Does anyone understand the new USCIS memo?

The new memo saying you have to do consular processing before you can adjust status in the US.

https://www.uscis.gov/newsroom/news-...-extraordinary

doesnt apply to C33

Says who? It is for everyone trying to adjust inside the US, no?

Just my luck that I get married and have to deal with a 39 country ban and now this SMH.

Project 2025 in action.
MAGA and Republicans are against legal immigration just as much as they are against illegal immigration.

If you are on DACA and still support MAGA, go fuck yourself.

This was posted by a lawyer on reddit and a good summary based on what everyone knows so far:

The legal jargon. I am Burke Brown III, managing attorney at Polaris Law Group. I am an attorney, not your attorney. This is not legal advice. I have had a little time to break down the memo and I want to help calm the waters a bit.

First, adjustment of status is not "dead."

This is an unsigned memo quoting two BIA cases from the 70s. Its legal foundation is almost as strong as my first law school memo (every lawyer will chuckle). It quotes section 245(a) as supporting law and then goes on to completely ignore the actual text of 245(a). The executive is not able to re-write the laws. They cannot add a standard of "by a showing of unusual or even outstanding equities" when it is clearly contrary to the statutes. We will fight this in federal court, just like we fought (and won) on EWI bond jurisdiction. Our team is waiting for a case to litigate. I hope that case doesn't come, but I'm excited to take the fight if it does. (This is only an actionable suit if the issue is "ripe." We have to show that harm has occurred through a denial or acknowledged delay. I don't get many denials, and I don't want to start now.)

What are they trying to accomplish with this memo?

Ease the burden on the affirmative immigration system (USCIS) by causing people to "give up" and go home.

This has been a common theme since January 2025. EADs and TPS applications are not being adjudicated. HR1 gutted the ability for people to maintain work authorization during their lawful period of stay. Lawful immigration is being squeezed in every way possible. People that should be eligible to adjust are being detained at interviews for no apparent reason. ICE is being used as a public show of force against liberal and moderate communities. This administration is doing everything it can to get people to give up before trying.

2. USCIS is trying to force cases outside the jurisdiction of the Courts and attorneys.

I always attend interviews with clients. I am willing to fly across the county to attend adjustment interviews. I have stopped cases from derailing. My presence ensures my client won't get railroaded. I know the queues to look for. I've done this hundreds of times. I can take notes and law the record for an appeal. The government is acting like a bully. Bullies want soft targets. Attorneys are not allowed to attend consular appointments (even if the client could afford to fly us out to the consulate). They are trying to "do away" with the right to counsel by shifting the processing to DOS.

There is also the issue of consular nonreviewability. You are unable to bring a federal lawsuit for consular misconduct or arbitrary and capricious decision making. This admin has his behind it repeatedly. This is why they are attacking I-130 + 601a processing.

3. The memo only quotes BIA cases from pre 1980 for a reason: it does not reflect the current law or INA (IIRAIRA passed in 1996, quoting congressional intent from the 70s is irrelevant).

There is a reason their star case is from the 1970s. It doesn't reflect the congressional intent of the INA. IIRAIRA was passed in 1996. When the case (that their entire argument is based on) was decided, there were no 3, 5, and 10 year bars. Consular processing was the typical way to go. However, that changed when Congress passed IIRAIRA, added the bars, and reformed 245(a) to bolster adjustment of status. What they did was looked through the tens of thousands of cases and pulled a case that had a ruling that fit their argument without checking whether it was later distinguished by legal or factual changes. This is a common error for first year law students (bringing back memories of that 1l memo). I also believe that this is what will doom them in federal court.

What are we doing to address this?

My team is going through every pending AOS to add positive discretionary factors. How can we prepare for the alleged RFEs and questions at interviews? By being prepared ahead of time.

We will have a blunt conversation with every client before we file. We will explain that the law says x, but USCIS is saying Y. We advise going forward, but it could take extensive time and $ if we need to litigate in federal court. We take every case on knowing that we might need to litigate it in federal court. We are not passive. Passive does not help families. Passive does not protect rights.

Is now a good time to file for adjustment of status?

If you qualify? Yes. Yesterday was better than today and a year ago was better than yesterday. Stop worrying about things you can't control. Control what you can control. Is it going to be more expensive? Yes. Is this another reason to file with a legitimate attorney instead of self filing or going with a notario? Probably, but only you can make that value judgement.

Please, do not send me case specific questions through DM. Email me at [email protected]. Just because you email me doesn't create an attorney client relationship, it only preserves confidentiality.

