In a monumental shift in policy, the federal government plans to bar noncitizens from changing their immigration statuses except in extraordinary circumstances.
Local immigration attorneys say the move by the U.S. Citizenship and Immigration Services (USCIS) will impact thousands of people in the middle of the process and those planning to adjust their statuses in Massachusetts, and millions of foreign nationals nationwide. That includes students, temporary visa holders, and tourists, say attorneys.
Adjustment of status is when a noncitizen lawfully in the U.S. tries to switch to lawful permanent residence, known as a green card. It has been routine within the USCIS for decades. Adjustment of status has long allowed noncitizens to do so within the US without having to return to their country of origin.
"It's extremely disruptive and is only going to further burden and complicate the system. It makes no sense," said Robin Nice, a local immigration attorney.
Todd Pomerleau, a local attorney who has won cases before the Supreme Court, said that the USCIS "can't eliminate statutory protections nor can it rewrite regulations while going through the proper channels. Otherwise, we'll sue them in court."
USCIS released a memo on Friday saying that the system has been abused. Specifically, the memo says the process that allows green card applicants to remain in the U.S. while applying was never intended to replace the system of applying for a visa from abroad. It instructs officers to treat adjustment of status applications as an exceptional, discretionary benefit, and that it is now "an extraordinary form of immigration relief."
The agency says that even if applicants meet requirements for permanent residence when they're about to apply in the US, they must leave the U.S. when their current visa ends, and wait for the State Department to process their case.
"It affects every person within the United States that is seeking adjustment of status. It affects students, it effects temporary protected status holders, it affects business visa holders," said Annelise Araujo, a lawyer who runs an immigration practice in Boston.
Given the backlog of cases, attorneys say noncitizens will have to wait abroad for an indefinite period of time, and potentially be ineligible to return.
USCIS spokesman Zach Kahler said the change is about "returning to the original intent of the law."
"This policy allows our immigration system to function as the law intended instead of incentivizing loopholes. When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the U.S. illegally after being denied residency," he said in a statement. Kahler said nonimmigrants, like students, temporary workers, or people on tourist visas, come to the U.S. for a short time and for a specific purpose, and they must leave after.
Nice said the policy will drive immigrants "underground" and force them to pay thousands of extra dollars annually in renewing temporary statuses and work permits, since they won't want to go abroad.
Araujo said the policy change will have a large impact on students. F-1 student visa holders can currently apply for green cards with limitations.
"They may change what their goals are, right? They may decide that they want to permanently stay after they've entered the United States and they may look for a job here. And that's why adjustment of status exists," she said.
Both Nice and Araujo said USCIS is wrong that this has previously been standard policy.
Araujo said the change will also impact people on work visas, like CEOs of multinational corporations, or on specialized visas, like an H-1B, a visa for foreign nationals with specialized knowledge in fields like technology, engineering, healthcare or finance.
"They can go from a non-immigrant intent, which was the intent they had at the time they applied to enter, to a immigrant intent after they've been in the United States," she said. Noncitizens told they can't have a path to a green card and work lawfully may start considering other countries.
Pomerleau recommended noncitizens thinking of adjusting their status or in the middle of it consult with an immigration attorney.
"This is just yet another sign of the government trying to make things difficult for people that are even able to follow the laws that Congress created," said Pomerleau.
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