A new agency memo could endanger noncitizens applying for citizenship.
U.S. Citizenship and Immigration Services (USCIS) recently issued a policy memo that reframes adjustment of status, the process of applying for permanent U.S. residence from inside the country, from a standard process to an extraordinary form of discretionary relief while making consular processing—applying at a consulate in a foreign country—the presumptive default. USCIS claims that consular processing reflects the “original intent” of the 1952 Immigration and Nationality Act. This rationale does not survive scrutiny.
Adjustment of status was created by the U.S. Congress in 1952 to provide eligible noncitizens in the United States with a domestic adjudication process to obtain lawful permanent residence. According to USCIS, Congress’s goal was to spare applicants “the expense and inconvenience” of travelling back to their home country to seek citizenship.
The original statute made adjustment available only to a noncitizen who had been lawfully admitted as a bona fide nonimmigrant and was maintaining that status. In the decades since, however, Congress has widened eligibility again and again, extending it to those inspected and admitted or paroled, to certain otherwise-ineligible applicants who pay a penalty fee, and to survivors of abuse, trafficking, and other crimes. Prior to the Administration’s new policy, Congress had long ensured that a broad range of individuals, regardless of prior immigration violations, could adjust their status domestically, remaining with their families and communities and retaining the constitutional protections that attach to physical presence in the United States.
The Trump Administration’s new policy memo relegates these applicants to consular processing, a procedure that is slower and riskier. Applicants must have their case transferred to a consulate or embassy abroad, await a scheduled interview, depart the United States, forfeiting the constitutional protections associated with physical presence, and then apply for an immigrant visa with no guarantee of approval. A consular officer abroad will spend, on average, under two minutes reviewing a case that USCIS may have spent months or years developing. Those decisions are largely insulated from judicial review under current law.
There is no security rationale to justify this change. As standard procedure, USCIS conducts biometric screening, criminal background checks, and interagency database reviews. The consular processing interview adds no meaningful layer of security for an applicant already vetted by domestic agencies. What it adds is uncertainty, delay, cost, family separation, and the risk of a denial that cannot be appealed and may come without explanation.
This reversal also breaks from a settled, bipartisan status quo. Congress and prior administrations have long recognized that mandatory departure is not a mere inconvenience but a real danger, and they have built relief to prevent it. The Obama Administration created the provisional unlawful presence waiver in 2013 for precisely this reason: to spare immediate relatives of U.S. citizens the prolonged family separation and uncertainty that came from having to leave the country, trigger the unlawful presence bar, and wait abroad for a decision with no guarantee of return. The waiver let those applicants secure forgiveness before departing, and it has never been rescinded. This recent memo sets it aside without explanation.
Beyond the costs of travelling abroad, noncitizens may also face worse immigration outcomes in consular processing than they would in an adjustment of status proceeding. Consular officers abroad operate as the tip of the spear in border security, trained to understand local customs and detect signs of fraud. In contrast, the USCIS adjudicator decides on a fully documented evidentiary record, weighing factors such as the applicant’s family ties, length of residence, employment history, community standing, and the hardship a denial would impose on U.S. relatives, and must give written reasons for any denial. Many benefit denials can also be taken to administrative appeal, as can many adjustment decisions. The consular side offers even less oversight: a supervisor need review only ten percent of visa issuances, and a refusal will almost never be explained in a reasoned decision or meaningfully reviewed. The consular officer’s role and training instill a skepticism that leans toward denial even before fraud enters the picture, and at posts where fraud is constant, that instinct grows stronger. USCIS is designed to say yes when the law allows it, and to search for a way. The consulate is designed to say no, usually from the start, and to sustain it when in doubt.
A denial for suspected fraud will withstand judicial review so long as the officer gives a facially legitimate and bona fide reason. This is not the right formula for noncitizens who have long resided in the United States. Instead, these cases belong with USCIS, where an officer must independently review the underlying petition and supporting evidence, resolve all security checks, and ordinarily interview the applicant, producing an adjudication that is thorough, evidence-based, documented, and appealable. This careful, multi-step review and adjudication takes months and produces a thorough result but imposes none of the separation that departure abroad requires.
The adjustment of status process has never been singled out for the kind of criticism or documented systemic abuse that would explain targeting it over other routes to permanent residence, making this new policy a strange and unexplained departure. The details of who will qualify for adjustment of status based on “extraordinary circumstances” remain undefined. It is also unclear whether the Administration’s intent is to push individuals outside the territorial reach of the Constitution so that denials may be issued more easily under the “facially legitimate and bona fide” standard. No principled justification is visible from the text of the memo itself.
Congress should reassert what it has demonstrated consistently across decades of legislation expanding eligibility for adjustment of status: that people should have their citizenship determined here, rather than in their home country. And if this Administration is genuinely concerned with reducing the number of individuals without lawful permanent status in the United States, it should welcome a process that converts that population into lawful permanent residents rather than one that sends them abroad and risks losing them to an unreviewable denial.
