Topic: Critical Immigration Policy Alert – Overruling of Matter of Arrabally and Yerrabelly

CRITICAL ADVISORY

If you or a loved one currently hold an approved Advance Parole travel document (Form I-512L) or are planning to travel abroad using Advance Parole, STOP and read this immediately.

On August 13, 2026, the Board of Immigration Appeals (BIA) issued a decision in Matter of Delcarmen-Lara that completely changes 14 years of established immigration law. Traveling outside the United States on Advance Parole if you have a history of unlawful presence could now trigger a 3-year or 10-year bar to re-entry, blocking your ability to return or get a Green Card.

Do NOT leave the United States without having an experienced immigration attorney review your full case history first.

1. What Happened? The New BIA Decision Explained

In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA officially overruled its 2012 landmark decision, Matter of Arrabally and Yerrabelly.

• The Old Rule (Arrabally & Yerrabelly, 2012–2026): For over a decade, the law stated that leaving the U.S. temporarily on a grant of Advance Parole did not count as a "departure" for the purposes of triggering unlawful presence bars under INA § 212(a)(9)(B). This allowed DACA recipients, TPS holders, and individuals with pending adjustment of status applications to travel abroad safely without triggering 3- or 10-year re-entry bans.

• The New Rule (Delcarmen-Lara, August 2026): The BIA ruled that the plain text of the Immigration and Nationality Act (INA) contains no exception for Advance Parole. Under the new rule, any trip outside the U.S. under Advance Parole IS considered a statutory "departure."

2. What Does This Mean in Practical Terms for Non-Lawyers?

To understand how this affects you, here is a breakdown in plain language:

A. The "Unlawful Presence" 3-Year & 10-Year Bars

Under U.S. federal immigration law (INA § 212(a)(9)(B)):

• If you stay in the U.S. without lawful status for more than 180 days but less than 1 year after turning 18, and then leave the U.S., you trigger a 3-year bar on re-entry.

• If you stay in the U.S. without lawful status for 1 year or more after turning 18, and then leave the U.S., you trigger a 10-year bar on re-entry.

B. The Advance Parole "Trap"

• Before this decision: Advance Parole acted as a safe mechanism. Even if you had 5 years of unlawful presence, traveling on Advance Parole did not trigger the 10-year bar. Many people used this travel to return lawfully (paroled) and then apply for a Green Card inside the U.S.

• Now: The physical act of crossing the border to go abroad—even with official Advance Parole paperwork in hand—will trigger the 3-year or 10-year bar if you accrued unlawful presence before leaving. When you attempt to re-enter or apply for permanent residence (a Green Card), USCIS or Border Patrol can deem you inadmissible.

3. Who Is Most at Risk?

You are at high risk of triggering a re-entry bar if you leave the country under Advance Parole and fall into any of these categories:

1. DACA Recipients: Anyone who received DACA after turning 18½ years old (meaning you accumulated more than 180 days of unlawful presence before getting DACA).

2. TPS Beneficiaries: Individuals holding Temporary Protected Status who had periods of unlawful presence prior to obtaining TPS.

3. Pending Green Card Applicants: Individuals adjusting status through family or employment who had past periods of unlawful presence in the U.S.

4. Anyone with Prior Deportation/Removal Orders: Individuals with past immigration court proceedings or final orders of removal.

4. Key Takeaways & What You Should Do Now

• Pause All International Travel: Even if you have an approved Advance Parole card (Form I-512L) or advance travel booked, do not board a plane or cross a land border until an attorney reviews your file.

• Get an Unlawful Presence Calculation: An immigration lawyer must carefully audit your timeline to calculate whether you accrued "unlawful presence." (For example, minors under 18 do not accrue unlawful presence for this bar, and certain DACA holders who were protected continuously before age 18½ may still be safe).

• Understanding Retroactivity vs. Prospective Application: The BIA noted in Delcarmen-Lara that this new standard applies prospectively (moving forward). However, how immigration agencies (USCIS, CBP) will interpret trips taken today versus past trips is complex. Do not make assumptions about your legal status without formal guidance.

Disclaimer: This blog post is provided for informational and educational purposes only and does not constitute formal legal advice. Immigration law is changing rapidly. If you are considering travel or have questions regarding your status, contact a licensed immigration attorney immediately.

