Explained: Why US’s Green Card Applicants Are Suddenly More Vulnerable

On 21 May, US Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199. It amends no statute. It eliminates no green card category. It will never appear in the Federal Register. And yet, for the more than one million foreign nationals waiting for permanent residence from inside the US, it may prove to be one of the more consequential immigration policy shifts in recent years.The memo reframes Adjustment of Status, the process by which a foreign national obtains a green card without leaving the country, as "a matter of discretion and administrative grace" and "an extraordinary relief." In practical terms, the USCIS is instructing its officers that approving a green card application from within the US is no longer a routine administrative step at the end of a long eligibility process.It is a discretionary act, and one the agency is now empowered to withhold even from applicants who meet every statutory requirement.The scale of that recharacterisation is worth pausing on. In fiscal year 2024, at least 782,770 of the 1,356,760 individuals who became lawful permanent residents, roughly 58 percent did so through the Adjustment of Status from within the US. The memo, in effect, recasts the most common pathway to a green card as the exception rather than the rule.Duped & Deported: How Agents Trick Hundreds to Migrate to US Via 'Dunki' RoutesThe categories most directly affected span a broad cross-section of the foreign-born workforce in the US.The H-1B holders are the largest group exposed. Dual intent the legal framework that has long made the H-1B the standard runway to a green card no longer suffices on its own.Officers are now expected to weigh affirmative equities such as long-term US employment, property ownership, US-born children, and tax compliance against adverse factors including past status gaps or dismissed or expunged offenses. L-1 transferees pursuing EB-1C green cards face the same framework. O-1 holders transitioning to EB-1A or EB-2 NIW are subject to the same discretionary lens.The F-1 students on Optional Practical Training (OPT) face heightened exposure because F-1 is a single-intent visa. The memo permits officers to consider a student's earlier representation of intent to return home when evaluating a later green card filing, sometimes years after the original visa application. Family-based applicants, particularly spouses of US citizens with prior overstays, face the additional consideration that consular processing abroad may trigger three- or ten-year reentry bars.The memo does not render any case automatically deniable. Applicants with clean immigration histories are not the primary concern. However, applicants in every category above are well advised to review their record carefully with counsel before filing.Immigration and Foreigners Bill: A Tool To Muzzle Dissent?A significant part of the concern within the immigration bar and among employers is structural rather than rhetorical. In 2022, the US Supreme Court decided Patel vs Garland, holding that federal courts have no jurisdiction to review factual findings made by immigration authorities when they deny discretionary relief, including Adjustment of Status.Read alongside the new memo, Patel takes on additional weight. The combination of a new discretionary standard, broad officer authority to make adverse factual findings, and a Supreme Court precedent that limits judicial review of those findings means that an unfavorable factual determination at the I-485 stage is, in most cases, not correctable in federal court.The applicant's options are generally to refile or to pursue consular processing abroad which, depending on the case history, may carry its own risks.Among the populations most affected by the memo are Indian nationals, who dominate the EB-2 and EB-3 employment-based queues. Per-country limits under the Immigration and Nationality Act have stretched wait times for this group into decades. A widely cited Cato Institute analysis by David J Bier projected the EB-2 India wait at roughly 151 years based on 2017 visa issuance rates, EB-3 at about 17 years, and an averaged wait of around 58 years even after accounting for category cross-filing.For many Indian professionals, 10-15 years or more in H-1B status before becoming eligible to file Form I-485 is already the norm. The memo introduces three additional considerations for this group: per-country backlogs that already delay AOS eligibility by decades, consular wait times in India that exceed a year, and a discretionary standard at the final adjudication that limits judicial recourse if the application is denied.For the roughly 1.2 million people currently in employment-based backlogs, including approximately 627,000 Indian-born applicants, the memo does not change the ability to live and work in the US while the green card application is pending. It does, however, raise the level of scrutiny at the final I-485 stage.The H-1B and L-1 workers, founders on O-1 visas, researchers and faculty on EB-1B, and skilled professionals across sectors will now face closer review of every job change, status transition, and prior visa representation. One practical effect