Green card holders take the oath of allegiance to become citizens at the U.S. Citizenship and Immigration Services’ field office in central New Jersey, Aug. 23, 2023. (U.S. Citizenship and Immigration Services )
Military families seeking permanent U.S. residency face new uncertainty under a federal immigration policy that suggests some green card applicants must file from their home countries rather than from the United States.
A May 21 memorandum from U.S. Citizenship and Immigration Services states that adjustment of status — the process of obtaining lawful permanent residency without leaving the country — is a matter of “administrative grace” and should be granted only after officers consider the totality of an applicant’s circumstances.
USCIS says the memo simply restates existing law. However, immigration attorneys and advocacy groups say it raises questions about whether some applicants, including military spouses and children, could be required to complete the process overseas.
The policy “will result in some aliens who do not merit the discretionary benefit ultimately applying with the Department of State overseas rather than USCIS in the United States,” the agency said in an unsigned email Thursday.
USCIS spokesman Zach Kahle described the policy more bluntly in a May 22 news release.
“From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances,” he wrote. “This policy allows our immigration system to function as the law intended instead of incentivizing loopholes.”
The memo creates confusion because some categories of immigrants have no practical way to pursue permanent residency outside the United States, said Margaret Stock, an Alaska-based immigration attorney who specializes in military-related immigration issues.
Among them are holders of K-1 visas, commonly known as the fiancé visa.
“K-1s are required to marry in the U.S. and adjust status in the U.S.; they do not have the option of going to a foreign consulate to adjust their status,” Stock told Stars and Stripes by email Wednesday. “That simply can’t be done as a legal matter.”
The agency did not directly answer questions about how the policy could affect military families but said it would not affect current green card holders and would not prevent immigrants who “legitimately and properly qualify” from obtaining permanent residency.
The memo said USCIS officers should consider factors such as family ties, immigration history, moral character and other relevant circumstances when deciding whether to approve an application.
USCIS said the policy would help reduce fraud and discourage people from remaining in the U.S. illegally after being denied residency.
Stock said the policy could also affect children seeking citizenship through the Child Citizenship Act. Children born overseas generally must first become lawful permanent residents while living in the United States with an American parent before acquiring citizenship.
“Now these children may be forced to go overseas and apply for an immigrant visa before they can acquire U.S. citizenship through their parents,” she said.
The American Immigration Council, a Washington-based advocacy organization said in a May 27 analysis that the memo leaves many questions unanswered and could subject pending applicants to greater scrutiny.
“Some of these scenarios could raise significant constitutional concerns,” the council wrote on its website.
