan. 21, has no end point. This effectively bars people from those 75 countries from getting a green card, explained Gelatt, noting also that those who are directed to apply from abroad may not have the ability to return to the US.

Students

International students on F-1 visas may also have a difficult time adjusting status. “You come to the US and like me, you spend many years getting your PhD. You start to feel like you belong in the United States. But you have told the government: ‘I plan to go home at the end of my period of stay as a student. That’s my intention.’”

“If somewhere in your many years in the US you fall in love and marry a U.S. citizen and get sponsored for a green card, now the government might be saying: ‘Well, you told us you were going to go home, so maybe you should go home and get your green card abroad,’” said Gelatt.

Green card marriage

Xiao Wang, CEO and co-founder of Boundless Immigration, noted that marriage-based green card applications are now getting increased scrutiny. “Historic guidance to State Department officials and consular officers was: ‘Look, it is not your job to judge what true love is.’ So marriage cases have been adjudicated pretty quickly and successfully in the past.’”

Historically, there has been the concept of a 90-day rule, explained Wang. If you come in on a tourist visa and get married within 90 days, the government would likely have regarded that as fraud. But beyond three months, “the government used to say: ‘Who are we to judge how quickly someone can fall in love,’” said Wang. But marriage-based green card applications are now increasingly being sent to immigration court for adjudication, he said.

H-1B Visas

Xiao Wang, Co-founder and CEO, Boundless Immigration, discusses the economic consequences businesses will face as a result of the new USCIS Green Card memo.

Employment-based immigrants, including H-1B visa holders are also closely watching the policy. More than half of all green cards issued have been for employment-based immigrants.

The well-established path usually starts with a student visa, then goes on to a work visa, and eventually permanent residency. Wang said the memo creates uncertainty around that process.

“For multiple recent decades, applying for a green card from within the United States has been the standard path of people legally studying, working and staying in the US,” he said. “

The uncertainty could affect workers, employers and families alike.

“Companies, individuals and students have built an entire life around a process,” Wang said. “Changing these rules midstream with no warning and no time to adjust will create increasing confusion for immigrants who are here and discourage people who are thinking about starting this journey.”

Wang also warned that spouses could lose work authorization. Adult children, who are dependent on their parents for their immigration status, may have to return and wait in countries they have never known to apply for their green cards, said Wang.

Economic hit

The uncertainty has caused far fewer H-1B applications to be filed this year, said Wang. President Donald Trump’s immigration policies at large have had a “chilling effect on people wanting to come to this country, stay in this country, and work in this country,” he said.

Corporations are also less willing to hire and invest in the fees, the paperwork, and training of workers from abroad, said Wang, noting the subsequent multi-billion dollar hit to the US economy.

Joseph said he felt certain immigration advocates could challenge the legality of the memo in court, and get a temporary injunction to halt implementation. He advised those concerned about their status to seek out an attorney.

“If you’re concerned about your status, have an annual checkup with your lawyer just to make sure you’re not vulnerable,” he said.