Key Changes to F-1 Student Work Authorization: Understanding the 2026 Duration of Status Final Rule

The U.S. Department of Homeland Security (DHS) published a landmark final rule eliminating "duration of status" (D/S) for F-1 nonimmigrants, replacing it with fixed periods of admission. Effective September 15, 2026, this rule introduces significant regulatory updates that impact Curricular Practical Training (CPT), Optional Practical Training (OPT), and Extension of Stay (EOS) procedures.

Below, we answer key questions regarding how these changes affect foreign students and U.S. employers.

General Overview & Admission Limits

Q: What is changing regarding how long F-1 students can remain in the U.S.?

A: Under the new rule, students will no longer be admitted for "duration of status" (D/S). Instead, they will be given a specific "Admit Until Date" (AUD) on their Form I-94. Admission will be granted for the length of the program listed on Form I-20 or a maximum of four years, whichever is shorter. Additionally, the standard departure grace period following program completion is reduced from 60 days to 30 days.

Curricular Practical Training (CPT)

Q: How does the final rule impact CPT?

A: While the rule does not affect currently authorized CPT, it places strict limitations on future CPT authorizations:

• Same/Lower Degree Levels: Prohibits F-1 enrollment in degree programs at an academic level equal to or lower than one already completed.

• Change of Degree Program: Restricts graduate students from changing their degree programs or educational objectives.

• Tighter Regulations Ahead: DHS’s Regulatory Agenda suggests upcoming rulemakings to require stricter documentation showing CPT is integral to a program’s curriculum.

Optional Practical Training (OPT) & Extensions

Q: How does the filing timeline change for initial Post-Completion OPT?

A: The window to apply for post-completion OPT changes:

• Old Rule: 90 days prior to program completion up to 60 days after.

• New Rule: 90 days prior to program completion up to 30 days after.

Q: What if a student’s Admit Until Date (AUD) expires before their OPT end date?

A: If a student's AUD expires before the end of their authorized OPT period, they must extend their AUD to match their OPT end date. This can be accomplished by:

1. Filing Form I-539 (Extension of Stay) through USCIS within the U.S. (DHS recommends filing at least 180 days prior to AUD expiration).

2. Departing the U.S. and seeking re-entry through a Port of Entry with a valid F-1 visa, OPT-recommended Form I-20, and Form I-765 receipt notice.

Q: Will international travel affect a pending Form I-539 Extension of Stay?

A: Yes. Traveling abroad while a Form I-539 is pending will abandon the application. The only exception is if the student travels and returns within the already-approved validity period of their Form I-20 and seeks readmission only until that original Program End Date. Otherwise, the student abandons the I-539 and must present their OPT-endorsed Form I-20 and Form I-765 receipt at the port of entry upon return.

Q: Are there transition relief options for students already in the U.S. on September 15, 2026?

A: Yes. Students present in the U.S. and maintaining valid F-1 status on September 15, 2026, may apply for post-completion OPT without filing a separate Form I-539 EOS application, provided they apply by March 18, 2027.

Work Authorization Extensions

Q: Is the 180-day automatic extension for STEM OPT still available?

A: Yes. The 180-day automatic extension for timely filed STEM OPT applications (filed up to 90 days prior to current EAD expiration) remains unchanged. However, if the student's AUD does not cover the full STEM OPT period, an extension of stay via Form I-539 or international re-entry will still be required.

Q: Does the rule provide automatic work extensions for CPT, On-Campus Work, or Economic Hardship?

A: The rule provides an automatic extension of up to 240 days for on-campus employment, CPT, Special Student Relief (SSR), and severe economic hardship employment while a Form I-539 EOS application is pending.

Important Caveat: The EOS application must be filed prior to the Program End Date on Form I-20 (not the AUD) while the student is still work-authorized. EOS applications filed during the 30-day grace period do not grant automatic work authorization extensions.

Compliance, Processing, & Attorney Guidance

Q: What new compliance and vetting challenges should students anticipate?

A:

• Biometrics: Applicants filing Form I-539 or I-765 may be required to submit biometrics, which can trigger delays or scrutiny if law enforcement contact exists.

• Social Media Vetting & Employment Consistency: Enhanced vetting means work histories across visa documents, resumes, and public social media profiles (e.g., LinkedIn) must align perfectly. Students should avoid describing unpaid internships as formal employment and avoid unauthorized self-employment (such as social media influencer/NIL earnings).