AKA, they are trying to limit illegal and legal immigration as much as possible to push their white supremacy agenda.

I’ve been taking this apart and honestly, I think this was either written by AI, written by a complete moron, or written by a moronic AI. A lot of these cases are picked out solely due to having words and phrases like “extraordinary” “act of grace” appearing together with “adjustment of status”. Citations are even worse; every single of these cases has some other factors that weighed negatively or were outright statutory bans, with many quotations being taken out of context. It’s the biggest and most verbose nothingburger I’ve ever seen, just meant to scare people. There is no case here that is just the government going "nuh uh".



Chen v. Foley (6th circuit, 385 F.2d 929; 1967) – multiple petitions, either pulled or invalid, AOS denied without even reaching the question of discretion.
Matter of Blas (BIA – 1974, AG – 1976, 15 I&N Dec. 626, 628) – While not called Misrep it’s basically misrep, entered US on a tourist visa, didn’t disclose his USC adoptive parents while applying for said visa. Quoted “[adjustment] was not designed to supersede the regular consular visa-issuing process or to be granted in non-meritorious cases.” in the context that one shouldn’t use a tourist visa to leapfrog over consular process, something that still holds today.
Patel v Garland (SCOTUS, 596 U.S. 328, 332; 2022) - false claim of citizenship, there is some hand-wriggling about appealing the fact finding part of the proceedings. which the supreme court dodges by hiding behind AOS technically being discretionary. Quoted “because relief from removal is always a matter of grace, even an eligible noncitizen must persuade the immigration judge that he merits a favorable exercise of discretion” which is used by the Supreme Court while discussing legal background to skip over re-litigating whether a false claim of citizenship happened.
Kucana v Holder (SCOTUS, 558 U.S. 233, 247; 2010) - Here SCOTUS actually reversed the circuit court's denial of petition for review and granted reopening of proceedings on the basis that courts have review powers over matters not explicitly foreclosed by statute.
Elkins v Moreno (SCOTUS, 435 U.S. 647, 667; 1978) - interestingly enough the case citation "forgets" to list the year (1978), case itself is about instate tuition in Maryland for a G-4 visa holder. Any mention of AOS in this case is probably just in dicta. Of note is the quote (“adjustment of status is a matter of grace, not right”) is being used severely out of context:
‘Although adjustment of status is a matter of grace, not right, the most recent binding decision of the Board of Immigration Appeals states:
"Where adverse factors are present in a given application, it may be necessary for the applicant to offset these by a showing of unusual or even outstanding equities. Generally, favorable factors such as family ties, hardship, length of residence in the United States, etc., will be considered as countervailing factors meriting favorable exercise of administrative discretion. In the absence of adverse factors, adjustment will ordinarily be granted, still as a matter of discretion."
Matter of Arai, 13 I. & N.Dec. 494, 496 (1970) (emphasis added), modifying Matter of Ortiz-Prieto, 11 I. & N.Dec. 317 (BIA 1965). ‘
Santos-Zacaria v Garland (SCOTUS, 598 U.S. 411, 426; 2023) - here SCOTUS vacated and remanded a denial of a petition for review, ironically the "as a right" quotation in this case is used to construe why 5th Cir's denial is nonsense because a petition for review has to exhaust review available as a right first and asking for a reconsideration from the BIA is a matter of BIA's discretion.
Patel v INS (7th circuit, 738 F.2d 239, 242; 1984) - While not outright stated it seems like a misrepresentation since the petitioner started working without authorization very shortly after entering US as an F-1 which seems to be the reason for INS, IJ, and BIA to deny AOS. Quote is outright lifted from Wing Ding Chan.
Mamoka v INS (5th circuit, 43 F.3d 184, 188; 1995) – Weird case, messy immigration history, denial of reopening just for VD, which makes sense considering that Mamoka was likely just playing for time.
Wing Ding Chan v INS (DC circuit, 631 F.2d 978, 980, 1980) - Misrep
Eun-Hee Lee v. US (District Court for District of Columbia), 651 F.Supp. 1264, 1267, 1987) - Denied EAD due to EB-3 petition being improperly filed.
