10 ms·

The internal memo on this is interesting: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf http

by varenc 5mo ago

The internal memo on this is interesting: https://www.uscis.gov/sites/default/files/document/memos/PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf https://www.uscis.gov/sites/default/files/document/memos/PM-... Essentially they're trying to change the rules by aggressive re-interpretation of the existing legal framework, and not actually changing any laws or regulations. I don't follow all of it, but it seems to be arguing that the "ordinary consular process", leaving the country and applying for a visa from abroad, is the long-established default, and that "adjustment of status", where your immigration/green card status changes while you're already in the US, is merely an extraordinary exception and "a matter of discretion and administrative grace." Even though applying for a green card while in-country (an "adjustment") seems like the only sane and reasonable process. It feels goofy watching them marshal decades of prior case law to try to frame this as just a "reminder" rather than admitting this is a real change. (Since changing laws is harder I assume)

skeeter2020 5mo ago
Adjustment of Status has been on the books since the start in the 1950's, and was greatly expanded leading into what might turn out to be the high point of the country in the late 90's and early 2000's.
- drstewart 5mo ago
  Deregulation and union busting greatly expanded in the 80s leading to the high point of the country in the 90s as well.
  - jamespo 5mo ago
    [flagged]
    - drstewart 5mo ago
      1% says correlation is not causation
  - nroets 5mo ago
    And my theory is that the US only looked good because there were no competitors: Break up of the Soviet Union left the constituents without economies of scale. Similarly European markets were still desperately fragmented. China was growing, but from a low base. So capital flooded to the US. So we all have our own theories. The real question remains "What's best for America right now ?"
    - ViktorRay 5mo ago
      Soviet Union was never the place where large scale immigration happened. Actually the opposite. There were severe restrictions to emigration. They didn’t want people leaving the Soviet Union (or the satellite states) and going to the West. The Berlin Wall for example. Things weren’t so rosy behind the Iron Curtain.
      - nekusar 5mo ago
        For quite a while, the "Cost to renounce citizenship" was at $2350. Turnip lowered it back to $450. But no, US citizenship, like everything else in this country, a cost. https://www.cnn.com/2026/03/16/travel/renouncing-us-citizenship-fee-cut https://www.cnn.com/2026/03/16/travel/renouncing-us-citizens... And if you have unforgivable student loans because you believed the k-12 propaganda, then you can never "leave". You might be done paying them by the time you, uh, die.
- rayiner 5mo ago
  What “the books” say is that H1B is a “nonimmigrant” visa for people “temporarily” in the U.S. It’s right there in 8 USC 1101(a)(15)(H). “Adjustment of status” is an option at the discretion of the administration (8 USC 1255(a)): > The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence Note the “may” and the “in his discretion.” Basically, if the government really likes you, it can change your status. But that doesn’t change the primary purpose of the H1 visa from a temporary worker program into a permanent residency program.
  - FireBeyond 5mo ago
    > Note the “may” and the “in his discretion.” Basically, if the government really likes you, it can change your status. But that doesn’t change the primary purpose of the H1 visa from a temporary worker program into a permanent residency program. Where this falls apart is that the K-1 Fiance visa is also a non-immigrant visa, that through Adjustment of Statuses (based on your demonstration of a genuine and sincere relationship) becomes a green card pathway. All "may", "at their discretion", on a non-immigrant visa. But then what is the purpose of the K-1 visa? To allow you a US citizen then perhaps, maybe, one day, be allowed to stay in the same country as your spouse? At the government's discretion, of course?
    - LorenPechtel 5mo ago
      I've seen it decades ago. It wasn't "really likes you", but whether they believed you were seeking an adjustment of status because of a change in circumstances since your original entry. 40 years ago--we had no knowledge of each other's existence when she entered the US. Life put us in proximity, our hearts decided they wanted more proximity. Adjustment of status was granted. She's 20 feet from me as I write this.
    - rayiner 5mo ago
