H-1B visa holders may feel relieved after US authorities confirmed that a policy introduced by the Trump administration last week will not impact their green card plans. The clarification could save them from having to leave the country to apply for a green card, reports Newsweek.
What did USCIS say?
Zach Kahler, United States Citizenship and Immigration Services (USCIS) spokesman, told Newsweek in an email Sunday that the agency is “reasserting” what it believes Congress intended all along when it created the adjustment‑of‑status pathway.
“People who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path,” Kahler explained, adding that others “may be asked to apply abroad depending on individualized circumstances.”
The Department of Homeland Security also clarified, according to Semafor Washington, DC, that the immigration policy announced on Friday suggests that current H-1B visa holders could be able to “continue on their current path.” A USCIS spokesperson further told Semafor that H-1B visa holders and high-skilled workers might not be affected in the near term. The agency is “merely restating and reasserting” its reading of congressional intent regarding immigration status changes, the spokesperson said.
What is the Adjustment of Status process?
At the center of the debate is the Adjustment of Status process. It is the process through which a foreign national, already present in the United States, can apply for lawful permanent resident status — commonly known as a Green Card — without having to return to their home country. If you are outside of the United States, you must obtain your visa abroad through consular processing.
The New Green Card Rule
The Trump administration has proposed a rule requiring most immigrants seeking green cards to apply for permanent residency through the Adjustment of Status process from outside the United States. This could potentially impact millions of workers, including highly-skilled employees in the tech industry and spouses of US citizens.
In its May 21 memo, USCIS argues that Congress did not intend for temporary visitors — such as students and H-1B or L-1 professionals — to use their temporary stay as a pathway to permanent residency or a green card. Therefore, USCIS has established consular processing abroad as the default requirement, reserving domestic Adjustment of Status strictly for exceptional cases.
How does the H-1B and Green Card process work?
The H-1B is a temporary visa program available to foreign workers for 3 years, with an extension of another three years. Under current US immigration laws, H-1B visa holders are eligible for an extension beyond the sixth year if they are the beneficiary of an approved immigrant visa petition under the EB-1, EB-2, or EB-3 classifications, and all other conditions set by immigration regulations are met.
To apply under the Adjustment of Status process, Form I-140 is filed by employers to petition for a foreign worker to become a lawful permanent resident in the United States, while Form I-485 is filed by non-immigrants to apply for lawful permanent resident status if they are already in the United States.
The Outlook
In its May 21 memo, USCIS does acknowledge exceptions, including non-immigrant categories with dual intent and immigrant categories where only the Adjustment of Status process provides a pathway to permanent residency. However, USCIS also reminds its officers that maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.
For now, it remains unclear whether USCIS will issue detailed guidelines on who is applying from outside the US, will apply, or whether the May 21 memo will continue to be used by officers to determine green card application eligibility on a case-by-case basis, based on their discretionary powers.
Disclaimer: The information provided in this article is for informational purposes only and does not constitute legal or immigration advice. Immigration policies and rules are subject to change, and individual circumstances may vary. Readers are strongly advised to consult a qualified US immigration attorney before making any decisions regarding their visa or green card application. Financial Express does not assume any liability for outcomes arising from reliance on this information.