• Processing Delays: Because Premium Processing is not currently available for Form I-539 EOS applications, delays in I-539 processing may impact or shorten the student's usable OPT period.

Q: Can online Form I-539 applications include legal representation for families?

A: Currently, online I-539 filing only supports linking Form G-28 for single applicants without dependents (Form I-539A). For EOS applications involving family dependents, legal counsel should guide the applicant through screen-share sessions, upload a scanned, hard-copy signed G-28, and note that duplicate paper notices may not be issued directly to the attorney by USCIS.

Disclaimer: This blog post is for informational purposes only and does not constitute formal legal advice. If you have questions regarding your specific F-1 status or work authorization, please contact our office to schedule a consultation.

Over the past few days, members of the American Immigration Lawyers Association have reported an increase in clients being detained by DHS at U.S. airports during domestic travel. This is occurring across the country, including in California, Colorado, Florida, Illinois, Kansas, Michigan, New Jersey, Texas, and Virginia.

Impacted individuals include those whose lawful status has expired but may have timely filed adjustment of status applications or asylum applications which would allow them to be in a period of authorized stay. Reports include individuals being detained who do not have criminal records and who have valid work authorization or advance parole documents.

The New York Times is separately reporting on the issue as well. “In 38 years practicing immigration law, I had never seen this,” said Charles Kuck, who is based in Atlanta and is representing an Indian engineer who was detained while awaiting a work-permit extension. “And I know it’s happening to lots of people.”

Shannon Shepherd, an immigration lawyer who is vice chair for the Chicago chapter of the American Immigration Lawyers Association, said she and other lawyers were revising longstanding advice about domestic air travel.

“Before, I was saying, ‘As long as you have an ID, you can travel domestically,’” Ms. Shepherd said. “Now I am turning around and saying, ‘If you are in the process of changing status, avoid any travel.’”

This is a developing situation, and our offices advice is to err on the side of caution. 

What the New Duration of Status (D/S) Transition Rules Mean for F-1, J-1, and I Visa Holders

Big changes are coming to immigration rules regarding Duration of Status (D/S) starting September 15, 2026. If you are currently in the U.S. on an F-1 (student), J-1 (exchange visitor), or I (foreign media) visa, here is a clear breakdown of how these transition rules affect you and what steps you should take to protect your status.

Key Takeaways for F-1 and J-1 Visa Holders in the U.S. on Sept 15, 2026

If you are physically in the U.S. with valid status on September 15, 2026:

• Staying in the U.S.: You can remain until the end date on your Form I-20 or DS-2019, up to a maximum of four years (until September 15, 2030).

• Grace Periods: You automatically keep your standard grace period at the end of your program (60 days for F-1 students; 30 days for J-1 exchange visitors).

• No Extra Paperwork Needed (For Now): You do not need to file Form I-539 (Application to Extend/Change Nonimmigrant Status) just to stay under these transition rules.

Warning: How International Travel Impacts Your Status

Traveling outside the U.S. after September 15, 2026, will change the rules for you upon re-entry:

1. Shorter Grace Period for F-1s: If you travel abroad and re-enter, your F-1 grace period will drop from 60 days down to 30 days.

2. Strict Expiration Dates: You will be admitted with a specific end date on your I-94 card (matching your I-20/DS-2019 or EAD end date, up to a max of 4 years).

3. Extensions Required: Once you re-enter under the new rules, you will be required to file Form I-539 to extend your stay if you need more time for school, program transfers, OPT, or STEM OPT.

Work Authorizations (OPT / STEM OPT) & Extensions

• Already Pending OPT Applications: If you filed for post-completion OPT or STEM OPT on time, you can stay in the U.S. while USCIS processes it. You do not need to file a separate Form I-539.

• Filing Before March 18, 2027: If you qualify and file your OPT/STEM OPT work permit application (Form I-765) before March 18, 2027, you generally will not need to file Form I-539 to extend your stay, provided you have not traveled internationally after September 15, 2026.

• If You Need More Time: If you stay in the U.S. and need time beyond your current I-20/DS-2019 end date (and do not travel abroad to re-enter), you must file Form I-539 with USCIS.

Special Rules for Foreign Media (I Visas)

If you are in the U.S. in valid I visa status on September 15, 2026:

• Standard Limits: You can remain in status to complete your media activities for up to 300 days after the final rule was published (until May 13, 2027).