      The K visa actually proves my point, because someone on a K visa (by itself) isn’t eligible for adjustment of status at all! The K visa only allows admission for purposes of getting married within 90 days. Under 8 USC 1255(d), the AG can’t adjust the status of someone here on a K visa: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... If you don’t get married, you have to leave. What entitles alien spouses to petition for permanent residency is not the K1 visa, but section 1154: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1154&num=0&edition=prelim https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... So, for example, the citizen could marry their fiancé in the fiance’s home country.[1] And they’d use 1154 to petition for permanent residency. The K1 visa just allows the marriage to happen in the U.S. but is unrelated to the ultimate basis for permanent residency. [1] Our family friend did this. We set him up with the daughter of our next-door neighbor in Bangladesh. They had a wedding over the phone with him in the U.S. and her in Bangladesh. Then she came over on an 1154 petition.
testing22321 5mo ago
I don’t want to defend the cure administration, but it’s very common and normal for a country to require a person to leave to change status. Every time my Canadian work visa expired I had to drive over the border, enter the US, turn around and drive back to start the new one. The border guards call it “flag-poling” because you do a U turn around the flag pole. When I went from work visa to permanent resident I had to do it, in January, in Alaska, at -44 degrees and nasty ice on the roads. That border required 30km of driving through no man’s land before I got into Alaska. I asked the Canadian as I was leaving if I could just u turn his building and come back right now, and he was very firm I had to enter the US, even if for just 20 seconds. Nasty drive, but all ok
- array_key_first 5mo ago
  Okay but this has not been the case in the US and everyone knows that. We can try to make things up to rationalize why this being done. Or, we can be honest, and acknowledge these actors have proven themselves to be irrational. What is happening is that an end-goal is desired, and then the trump administration is working backwards to make it happen.
  - declan_roberts 5mo ago
    H1B as a visa status (and the one nearly everyone in this thread being affected by the green card status) is only 36 years old. The immigration act of 1999 very clearly created it as a temporary visa not a stepping stone to a green card. That's a modern invention.
    - array_key_first 5mo ago
      The "only" is doing A LOT of heavy lifting. Also, you're being a bit dishonest here, because this does not only apply to H1B visa holders. Also, are those people not the exact demographic that so-called "anti illegal" Republicans should want? They're highly educated and desirable, not welfare queens right? I will repeat my point. You have been lied to. The Republicans do not give even a single shit about what is legal and what is not. What they desire is less brown people, and then they work backwards to justify it. Any other interpretation is just not reasonable at this point, with the evidence we have been given.
timr 5mo ago
It’s a shame that I had to scroll past pages of invective and name-calling to get to your comment, which is the first one to substantively deal with the policy change. Like you, I tend to think this is a ham-handed move, but like one of the sibling comments, I also have to acknowledge that it’s common for other nations to require change-of-status applications happen outside the country. For example, Japan requires this for some (but not all!) visa modifications. Also, I’ve seen otherwise reliable sources making unsupported claims about this (e.g. “Existing applicants will lose their ability to apply again if they leave the country”) that aren’t clear from the minuscule amount of information that has been released so far. As usual with these debates, the content is far more heat than light.
- declan_roberts 5mo ago
  I think one of the primary divergences of thought happening here is whether H1B is indeed a temporary visa or whether it was meant to be a stepping stone to a green card. H1B is only 36 years old. The Immigration Act of 1990 always meant it to be a temporary status, which is why it is so easily imperiled.
  - deleted 5mo ago
    [deleted]
  - timr 5mo ago
    Yes, it's temporary, but the 1990 act explicitly established dual-intent, which clearly made the visa eligible for adjustment of status under INA 245. Nobody is really debating that fact, but the announcement memo is also not clear about what they're going to try to do in terms of actual administrative process. Part of the noise around this topic is that the administration just announced something vague with no detailed guidance, which leaves the door open for bad-faith interpretations by everyone.