Abdullaeva v. Garland (District Court for Northern District of Ohio, 1:23-cv-741, 2023 WL 7221935, 2023) - Denied mandamus on I-485 because 11 months is not long enough, later also used in a citation for this quote (“[b]ecause this form of relief circumvents ordinary immigration procedures, it is extraordinary and will be granted only in meritorious cases, and the burden is on the immigrant to prove that his case is meritorious”); issue at hand is that the extraordinary relief in this case is the mandamus review.
Jain v INS (2nd circuit, 612 F.2d 683, 687; 1979) - Misrep
Kim v Meese (9th circuit, 612 F.2d 683, 687; 1987) - EB-5 AOS rescinded on the basis of petitioner having sold his stake in the investment business prior to AOS
Randall v Meese (DC circuit, 854 F.2d 472, 474; 1988) – Interesting case, US born citizen who lost citizenship in 1966 due to swearing allegiance to Mexico, denied AOS in 1985 due to being a communist or anarchist. Law changed in 1988, DC circuit denied the review on technical grounds: the change of law should be taken up with INS first.
Rashtabadi v INS (9th circuit, 23 F.3d 1562, 1567–68; 1994) – Denied a criminal waiver
Howell v INS (2nd circuit, 72 F.3d 288, 291; 1995) - Misrep, denied I-601 filed with I-485
Eide-Kahayon v INS (9th circuit, 86 F.3d 147, 150; 1996) - Misrep, bigamy
Ayanian v Garland (9th circuit, 64 F.4th 1074, 1081, 2023) – Missed deadline to file for asylum, didn’t prove eligibility for withholding of removal or CAT relief, denied reopening on the basis that he didn’t prove significant change of conditions in Armenia
Baez v. US (District Court for District of Oregon 715 F. Supp. 2d 1165, 1181; 2010) – Denied CCA adjustment due to missing an RFE or NOID. The quote is used in context that burden of proof is on applicant.
Vukov and Singh v. DHS (District Court for Central District of California, 11-cv-325 PA-SSx, 2013 WL 1246814; 2013) and appeal Vukov v DHS (9th circuit, 561 F.App'x 648; 2014) – Denied class action mandamus. The quote doesn’t appear in either order
Sanchez-Trujillo v. INS (District Court for Western District of North Carolina, 632 F. Supp. 1546, 1553; 1986) – This is a funny one, INS denied the I-130 due to legal error regarding legitimation of children, the court ordered the I-130 approved and USCIS to let the plaintiff file a new I-485 as an F2A. It looks like it was swept up due to just searching for keywords.
Lee vs USCIS (4th circuit, 592 F.3d 612; 2010) – Denied 245(i) adjustment, challenging 8 CFR 245.10(j), which is 245(i) eligibility vs substituted beneficiaries. I believe this was put into effect in 2006 and you had more than a few who got to adjust via 245(i) on a petition they were substituted onto after the sunset date. Quote is again out of context considering that the overall context is 245(i), this references In Re Briones (BIA, 24 I&N Dec. 355; 2007) where we find this gem:
Congress has generally limited the availability of adjustment of status to aliens who have been “inspected and admitted or paroled into the United States.” Section 245(a) of the Act. The purpose of this “inspection and admission” requirement is to discourage intending immigrants from moving to the United States before becoming fully eligible for permanent residence and to encourage them to follow the orderly consular process for the issuance of immigrant visas. By the early 1990s, however, Congress had determined that the inspection and admission requirement had become an undesirable impediment to the acquisition of permanent resident status by many close relatives of the more than 2.5 million aliens whose immigration status had been “legalized” pursuant to section 201(a) of the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, 100 Stat. 3359, 3394 (codified at section 245A of the Act, 8 U.S.C. § 1225a). Because of the inspection and admission requirement, many close family members of these legalized aliens were obliged to leave the United States so that they could apply for an immigrant visa at a consulate or embassy abroad, placing a significant administrative burden on the resources of the State Department and exposing the aliens themselves to considerable personal expense. See Adjustment of Status to That of Person Admitted for Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility, 59 Fed. Reg. 51,091, 51,092 (Oct. 7, 1994), 1994 WL 543334.
Matter of Tanahan (BIA, 18 I. & N. Dec. 339, 342; 1981) – denied admission due to immigrant intent, parole for removal, absconded, returned, later denied AOS on basis of basically a misrep
Matter of Benitez (BIA, 2018) – Appears to be unpublished
Matter of Krkuti (BIA, 2008) – Appears to be unpublished
Matter of Mendez-Moralez (BIA, 21 I&N Dec. 296, 300, 1996) – Denied a criminal waiver
Matter of Castillo-Perez (BIA, 27 I&N. Dec. 664, 667, 2019) – Denied cancellation of removal on the account of failing the good moral character test due to multiple DUIs.