WHAT'S GOING TO HAPPEN WITH MY AOS APPLICATION?
NOTHING. LITERALLY.
By now, everybody who has a stake is surely aware of the latest surprise from the Trump Administration - Policy Memorandum 602-0199 - which says that Adjustment of Status (AOS) is a matter of discretion and “administrative grace” - whatever that is. Well, I suppose the Trump people aren’t that graceful, because they have decided they just aren’t going to do it anymore.
The memo has a lot of case law attached to it, so I assume some smart anti-immigration lawyer looked at it and has articulated an argument that AOS isn’t the law. Other smart lawyers will disagree, and lawsuits will no doubt be filed on behalf of the many people in the 800,000 per year AOS queue, many of which – depending on the visa class - may have merits that will result in a stay, a reversal, or a slew of exceptions. I think that certain classes of would-be immigrants, such as the EB-5 applicant filing under the Reform and Integrity Act of 2022 (RIA), may have good arguments. For EB-5, I'd expect someone to argue that the explicit reference to concurrent filing in the RIA is de facto law making by Congress, and that the Administration can’t just change the law or rules with the stroke of a pen. If someone wants to pay me, I’ll start reading the cases and I’ll bring that lawsuit myself!
In the meantime, why would the Trump people do this? Most likely, they have a sense that many people use AOS to extend their iffy stays in the US pending resolution of the AOS. That’s likely a fair assumption. The Trump people then probably think that once AOS is denied, many of those people stay illegally. That may also be true. Also, the Trump people are thinking, these unlawfully present AOS seekers must be put in proceedings and deported, and the immigration courts are already overcrowded. Again, probably fair. So, I would imagine they have decided that, if we make everyone looking for permanent residence leave before we adjudicate their cases, we can avoid the ugliness and cost of deporting them. Maybe. But, let’s consider the mind of the shrewd aspiring immigrant with a questionable case for AOS. Why would that person ever leave the US? The smarter decision would be to just abandon the AOS application and stay illegally and take one’s chances that the next President will fix things. So this move may actually increase the amount of people unlawfully present. Who knows.
Most of the people I represent have a good chance of prevailing in their AOS or green card cases. How would it affect them? Four major ways: anxiety, cost, danger, and delay.
Anxiety – Many people on the AOS train have full, rich, and well-established lives here in the US. Asking them to leave it all behind and risk it all on a properly filed consular application will create a huge amount of anxiety. Will the consular officer be in a good mood? Are my papers in order? The applicant will think, “At least if my application were denied while I am in the US, I’d have better access to legal representation to fight it, more time to wrap up my affairs, and I wouldn’t have to scare my kids!”
Cost – Even if everything goes correctly, travel to a post where the visa can be adjudicated costs money. If there are problems, an applicant may have to sustain themself and their family in a place where they no longer have family or contacts while they work out the issues. What happens in the meantime with their jobs and lives in the US?
Danger – Some people leave their homelands for a reason. Burmese, for example, already subject to an adjudications freeze, may be subject to prosecution if they return to their country of origin. What about the Iranian doctor? The Chinese businessman no longer a friend of the socialist government? What of the Russian who has spoken out against Putin, or the Ukrainian kid? Can these people have their applications decided in other consular districts?
Delay – Presumably, applicants in the queue will eventually receive a notice that their I-485 AOS applications have been re-routed to the National Visa Center (NVC) for processing. NVC will in turn notify the applicant when a visa appointment is available in the consulate or embassy chosen for processing. But when? And then what?
NVC is a Department of State facility, and manpower has shrunk and delays have risen. Hundreds of Foreign Service Officers acting as Consular Officers (FSOs or ConOffs) have been already been let go by the Trump administration, including 250 just recently. The American Foreign Service Association (AFSA) estimates that as many as 2,000 FSOs have left the workforce, which was only about 10,000 at its height. Interview delays overseas already stretch from 3 months to over a year for many employment and immigration visas. It is hard to imagine that the Trump administration will rehire those people, especially since maintaining a single FSO overseas costs about $500,000 – way more than it costs to employ a USCIS adjudicator in the US.
So, nothing will likely happen to your AOS application until Trump is out of office. Literally… nothing will happen. In the meantime, continue renewing your EAD and Advance Parole. Preserve your current status. And root for the lawyers who will surely file challenges to this new policy. Trump USCIS Policy Memo