    - trimethylpurine 5mo ago
      It's also necessary for media to exist as an industry. The objective of nearly all news articles is clicks, comments, and sharing. Bad-faith interpretation is by far the best way to increase the count of all of those things regardless of how detailed the guidance might be.
tootie 5mo ago
They have repeatedly taken incredibly broad if not downright delusional interpretations of legal precedent and used them to set policy. They literally tried to override a constitutional amendment (birthright citizenship) with an executive order. They have been laughed out of court many times but have won a shocking number of these ridiculous cases. This is just another one. Set the maximal policy that they want and make their opponents challenge it in court. It's legal until someone (with standing) stops them.
- declan_roberts 5mo ago
  H1b (the visa status of nearly everyone here affected by this change) is only 36 years old. We're not talking about ancient case law here.
  - jeremysalwen 5mo ago
    Is the legal precedent they are ignoring only 36 years old? No? I guess that makes us talking about case law older than 36 years then. (As we all know, laws less than 40 years old are option to follow anyways).
  - pseingatl 5mo ago
    [flagged]
    - mpweiher 5mo ago
      H1B is very explicitly a "dual intent" visa.
    - neofrommatrix 5mo ago
      Where has it been shown? Links?
- rayiner 5mo ago
  [flagged]
  - 5mo ago
jmyeet 5mo ago
So this is an example of being careful what you wish for. Neil Gorsuch's mother had to resign in disgrace as the EPA administrator under Reagan in a case that ultimately became what was called "Chevron deference" [1]. Chevron deference meant that when Congress wrote ambiguous statutes, courts would defer to the interpretation of the agencies responsible for enforcing them. Almost 40 years of laws were written with this standard in mind. Critics claimed Congress should be explicit but they know this is bullshit. Congress simply doesn't have the bandwidth to pass a law every time an agency wants to change a regulation and they know it. This is all about deregulation so companies are free to poison the air and water without fear of prosecution or lawsuits. It would allow, for example, a Federal circuit judge in Amarillo, Texas to issue a nationawide injunction on pretty much anything where before Federal judges had to defer to agencies. It has been Gorsuch's life mission to avenge his mother's humiliation. Overturning Chevron became a mission of the conservative movement and they finally succeeded in a case called Loper Bright [2]. As an aside, Gorsuch really should've recused himself from the case. A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead. So that's been the law of the land since Loper Bright. That creates a number of problems: 1. To change an agency rule now requires a complicated process unde rthe APA of proposing a rule change, getting public comment and generally following a statutory procedure. This administration that wanted Chevron overturned never does that. So under Chevron they probably could've done that. Now? Any memo like this can be challenged for failing to follow procedure. There have been cases where USCIS has had temporary injunctions imposed on them for this reason: the judges are saying USCIS is likely to lose; and 2. This memo is relying on a Supreme Court case that considered adjustment-of-status ("AoS") an act of "grace". Well, that precedent was set under Chevron. Chevron no longer applies. So which is it? Do you want Chevron deference or don't you? You can't have it both ways; 3. Millions of people have open cases under the previous rules and interpretations. Courts are likely to take a dim view of a retroactive rule change like this. New cases filed after this memo was released may not enjoy the same protections; and 4. There are people who cannot or should not leave the US to consular process. They may have incurred unlawful presence that will then get them a 3 or 10 year bar from returning. This bar may well apply if they have to consular process instead of do an AoS. Some people may not be able to leave (eg asylees). The wait time to get an interview at a local embassy or consulate varies wildly. In some cases it's already more than 12 months. If you add over a million current AoS cases to that, the wait times are going to explode. But the cruelty is the point. Also, decisions by consular officials have very limited ability to be challenged in court. That's also the point. This will be challenged in court. I think it will make it up to the Supreme Court as early as the next term and this court more than any probably in history bends over backwards to let the president do whatever he wants. [1]: https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura.... [2]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Raimondo https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...