• PRC Passport Holders: Individuals traveling on People's Republic of China (PRC) passports (excluding Hong Kong and Macau) have a shorter limit of up to 150 days (until December 14, 2026).

• Extensions: To stay longer than these transition dates, you must file Form I-539 with USCIS or leave and apply for re-entry.

Actionable Tips from Our Legal Team

1. Update Your Records Early: If you need more time for your program or are starting a new one, work with your Designated School Official (DSO) or sponsor to get an updated Form I-20 or DS-2019 before September 15, 2026.

2. File OPT Applications Early:

   • Apply for OPT/STEM OPT before September 15, 2026, if eligible.

   • If graduating by May/June 2027, utilize the 90-day advance filing window to submit your OPT application before March 18, 2027, avoiding the extra I-539 extension application.

3. Incoming Students: If possible, enter the U.S. (up to 30 days before your start date) before September 15, 2026, to take advantage of the transition protections and longer grace periods.

4. Reconsider Fall 2026 International Travel: Travel around or after September 15, 2026, can cause you to lose key benefits (like the 60-day F-1 grace period) and trigger additional application filing requirements. Try to return to the U.S. before September 15, 2026, or postpone non-essential travel.

Disclaimer: Immigration policies change frequently. Every case is unique, so please contact our office directly to discuss how these transition rules apply to your specific situation before making travel or filing plans.

Court Strikes Down Discriminatory USCIS Immigration Ban; Agency Declines to Appeal

In a major legal defeat for the Trump administration’s immigration agenda, a federal judge has struck down a series of policies that indefinitely froze immigration benefits for nationals of 39 countries.

In even bigger news for affected applicants: USCIS has decided not to appeal the decision at this time. This means the agency must immediately and permanently resume processing hundreds of thousands of suspended applications, treating all nationalities equally under standard federal vetting requirements.

Background: The "Permanent Pause"

The policies were abruptly implemented in December 2025 following a tragic shooting in Washington, D.C., involving a troubled Afghan special forces soldier. The administration quickly used the incident to restrict immigration, with President Trump calling for a "permanent pause on Third World migration" and former DHS Secretary Kirsti Noem demanding a full travel ban.

In response, USCIS enacted four sweeping changes:

• A total suspension of green cards, naturalization, work permits, and visa petitions for nationals of the 39 targeted countries.

• Mandatory bias, forcing officials to treat an applicant's nationality as a "significant negative factor."

• A retro-active "re-review" of all immigration benefits granted to people from those countries since 2021.

• An indefinite halt on all USCIS asylum decisions.

The freeze left hundreds of thousands of legal applicants in an indefinite limbo, risking their jobs and legal status based solely on where they were born.

What the Court Found

In a thorough 135-page ruling, Judge John McConnell of the U.S. District Court of Rhode Island declared the policies unlawful for three primary reasons:

1. No Legal Basis: Federal law dictates that the government must adjudicate applications in regular order. USCIS does not have the authority to simply stop doing its job, nor can it discriminate based on nationality.

2. Arbitrary and Capricious: The government offered no reasoned explanation for why a tragedy involving an individual from Afghanistan justified freezing the benefits of applicants from diverse nations like Cuba, Venezuela, and Nigeria.

3. Unlawful Bigotry: Judge McConnell ruled that the policies were rooted in anti-immigrant animus, noting it would require "profound naiveté" to ignore the overtly hostile public statements made by President Trump and Secretary Noem leading up to the ban.

What’s Next?

Because the Trump administration has declined to seek an emergency stay or appeal the ruling to the First Circuit, Judge McConnell’s order stands unchallenged.

For the hundreds of thousands of applicants whose lives and careers were put on hold, the filing cabinets are finally being reopened. USCIS is legally required to return to standard, non-discriminatory processing effective immediately.

Summary of the Court Ruling

On June 5, 2026, Chief Judge John J. McConnell, Jr. of the U.S. District Court for the District of Rhode Island ruled against the federal government, striking down a series of restrictive immigration policies enacted roughly six months prior.

A coalition of immigrant advocacy groups and labor unions sued U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS). They challenged policies that placed an indefinite freeze on processing critical immigration applications for people from 39 specific countries.

The court found that the government overstepped its legal bounds and violated federal administrative laws. As a result, the judge declared the policies unlawful and ordered them cancelled.

