Immigrants applying for green cards — and those who hope to do so in the future — are panicking over a policy change U.S. Citizenship and Immigration Services (USCIS) announced last week.
But before making any rash decisions, applicants and would-be applicants should think twice: since when is this administration’s Department of Homeland Security press office a trustworthy source about immigration policy? The announcement merits a little more caution — as does any announcement from this administration that discourages people from applying for something that would offer them more rights and protections than they currently have.
Yes, the press release from the Department of Homeland Security was awfully declarative — saying immigrants seeking green cards “will” have to return to their home countries to apply. But the actual policy provided some crucial wiggle room — which creates both confusion about what will actually happen to green card applicants moving forward, and, crucially, a higher possibility of success for them than the administration wanted to admit.
And of course, any possibility of success is higher than zero, which is the possibility of success when people don’t apply at all.
Here’s how I would summarize the substance of last week’s USCIS announcement: People who could theoretically apply for a green card from abroad (“consular processing”) will face a much higher bar to apply from within the United States (“adjustment of status”) than they ever have before.
The substance of the policy memo itself was that instead of treating adjustment of status as a standard benefit (to be approved if someone meets the criteria for a green card,) it should instead be awarded only if the applicant deserves extraordinary “favorable discretion.” And it spelled out some criteria that should be counted against an applicant in making that decision, including having ever been in the U.S. without a formal immigration status. (My organization’s explainer on the memo is here, if you want to get a little wonkier.)
It is absolutely true that changing something that has been seen as straightforward to an act of extraordinary discretion is a big change. But the bottom line about discretionary standards is that a policy memo can never fully spell out exactly who will or won’t qualify. Many people won’t, but, crucially, some people will.
We can’t yet know whether any groups of immigrants will, in practice, be denied adjustment of status every time they apply; whether USCIS will be more skeptical of some groups than others; what a successful application would look like. We don’t even know for sure — and this is something the administration could clarify — whether the new memo will apply to the 1.2 million people (as of September 2025) who applied for adjustment of status already but were waiting in a processing backlog before the memo was issued.
There are already reports from immigration lawyers of applicants in the U.S. being asked to demonstrate that they face “extraordinary circumstances” meriting an exercise of discretion — but we won’t know what will meet that standard until we know how those cases are decided.
“When people are afraid to apply for something because of a new USCIS policy, it actually does far more harm than any denials caused by the policy itself.”
That’s why it’s so important to consider the presentation of this: a big press release and an exclusive in the administration-aligned Daily Caller, both of which made the policy seem a lot more black-and-white than it actually was. (After the memo was published Friday, the administration clarified that immigrants who provide “economic benefit” or serve the “national interest” will be allowed to adjust their status from within the U.S. — which confirms that the discretionary standard will let some people through, even as it leaves us in the dark for now about who those people might be.)
Consider also Tuesday’s announcement of a new initiative pushing Immigration and Customs Enforcement (ICE) to prosecute cases of alleged asylum fraud. In that case, they haven’t (as of this writing) published the memo in question – all we have is their press release about it – which, given their overstatements about the USCIS memo, makes it impossible to tell what the scope of the change will actually be.
This administration doesn’t need to publish every policy memo it writes. Indeed, it changed the entire interpretation of 4th Amendment law last year via a secret memo that was only shown to hand-selected ICE field agents. It certainly doesn’t publish a press release every time it does so.
A lot of people who could theoretically qualify for adjustment of status are going to hear or read about last week’s announcement. What many of them will conclude is that they “will have to” leave the U.S. if they want to apply for permanent residency. Some of those people will decide not to apply at all based on that.
That’s not good — and not necessary.
We have persuasive evidence that when people are afraid to apply for something because of a new USCIS policy, it actually does far more harm than any denials caused by the policy itself.
In Trump’s first term, the administration rolled out a new regulation changing the “public charge” standard — purportedly making it much harder for applicants for immigration status to prove that they wouldn’t be a drain on the United States, including by counting their use of certain public benefits against them.
The regulation was only in full effect for a few months in 2020 — which largely overlapped with the first months of the COVID pandemic — which makes its impact a little difficult to track. However, during the Biden administration, the government acknowledged that out of 47,555 applications processed while the rule was in effect, only five applications had been targeted for potential denial on public-charge grounds — and none of those applications had ultimately been denied. (Three were initially denied but reopened, and two were issued notices of “intent to deny” but also ultimately had their applications approved.)
However, while the rule was in effect, applications for family-based green cards — the category most likely to be targeted — fell by nearly half, from over 80,000 in January-March 2020 to just over 40,000 in April-June. (There is a dip in overall applications during that period, again due to COVID, but it’s much smaller: a 13 percent drop, not a 48 percent drop.)
In other words: no one was actually denied a green card based on the public-charge policy. But as many as 40,000 people may have been scared out of applying for one at all.
Last week’s policy memo could certainly result in more denials than the public-charge regulation did. But it’s likely that it will also result in people who would still be approved for adjustment of status, instead deciding not to try.
If you are considering applying for adjustment of status, or know someone who is, please have them talk to a reputable immigration lawyer or another professional who can point them in the right direction. And if you are one of those professionals — or in another position where you work with people who could be affected by this policy — please work proactively to get good information out there and not let the administration’s press shop dictate how people understand the new policy.
It is almost always safer to apply for something that gives you more rights and protects you more firmly from deportation than not to seek it out at all. That’s why the administration keeps hyping its denaturalization efforts, even though the actual numbers are so much lower than the hype would indicate. It’s why they made an announcement about green card vetting earlier this month that they admitted had affected only about 50 green-card holders.
Notice when their spin oversteps the law — when there’s a discrepancy — there’s an opportunity.