deleted 5mo ago
[deleted]
dr_dshiv 5mo ago
Don’t you technically leave the nation when you enter an embassy?
- pseingatl 5mo ago
  No. This is a popular myth.
- stephen_g 5mo ago
  Not at all, no - embassies are granted special privileges but are still the territory of the country they are in.
justanotherjoe 5mo ago
Gives them the freedom to interpret it 'case by case' which is to mean punishing businesses and states not aligned with Trump with a million inconveniences, while leaving his base unmolested. The most divisive and punitive president ever.
rayiner 5mo ago
> Essentially they're trying to change the rules by aggressive re-interpretation of the existing legal framework, and not actually changing any laws or regulations. If you want to make that argument, you have to confront the fact that H1 is by its terms a “nonimmigrant” visa for people who are “temporarily” in the U.S. 8 USC 1101(a)(15)&(a)(15)(H). While adjustment of status was possible, it was never intended to be a de facto immigrant visa that typically leads to permanent residency. Note the law does also have immigrant visas which are designed to lead to permanent residency, such as E1 visas: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html https://travel.state.gov/content/travel/en/us-visas/visa-inf...
- canyp 5mo ago
  H1-B (I think H1 generally) is dual intent. https://fam.state.gov/FAM/09FAM/09FAM040210.html https://fam.state.gov/FAM/09FAM/09FAM040210.html
  - rayiner 5mo ago
    You have to think about what "dual intent" actually means. The relevant provision is 8 USC 1184(h): > (h) Intention to abandon foreign residence > The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 1258 of this title to a classification as such a nonimmigrant before the alien's most recent departure from the United States. What does the text in italics mean? It's there because having an intention to abandon your foreign residence makes you ineligible for a nonimmigrant visa, including H1B. All 1184(h) says is that a petition for permanent residency cannot by itself be used as "evidence of an intention to abandon a foreign residence" for purposes of renewing your H1 visa. That's all "dual intent" means. It's a fiction where you can keep saying "I intend to go back home after my temporary work in the U.S."--which remains a fundamental requirement of H1B status--and the government can't point to a permanent residency petition as evidence that you are intending to stay in the U.S. permanently. The law doesn't give the H1B holder any right or expectation of being granted permanent status. The law does have immigrant visas for people who can come here and say "I want to work here and seek permanent residency. I'm not intending to go back." H1B isn't like that.
softwaredoug 5mo ago
Not only is changing laws harder. Changing regulations requires following the Administrative Procedure Act. They might also be short circuiting APA - as in typical for this admin to attempt.
- rayiner 5mo ago
  What part of this memo changes the regulations? The punchline is this: “Where adjustment of status is in the discretion of USCIS, officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.” All the memo is saying is reminding USCIS officers that adjustment of status is an act of administrative grace and applicants aren’t entitled to have their status adjusted. That’s always been true.
  - varenc 5mo ago
    That is what the memo is trying to say. That no regulations or laws are changing, but it's simply pushing for a certain interpretation of the law that doesn't seem to have been the status quo for awhile. Some stats I found online report that ~60% of greencards are granted to people already living the US. This memo makes it seem like that route will now be much harder. So while its true that the law as written has always been true, they're definitely pushing for a change that will result in past behaviors no longer being true.
  - DiogenesKynikos 5mo ago
    > That's always been true. Except it is completely contrary to how the immigration system has worked in the US for decades. It is absolutely standard for people who are already in the US on other types of visas to apply for Green Cards.
    - portmanteur 5mo ago
      [flagged]
      - 5mo ago
motbus3 5mo ago
I wonder why all of this
T3RMINATED 5mo ago
[dead]