already visible in consultations is greater caution among employees with pending I-485s about changing jobs or accepting new roles.'Might Take Decades': US Green Card Backlog Forcing Indians to Make Tough CallsThe memo's underlying logic that applicants should generally consular process abroad rather than adjust status in the US runs into three practical considerations.Operationally, the consular network was not designed to absorb the volume that a significant shift away from AOS would generate. Over half of all green cards in fiscal year 2024 were issued through Adjustment of Status, and consular posts in high-demand countries are already running multi-year backlogs. Legally, the memo is likely to face challenges under the Administrative Procedure Act, on the theory that it bypassed notice-and-comment rulemaking. Diplomatically, the policy is most difficult to apply to nationals of the roughly 75 countries subject to immigrant visa processing pauses and the 39 travel-ban countries, for whom consular processing is either suspended or legally unavailable.The economic implications are gradual rather than immediate. The memo is unlikely to produce a sudden disruption to the US innovation ecosystem, but it adds friction to the process of retaining foreign talent at the stage where retention is decided. Comparable jurisdictions in Canada, the United Kingdom, Australia, and the United Arab Emirates, among them, have been actively recruiting the same talent pool through targeted immigration programs. For sectors such as artificial intelligence, semiconductors, and deep technology, where the US competitive position depends heavily on access to international talent, the policy is likely to register at the margins of long-term decisions about where researchers, founders, and engineers choose to build their careers.Immigrants Won’t Escape Impact of US States Gerrymandering on Racial LinesFor applicants and employers navigating the memo today, three steps are most commonly recommended in the immigration bar.First, preserve status. Applicants with pending or planned I-485 applications should not allow their underlying nonimmigrant status to lapse. Allowing an H-1B or L-1 to expire in favour of a C9 EAD tied to a pending I-485 is now explicitly identified in the memo as an adverse discretionary factor. Extensions should be filed early, and gaps in status avoided where possible.Second, audit the file in advance. Every case should be reviewed for tax compliance, clean immigration history, criminal record (including arrests without conviction), and consistency of prior visa representations particularly for F-1, J-1, B, and TN holders who previously represented nonimmigrant intent.Third, build the discretionary record upfront rather than waiting for a Request for Evidence.The initial filing can include affidavits of US ties, employer letters, tax transcripts, and documentation of family connections, rather than reserving those materials for later stages.Legal challenges to the memo are expected. The most likely theory is a notice-and-comment challenge under the Administrative Procedure Act if a court treats the memo as a substantive rule rather than an interpretive policy statement, it could be vacated on procedural grounds.Nationals of the 39 travel-ban countries are positioned to raise additional equitable arguments, given that consular processing is unavailable to them.Implementation, however, is likely to move ahead of litigation. Officer-level variability across service centers, an expected increase in RFE volume, and uncertainty pending category-specific USCIS guidance will shape adjudication patterns in the months ahead. For impacted workers, the practical horizon is at least the next twelve months under the current framework. Filing strong applications, preserving status, and treating any judicial relief as a possibility rather than a base assumption is the posture most commonly being recommended.Exclusive: In First Year of Trump 2.0, Rate of Indians Arrested by ICE TripledThe memo does not close the door to permanent residence. What it does is raise the threshold at which applicants must demonstrate that they merit favorable discretion even when every statutory requirement has been met. It will be litigated, may be narrowed, and could eventually be rewritten. But, for at least the next year, it is the framework under which green card applications inside the US will be evaluated.For the more than one million people currently waiting in line, the practical takeaway is straightforward. Eligibility, by itself, is no longer enough. The file that arrives at USCIS today is expected to make the case, in full, for why the applicant should be granted permanent residence from within the US.(Sai Srinivas Reddy Bhumireddy is an Attorney at Law, licensed in the State of Indiana, US, practicing in Immigration Law, Family Law, and Personal Injury. This is an opinion piece and the views expressed are the author's own. The Quint does not endorse or is responsible for them.)

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Explained: Why US’s Green Card Applicants Are Suddenly More Vulnerable

The H-1B holders are the largest group exposed by USCIS's new memo on green card applications.