S2N

Doesn't address the elephant in the room that State doesn’t have the capacity for this. Sure, they could address that by State staffing up, but have we seen any indication they plan to?

@TBoneTX mentioned waiting to see what lawyers say on other parts of the internet. One thing I’ve seen pop up on Reddit by a few lawyers is that the memo uses the pre-1996 reform INA as its framework rather than the current INA, which means it likely won’t stand if challenged as in the post-1996 law congressional intent in favor of AOS is much more clear. That and a lot of comments on how no one knows how USCIS is actually going to implement it.

I mean, yes, but that’s not a good use of government resources. What exactly is USCIS going to be doing in field offices? They do not have immigration enforcement authority, despite what the current marketing is, and counselor I-130s can’t be adjudicated by FOs. They more or less would exist to adjudicate naturalization petitions, and there aren’t enough of those to keep them busy, even with the current delays. Meanwhile you’re shifting a significant workload to State that they currently do not have the capacity to absorb, either at NVC or the consulates. The issue isn’t that the policy memo takes an unreasonable view of the statute, it’s that it builds a conflicting statutory interpretation from the established administrative precedent and implements it immediately without building the structure that permits the effective implementation. I don’t really have a strong opinion on what the policy should be, but trying to overturn an established precedent that people have relied on for decades via a policy memo and immediately implementing it without a structure to accommodate (i.e. more staff at NVC and more FSOs) is not good governance. And as I keep repeating, the still on the books binding precedent is that AOS is assumed for families, even if there is preconceived intent. The change your mind at the baggage claim people are annoying, but the current interpretation of the law is that that is supposed to be forgiven.

We read it literally and included where he’d been on vacation too.

BIA rulings are immigration law until overruled. Administrative tribunals have the authority to create law just as judicial tribunals do. Yes, they’re interpreting the statue, but USCIS doesn’t have an independent legal authority to interpret the statue in contradiction of BIA. But BIA has been stacked with hardliners, so it’s not going to do anything on this issue currently, which is why you’re ultimately correct that this will go to a Circuit Court. I give is 60/40 of being struck down. There’s a huge history of US immigration law being extraordinarily deferential and forgiving to families even when they break the law in how they got here. You’re unlikely to find three judges to rule that the biochemist from the UK who married the girl he met while he was getting his PhD and had a US citizen child with needs to fly back to Glasgow, imo. And I don’t think SCOTUS would touch the topic with a 30 foot pole.

The statue is less important here currently. There’s binding BIA precedent on the topic. Yes, I’m aware that given the circumstances BIA will overrule its past precedent as a practical matter, but as it stands the memo is in direct contradiction of binding immigration law that USCIS does not have the legal power to ignore. USCIS is bound by BIA until BIA or a Circuit Court of Appeals overrules a published BIA ruling, and that has not happened on the presumption of a favorable exercise of discretion for family yet. But again, given the environment BIA will overrule itself when a case gets to them. It just bothers me that people keep going to the statue when BIA is the definitive authority for US immigration law, and and it is abundantly clear under their existing precedents that AOS is presumed to be granted for family. Once BIA overrules itself, then it will go to the DC Circuit on appeal by immigration advocates, and we’ll get a definitive answer that can’t be overruled. Technically it could go to SCOTUS, but this is too niche an issue for them to want to get involved in.

You’re still allowed to apply. The memo calls on USCIS to be stricter in its adjudication of AOS for student visas and sets a presumption they return home. That’s in conflict with the precedent I cited above, which presumes positive use of discretion in family AOS cases. The memo also does not forbid anyone from requesting AOS. The only way we’ll find out what actually happens is seeing the results of adjudications. If he returned to his home country, he wouldn’t adjust status. He’d get an immigrant visa.

I don’t necessarily disagree in theory but I think the practical considerations weren’t thought out here. Not even talking about the consulates, this has the potential to overwhelm NVC, which currently takes less than a month. My personal view is that this would make sense with some statutory changes and additional funding for DOS modernization, but on its own it could have negative systemic impacts.

The relevant precedent is: Notwithstanding evidence establishing preconceived intent adjustment of status should as a general rule be granted in the exercise of discretion in the case of an immediate relative Matter of Cavazos Despite what the memo says, the legal presumption since 1980 has been to grant spousal AOS. Cavazos biggest impact was to make misrepresentation and not preconceived intent alone the bar, but it did also establish the presumption of a positive use of discretion to grant green cards to family members via AOS. This memo seems to not interpret the law that way.

Also immigrant intent is (currently) not a legally valid reason to deny marriage-based AOS on its own without other negative factors per BIA precedent. USCIS wouldn’t just have to prove intent, they’d have to prove misrepresentation as well, which if you’re from a VWP country is fairly hard (my husband is waved through at mobile passport control without questions every time, as an example.) I’m curious how it will shake out when it inevitably gets to BIA. They’ve replaced a lot of the BIA judges, so I’m sure it will be upheld, but the controlling precedent is that granting marriage based AOS as a positive use of discretion is presumed even with immigrant intent. The policy memo apparently takes the position that USCIS can interpret statue in a way that conflicts with BIA.

But the practical implication has always been that it’s in the interest of the United States to find employment for PhD students here afterwards because it is a massive boost for our global competitive advantage; and one of the ways that frequently happened was through marriage. There’s other ways, but marriage AOS did a lot of work that otherwise would have necessitated Congress further clarifying visa categories. Basically if you go of what the memo was saying, the almost universal consensus was that it’s in the national interest to maintain highly skilled workers that build up the national industrial and scientific base. The memo does leave room for that judgement still, but it’s a lot harder. I agree it’d be better for Congress to change the law to make some student visas dual intent, but AOS did solve a practical problem in many cases that if the memo is implemented hardline will need a political solution. Agreed. Consulates still aren’t staffed for that workload though. Expect more delays.

Jinx, we cross-posted this 😛 We actually just submitted our NVC population 5 minutes ago because of this. We were waiting another month because Santiago is the fastest consulate in the world at processing right now (6-8 weeks from NVC submission to IR-1/CR-1), but who knows what impacts this will have on NVC and consulates.

That’s my read as well, but even student visas get iffy from an economic and social standpoint once you get to into PhD students (who are a lot of AOS.) It’s pretty normal for someone to come here for 6+ years, be doing research that is functionally work and in many cases has industrial applications, fall in love, get married, have kids, adjust. Thats different from your undergrads or foreign semester abroad students. None of us know the practical impacts, but I do know it will slow down counselor even more now.

I think the biggest question is what do they mean by temporary worker? Are we talking actual temporary worker visas that are meant primarily for seasonal farm work and hospitality? Or are we talking people like my friends working as researchers at universities and biotech firms on non-immigrant visas? If we’re talking people who essentially live in the US for 5 years and get married after 2, it would create economic and social chaos for them to be forced to return to their home countries.

USCIS just released a memo (PDF link) encouraging IOs to deny AOS as an act of discretion if an immigrant visa is available through the ordinary consular process. The memo itself isn’t as intense as the press release, but I think it’s fair to say ESTA or B-1/B-2 to AOS is over. The biggest question for me is how it impacts people on employment and student visas trying to transition to green card status, since that seems like that would create chaos if the foreign spouse had to return home after their 5 year status was up after working and studying.