by varenc 5mo ago

skeeter2020 5mo ago

Adjustment of Status has been on the books since the start in the 1950's, and was greatly expanded leading into what might turn out to be the high point of the country in the late 90's and early 2000's.

drstewart 5mo ago
Deregulation and union busting greatly expanded in the 80s leading to the high point of the country in the 90s as well.
- jamespo 5mo ago
  [flagged]
  - drstewart 5mo ago
    1% says correlation is not causation
- nroets 5mo ago
  And my theory is that the US only looked good because there were no competitors: Break up of the Soviet Union left the constituents without economies of scale. Similarly European markets were still desperately fragmented. China was growing, but from a low base. So capital flooded to the US. So we all have our own theories. The real question remains "What's best for America right now ?"
  - ViktorRay 5mo ago
    Soviet Union was never the place where large scale immigration happened. Actually the opposite. There were severe restrictions to emigration. They didn’t want people leaving the Soviet Union (or the satellite states) and going to the West. The Berlin Wall for example. Things weren’t so rosy behind the Iron Curtain.
    - nekusar 5mo ago
      For quite a while, the "Cost to renounce citizenship" was at $2350. Turnip lowered it back to $450. But no, US citizenship, like everything else in this country, a cost. https://www.cnn.com/2026/03/16/travel/renouncing-us-citizenship-fee-cut https://www.cnn.com/2026/03/16/travel/renouncing-us-citizens... And if you have unforgivable student loans because you believed the k-12 propaganda, then you can never "leave". You might be done paying them by the time you, uh, die.
rayiner 5mo ago
What “the books” say is that H1B is a “nonimmigrant” visa for people “temporarily” in the U.S. It’s right there in 8 USC 1101(a)(15)(H). “Adjustment of status” is an option at the discretion of the administration (8 USC 1255(a)): > The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence Note the “may” and the “in his discretion.” Basically, if the government really likes you, it can change your status. But that doesn’t change the primary purpose of the H1 visa from a temporary worker program into a permanent residency program.
- FireBeyond 5mo ago
  > Note the “may” and the “in his discretion.” Basically, if the government really likes you, it can change your status. But that doesn’t change the primary purpose of the H1 visa from a temporary worker program into a permanent residency program. Where this falls apart is that the K-1 Fiance visa is also a non-immigrant visa, that through Adjustment of Statuses (based on your demonstration of a genuine and sincere relationship) becomes a green card pathway. All "may", "at their discretion", on a non-immigrant visa. But then what is the purpose of the K-1 visa? To allow you a US citizen then perhaps, maybe, one day, be allowed to stay in the same country as your spouse? At the government's discretion, of course?
  - LorenPechtel 5mo ago
    I've seen it decades ago. It wasn't "really likes you", but whether they believed you were seeking an adjustment of status because of a change in circumstances since your original entry. 40 years ago--we had no knowledge of each other's existence when she entered the US. Life put us in proximity, our hearts decided they wanted more proximity. Adjustment of status was granted. She's 20 feet from me as I write this.
  - rayiner 5mo ago
    The K visa actually proves my point, because someone on a K visa (by itself) isn’t eligible for adjustment of status at all! The K visa only allows admission for purposes of getting married within 90 days. Under 8 USC 1255(d), the AG can’t adjust the status of someone here on a K visa: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1255&num=0&edition=prelim https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... If you don’t get married, you have to leave. What entitles alien spouses to petition for permanent residency is not the K1 visa, but section 1154: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1154&num=0&edition=prelim https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... So, for example, the citizen could marry their fiancé in the fiance’s home country.[1] And they’d use 1154 to petition for permanent residency. The K1 visa just allows the marriage to happen in the U.S. but is unrelated to the ultimate basis for permanent residency. [1] Our family friend did this. We set him up with the daughter of our next-door neighbor in Bangladesh. They had a wedding over the phone with him in the U.S. and her in Bangladesh. Then she came over on an 1154 petition.

testing22321 5mo ago

I don’t want to defend the cure administration, but it’s very common and normal for a country to require a person to leave to change status. Every time my Canadian work visa expired I had to drive over the border, enter the US, turn around and drive back to start the new one. The border guards call it “flag-poling” because you do a U turn around the flag pole. When I went from work visa to permanent resident I had to do it, in January, in Alaska, at -44 degrees and nasty ice on the roads. That border required 30km of driving through no man’s land before I got into Alaska. I asked the Canadian as I was leaving if I could just u turn his building and come back right now, and he was very firm I had to enter the US, even if for just 20 seconds. Nasty drive, but all ok

array_key_first 5mo ago
Okay but this has not been the case in the US and everyone knows that. We can try to make things up to rationalize why this being done. Or, we can be honest, and acknowledge these actors have proven themselves to be irrational. What is happening is that an end-goal is desired, and then the trump administration is working backwards to make it happen.
- declan_roberts 5mo ago
  H1B as a visa status (and the one nearly everyone in this thread being affected by the green card status) is only 36 years old. The immigration act of 1999 very clearly created it as a temporary visa not a stepping stone to a green card. That's a modern invention.
  - array_key_first 5mo ago
    The "only" is doing A LOT of heavy lifting. Also, you're being a bit dishonest here, because this does not only apply to H1B visa holders. Also, are those people not the exact demographic that so-called "anti illegal" Republicans should want? They're highly educated and desirable, not welfare queens right? I will repeat my point. You have been lied to. The Republicans do not give even a single shit about what is legal and what is not. What they desire is less brown people, and then they work backwards to justify it. Any other interpretation is just not reasonable at this point, with the evidence we have been given.

timr 5mo ago

It’s a shame that I had to scroll past pages of invective and name-calling to get to your comment, which is the first one to substantively deal with the policy change. Like you, I tend to think this is a ham-handed move, but like one of the sibling comments, I also have to acknowledge that it’s common for other nations to require change-of-status applications happen outside the country. For example, Japan requires this for some (but not all!) visa modifications. Also, I’ve seen otherwise reliable sources making unsupported claims about this (e.g. “Existing applicants will lose their ability to apply again if they leave the country”) that aren’t clear from the minuscule amount of information that has been released so far. As usual with these debates, the content is far more heat than light.

