The memorandum issued by the United States Citizenship and Immigration Services (USCIS) requiring immigrants to apply for residency from their countries of origin, rather than in the United States, has spread fear among the immigrant community who have remained in the country beyond the expiration of their visas, as they risk triggering a 10-year re-entry ban.

But experts also estimate that the memorandum, which came into force immediately, has sparked concern among the business community.

"We don't know how this story will end. How it will be implemented. How the litigation against it will develop. So people must be prepared, they can proceed with their cases but with the support of an attorney," said Julia Gelatt, associate director of the immigration policy program at the Migration Policy Institute during the video conference "New Green Card Processing Rules Generate Fear and Chaos in Immigrant Communities," organized by American Community Media (ACoM).

"This memorandum calls into question whether this process of adjustment of status based on family ties with US citizens can continue. The most common case is that of people who adjust their status through a citizen spouse, but there are also adult children who arrive in the United States and remain in the country in various ways. Some people arrive with a temporary visa such as the fiancé visa," said Gelatt.

He explained that the purpose of this temporary visa is precisely to come to the United States, get married and then apply for permanent residence through the spouse.

"There are many temporary work and student visas, such as the H-1B visa or the F-1 student visa. People arrive with these visas and, after a few days, weeks, months or even several years in the United States, they can fall in love with a US citizen, get married and seek to obtain permanent residency through that spouse."

He indicated that, with the new memorandum, immigration officials are urged to exercise their discretion to reconsider whether these people should be able to obtain permanent residence within the United States or if they should process it abroad.

“People who could find themselves in a more complicated situation are those who arrive with a temporary visa that requires the intention to return to their country of origin; the student visa is an example of this.

“If, during those years in the United States, the person falls in love, marries a U.S. citizen, and applies for permanent residency, the government could argue, “Well, you told us you were going to return to your country, so maybe you should go back there to apply for your residency.”

On the other hand, he considered that those who are in the most difficult situation are those people who currently live in the United States without legal immigration status.

"They entered legally, but now they lack status. It is very likely that, under the current terms of this memorandum, they will be required to return to their country to complete consular processing instead of obtaining residency within the United States."

He said that another important aspect to keep in mind is that this memorandum contemplates shifting much of the USCIS workload to consulates abroad that do not have a plan to increase their staff to face this additional burden, so it is to be expected that, if the measure goes forward as drafted, there will be increasing delays in obtaining appointments for said consular interviews.

Another challenge is that, when applying for permanent residence within the country, if the government denies the request, there are more rights to challenge.

On the other hand, he said that, if the person is outside the United States, the principle of “non-consular review” comes into play, making it much more difficult to challenge the denial of a visa than the denial of a procedure carried out within the country.

Implications for employers and employees

Xiao Wang, co-founder and president of Boundless Immigration, said that, over the past few decades, more than half of all permanent residences granted to those who study or work legally and remain in the country have been processed within the United States.

"When analyzing the language of the memo from the perspective of the employer or the employee, it implies that the dual-intent categories that allow workers to legally reside in the US temporarily, such as the H-1B visa, while processing permanent residency, become more complicated. These categories encompass engineers, nurses, researchers, product leaders and medical teams."

However, he said footnote 20 of the memorandum states that maintaining legal status in a dual intent category is not sufficient in itself to justify a favorable exercise of administrative discretion.

“This adds a layer of confusion for everyone, since it does not specify which factors would be sufficient on their own.”

He explained that the usual argument regarding this is that there is always the possibility of requesting a visa from abroad through consular processing.

However, he said we know that's not a practical solution for most people.

He pointed out that not only do we have to consider the restrictions that affect 75 countries and similar issues, but also the fact that, in many cases, applicants could see their employment situation affected, since consular processing times can range from several months to years.

“This implies disrupting one's own life or that of one's family to wait for the process to conclude, which means that these workers must leave the United States without having a clear return date.”

As for American companies, this situation adds an additional complication to the investment made in these employees: they have hired, trained and sponsored them in all the previous H-1B visa procedures, extensions and the PERM process), investing years and thousands of dollars per case.

“There is now uncertainty about the future and how this will affect their operational plans; they are at risk of losing key staff especially those who have been here three, six or more years, as the entire corporate human capital planning cycle has been disrupted overnight and requires change.”

Finally, he mentioned that there are people with employment-based visas, particularly those who have been in the country for a long time with high incomes (the immigrant profile that this administration has repeatedly said it wants to continue attracting to the US) and who tend to have families, spouses and children with their own careers and derived work authorizations, situations that are now left in limbo.

“If applicants are forced to go abroad and their deadlines are altered, spouses may lose their work authorization and children run the risk of exceeding the permitted age limit, being forced to start the process again on their own, possibly in a country they have never known or inhabited.”

Ultimately, he explained that companies, students and immigrants have built a lifetime of plans spanning decades around this process, based on clear expectations about the steps necessary to legally continue in it.

International students typically follow a path from transitional opportunities to the H-1B visa, through the PERM process, and finally adjustment of status to permanent residency.

“Changing the rules mid-stream, without warning or time to adapt, will not only create increasing confusion among immigrants already here, but will also deter anyone considering taking this path.”

Subject to discretion

Jeff Joseph, president of the American Immigration Lawyers Association, said the main concern about the memo that specifically refers to section 245 of the law is that officials charged with exercising their discretion may interpret their authority in a negative way.

Who probably won't be affected?

Asylum seekers and refugees adjusting their status under an entirely different legal provision, section 209, should not be affected.

Special immigrant minors and NACARA refugees, Haitian citizens covered by the Haitian Relief Act, and persons adjusting status before an immigration court should also not be affected by this memorandum, as it applies specifically to USCIS decisions and not those of the immigration court.