How a proposed green card application policy change would disrupt lives by assuming legal immigrants are evading the law

To see why this matters, picture a British woman, let’s call her Lucy, who comes to the U.S. on a student visa to earn her Ph.D. at Ohio State University. During her studies, she falls in love with Mike, an American engineer, and they marry. Under long-standing practice, Lucy could apply for her green card right in Ohio without uprooting her life.

The new policy memorandum, however, could force families like hers to make wrenching choices, sending one member of a couple out of the country with no guarantee they would be allowed back in.

As law professors who study the legal procedures relating to citizenship and immigration, we see this shift as a significant departure from how the system has worked for decades.

Congress built what’s called “adjustment of status” – the shift from one immigration status to another – into the immigration legal framework as a pathway to permanent residency. A policy memo cannot cut off that avenue.

Instead, what is being proposed by the Trump administration would require congressional action or agency rule-making that follows the proper procedural steps. The hundreds of thousands of people every year who have been clearing the legal requirements of adjustment of status cannot have their rights cut off arbitrarily.

Separation, disruption

Approximately 54%, or 608,260, of the 1.17 million new lawful permanent residents in fiscal year 2023 received a green card from within the United States.

But now, the draft policy emphasizes that those who entered the United States as nonimmigrants – such as people on student visas, who stated that they would be leaving the country once their education was finished – “are generally expected to pursue an immigrant visa and admission from outside the United States if they wish to reside permanently in this country.”

Applying from within the United States, as Lucy sought to do in the hypothetical example above, would be seen by officials as a negative element – a strike against granting the green card – that would need to be balanced out by what officials deem extraordinary counterevidence, such as sufficient family ties, hardship or length of residence in the United States, for the applicant to succeed.

The memo deems application from within the U.S. a red flag, calling such an application an “attempt to avoid the ordinary consular immigrant visa process,” implying that the immigrant hid their intention to immigrate when they obtained the nonimmigrant visa.

If the memo becomes implemented as official policy, individuals like Lucy would be expected to return to their country – in her case, the U.K. – to apply for a green card.

This could take a substantial amount of time. She would thus need to interrupt her studies, which her university may or may not allow for her to complete the degree. Her husband, Mike, would get the choice of being geographically separated from his spouse indefinitely or disrupting his own career in Ohio, with his employer potentially not letting him return to the job. The family would face even more disruption if Lucy and Mike had children.

Unsupported implications

Even if the process to get a green card goes smoothly, it can easily take over a year from applying to receiving the status symbolized by the card.

Spending over a year in the home country while waiting for the application to be resolved is a massive disruption for any individual or family. The policy memorandum justifies this by stating that seeking a green card from inside the United States is founded on applicants’ desire to evade the normal immigrant visa process, “usually accompanied by their violation of our immigration laws.”

In other words, the U.S. Citizenship and Immigration Services believes that certain people applying for green cards from inside the country – the ones who came here saying their time in the U.S. was limited – are trying to cheat the system.

The agency, however, provides no support in the policy memorandum for its claim that most individuals who seek a shift from a temporary status to a permanent one have done anything illegal.

To the contrary, the document acknowledges that such an adjustment of status already can be used only by individuals who have been either inspected and admitted or inspected and paroled, both lawful processes. And it gives no evidence for the accusation that most such individuals have done anything illegal since.

The memo also implies that all applicants for green cards who were previous holders of nonimmigrant visas – such as students and tourists, but also performing artists, athletes coming to compete, diplomats and their staff – should expect greater scrutiny in the future. It treats the move from nonimmigrant to immigrant status as highly unusual. That’s despite the fact that over half a million people a year have routinely benefited from such transitions.

A substantial number of those applicants would now be treated with greater suspicion about their original intentions. They would likely also need to take on tremendous burdens, including spending months or even years separated from a spouse or children while waiting abroad; interrupting or abandoning a degree, a job, or a career; and gambling on whether they’ll be allowed back into the U.S. at all, since consular processing abroad carries the risk of a denial with no easy appeal.

Legal change or intimidation?

The largest group already in the U.S. that may avoid having to leave the country to apply for green cards is those who came to the U.S. on temporary work visas. But even they will likely face a tougher process to get a green card, and they may also face longer processing times than in the past.

Many questions have been raised about the legality of this new policy, including if it were to end up changing how pending applications are treated. Some analysts say that Congress did not intend to make the shift to immigrant status “extraordinary” and rare, as the memo claims.

Commentators – including ones who used to work at the Department of Homeland Security – have stated that, as with other announcements during the second Trump administration, the real goal may be to discourage immigration rather than effecting direct policy changes.

One immigration attorney wrote, “These policies send a clear anti-immigrant message intended to intimidate and drive undocumented immigrants to self-deport.” Another immigration lawyer called the memo legally “bonkers” and its text an “incoherent word salad.”

A number of immigration law firms are encouraging people to continue applying for adjustment of status as they had been. They are also cautioning applicants to “ensure, however, that their social media activity does not include any actions or statements that could be deemed problematic by the U.S. government.”

If the administration’s goal was to put immigrants on pins and needles, that has likely already been accomplished.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Irina D. Manta, Hofstra University and Cassandra Burke Robertson, Case Western Reserve University

Read more:

• Justice Department’s effort to strip citizenship from naturalized Americans could face widespread judicial pushback
• Trump’s idea to use military to deport over 10 million migrants faces legal, constitutional and practical hurdles
• A long‑running immigration problem: The government sometimes detains and deports US citizens

The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.