declan_roberts 5mo ago
I think one of the primary divergences of thought happening here is whether H1B is indeed a temporary visa or whether it was meant to be a stepping stone to a green card. H1B is only 36 years old. The Immigration Act of 1990 always meant it to be a temporary status, which is why it is so easily imperiled.
- deleted 5mo ago
  [deleted]
- timr 5mo ago
  Yes, it's temporary, but the 1990 act explicitly established dual-intent, which clearly made the visa eligible for adjustment of status under INA 245. Nobody is really debating that fact, but the announcement memo is also not clear about what they're going to try to do in terms of actual administrative process. Part of the noise around this topic is that the administration just announced something vague with no detailed guidance, which leaves the door open for bad-faith interpretations by everyone.
  - trimethylpurine 5mo ago
    It's also necessary for media to exist as an industry. The objective of nearly all news articles is clicks, comments, and sharing. Bad-faith interpretation is by far the best way to increase the count of all of those things regardless of how detailed the guidance might be.

tootie 5mo ago

They have repeatedly taken incredibly broad if not downright delusional interpretations of legal precedent and used them to set policy. They literally tried to override a constitutional amendment (birthright citizenship) with an executive order. They have been laughed out of court many times but have won a shocking number of these ridiculous cases. This is just another one. Set the maximal policy that they want and make their opponents challenge it in court. It's legal until someone (with standing) stops them.

declan_roberts 5mo ago
H1b (the visa status of nearly everyone here affected by this change) is only 36 years old. We're not talking about ancient case law here.
- jeremysalwen 5mo ago
  Is the legal precedent they are ignoring only 36 years old? No? I guess that makes us talking about case law older than 36 years then. (As we all know, laws less than 40 years old are option to follow anyways).
- pseingatl 5mo ago
  [flagged]
  - mpweiher 5mo ago
    H1B is very explicitly a "dual intent" visa.
  - neofrommatrix 5mo ago
    Where has it been shown? Links?
rayiner 5mo ago
[flagged]
- 5mo ago

jmyeet 5mo ago

So this is an example of being careful what you wish for. Neil Gorsuch's mother had to resign in disgrace as the EPA administrator under Reagan in a case that ultimately became what was called "Chevron deference" [1]. Chevron deference meant that when Congress wrote ambiguous statutes, courts would defer to the interpretation of the agencies responsible for enforcing them. Almost 40 years of laws were written with this standard in mind. Critics claimed Congress should be explicit but they know this is bullshit. Congress simply doesn't have the bandwidth to pass a law every time an agency wants to change a regulation and they know it. This is all about deregulation so companies are free to poison the air and water without fear of prosecution or lawsuits. It would allow, for example, a Federal circuit judge in Amarillo, Texas to issue a nationawide injunction on pretty much anything where before Federal judges had to defer to agencies. It has been Gorsuch's life mission to avenge his mother's humiliation. Overturning Chevron became a mission of the conservative movement and they finally succeeded in a case called Loper Bright [2]. As an aside, Gorsuch really should've recused himself from the case. A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead. So that's been the law of the land since Loper Bright. That creates a number of problems: 1. To change an agency rule now requires a complicated process unde rthe APA of proposing a rule change, getting public comment and generally following a statutory procedure. This administration that wanted Chevron overturned never does that. So under Chevron they probably could've done that. Now? Any memo like this can be challenged for failing to follow procedure. There have been cases where USCIS has had temporary injunctions imposed on them for this reason: the judges are saying USCIS is likely to lose; and 2. This memo is relying on a Supreme Court case that considered adjustment-of-status ("AoS") an act of "grace". Well, that precedent was set under Chevron. Chevron no longer applies. So which is it? Do you want Chevron deference or don't you? You can't have it both ways; 3. Millions of people have open cases under the previous rules and interpretations. Courts are likely to take a dim view of a retroactive rule change like this. New cases filed after this memo was released may not enjoy the same protections; and 4. There are people who cannot or should not leave the US to consular process. They may have incurred unlawful presence that will then get them a 3 or 10 year bar from returning. This bar may well apply if they have to consular process instead of do an AoS. Some people may not be able to leave (eg asylees). The wait time to get an interview at a local embassy or consulate varies wildly. In some cases it's already more than 12 months. If you add over a million current AoS cases to that, the wait times are going to explode. But the cruelty is the point. Also, decisions by consular officials have very limited ability to be challenged in court. That's also the point. This will be challenged in court. I think it will make it up to the Supreme Court as early as the next term and this court more than any probably in history bends over backwards to let the president do whatever he wants. [1]: https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura.... [2]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Raimondo https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...

deleted 5mo ago

[deleted]

dr_dshiv 5mo ago

Don’t you technically leave the nation when you enter an embassy?

pseingatl 5mo ago
No. This is a popular myth.
stephen_g 5mo ago
Not at all, no - embassies are granted special privileges but are still the territory of the country they are in.

justanotherjoe 5mo ago

Gives them the freedom to interpret it 'case by case' which is to mean punishing businesses and states not aligned with Trump with a million inconveniences, while leaving his base unmolested. The most divisive and punitive president ever.

rayiner 5mo ago

> Essentially they're trying to change the rules by aggressive re-interpretation of the existing legal framework, and not actually changing any laws or regulations. If you want to make that argument, you have to confront the fact that H1 is by its terms a “nonimmigrant” visa for people who are “temporarily” in the U.S. 8 USC 1101(a)(15)&(a)(15)(H). While adjustment of status was possible, it was never intended to be a de facto immigrant visa that typically leads to permanent residency. Note the law does also have immigrant visas which are designed to lead to permanent residency, such as E1 visas: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/all-visa-categories.html https://travel.state.gov/content/travel/en/us-visas/visa-inf...

canyp 5mo ago
H1-B (I think H1 generally) is dual intent. https://fam.state.gov/FAM/09FAM/09FAM040210.html https://fam.state.gov/FAM/09FAM/09FAM040210.html
- rayiner 5mo ago
  You have to think about what "dual intent" actually means. The relevant provision is 8 USC 1184(h): > (h) Intention to abandon foreign residence > The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 1258 of this title to a classification as such a nonimmigrant before the alien's most recent departure from the United States. What does the text in italics mean? It's there because having an intention to abandon your foreign residence makes you ineligible for a nonimmigrant visa, including H1B. All 1184(h) says is that a petition for permanent residency cannot by itself be used as "evidence of an intention to abandon a foreign residence" for purposes of renewing your H1 visa. That's all "dual intent" means. It's a fiction where you can keep saying "I intend to go back home after my temporary work in the U.S."--which remains a fundamental requirement of H1B status--and the government can't point to a permanent residency petition as evidence that you are intending to stay in the U.S. permanently. The law doesn't give the H1B holder any right or expectation of being granted permanent status. The law does have immigrant visas for people who can come here and say "I want to work here and seek permanent residency. I'm not intending to go back." H1B isn't like that.

softwaredoug 5mo ago

Not only is changing laws harder. Changing regulations requires following the Administrative Procedure Act. They might also be short circuiting APA - as in typical for this admin to attempt.

rayiner 5mo ago
What part of this memo changes the regulations? The punchline is this: “Where adjustment of status is in the discretion of USCIS, officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.” All the memo is saying is reminding USCIS officers that adjustment of status is an act of administrative grace and applicants aren’t entitled to have their status adjusted. That’s always been true.
- varenc 5mo ago
  That is what the memo is trying to say. That no regulations or laws are changing, but it's simply pushing for a certain interpretation of the law that doesn't seem to have been the status quo for awhile. Some stats I found online report that ~60% of greencards are granted to people already living the US. This memo makes it seem like that route will now be much harder. So while its true that the law as written has always been true, they're definitely pushing for a change that will result in past behaviors no longer being true.
- DiogenesKynikos 5mo ago
  > That's always been true. Except it is completely contrary to how the immigration system has worked in the US for decades. It is absolutely standard for people who are already in the US on other types of visas to apply for Green Cards.
  - portmanteur 5mo ago
    [flagged]
    - 5mo ago

motbus3 5mo ago

I wonder why all of this

T3RMINATED 5mo ago

[dead]