What Happened? (The Legal Issues)

The court reviewed four specific policies implemented by USCIS and threw all of them out, finding them to be "contrary to law" and "arbitrary and capricious":

• The Global Asylum Hold: USCIS had completely paused final decisions on all asylum applications across the country. The judge ruled this violated the agency's mandatory legal duty to process these applications.

• The Benefits Hold: USCIS indefinitely paused final decisions on green cards, work permits, and citizenship applications for anyone from 39 targeted "high-risk" or "Travel Ban" countries. The judge ruled that the agency does not have the legal authority to freeze applications based purely on an applicant's country of birth.

• The Comprehensive Re-Review: USCIS attempted to retroactively re-examine previously approved immigration benefits for individuals from the Travel Ban countries who entered after January 20, 2021. The court ruled that Congress explicitly outlined how benefits can be revoked, and it must be done case-by-case, not through sweeping categorical reviews.

• The Country-Specific Factors Policy: USCIS instructed its staff to view an applicant's nationality as a "significant negative factor" if they were from a Travel Ban country. The judge noted this violated federal laws designed to prevent national-origin discrimination in visa allocations.

Why the Government Lost

The government argued these strict rules were necessary for national security following two isolated criminal incidents involving Afghan nationals. However, the judge rejected this reasoning, stating there was no logical link between the actions of two individuals and a blanket punishment targeting thousands of legal immigrants from dozens of countries.

Furthermore, the court noted that the government completely ignored "reliance interests"—meaning it failed to consider the devastating real-world impact on legal immigrants who had already built lives, taken jobs, and paid taxes in the U.S. while waiting for the government to process their paperwork. The judge also pointed out that the government's security excuse seemed "contrived," especially since they quietly carved out processing exemptions for foreign athletes and medical doctors.

What Will Happen Next?

1. The Policies are Blocked Nationwide (Vacated)

Because the judge issued a remedy called vacatur, the four challenged policies are formally cancelled and stripped of their legal effect. USCIS can no longer use these specific guidelines to pause applications or negatively grade applicants based on their country of origin.

2. Processing Should Resume

Legally, applications that were frozen under these holds (such as work permits, citizenship requests, and asylum cases) must return to normal, individualized processing tracks. Immigrants impacted by the freeze will no longer face the automated "high-risk" penalties or forced re-interviews mandated by these specific memos.

3. No Permanent Injunction (For Now)

The judge denied the plaintiffs' request for a permanent injunction. He explained that completely canceling (vacating) the policies was already enough to solve the problem. If the government tries to sneak the same rules back in under a different name in the future, the plaintiffs have the right to come back to court to fight it.

4. Constitutional Questions Postponed

The plaintiffs also argued that the government's policies violated the U.S. Constitution's guarantees of Due Process and Equal Protection. Following a legal tradition called "constitutional avoidance," the judge chose not to rule on these complex constitutional questions because the policies were already successfully overturned using standard administrative law.

5. Potential Government Appeal

The federal government has the option to appeal this decision to the U.S. Court of Appeals for the First Circuit. If they appeal, they could ask a higher court to pause Judge McConnell's ruling while the legal battle continues.

For decades, foreign nationals lawfully present in the U.S. could routinely adjust their status to become permanent residents without leaving the country. USCIS's new policy memorandum changes this by characterizing Adjustment of Status (AOS) as "extraordinary relief" — meaning officers must now affirmatively find a reason to approve your case, not just the absence of a reason to deny it.

What this means in practice:

• Officers are conducting more interviews and issuing more Requests for Evidence (RFEs).
• Officers may ask you to explain why you chose to adjust in the U.S. rather than apply for a visa abroad at a U.S. consulate.
• Simply not having any bad immigration history is no longer enough — you must demonstrate positive reasons your case deserves approval.
• If you have a period of overstay or status violation in your history, you may need to demonstrate "unusual or outstanding" equities to overcome those factors.

Officers now are required to weigh all relevant facts and circumstances — both positive and negative — to determine whether approving your case is in the interest of justice. Understanding what they are looking for is key to your preparation.

Officers have been instructed to ask applicants specific questions about their decision to adjust status in the U.S. rather than process their case at a U.S. consulate abroad. Below are common questions you should be prepared to answer and guidance on how to approach them.

Certain situations carry elevated risk under the new policy. If any of the following apply to you, please discuss them with your attorney immediately so we can develop an appropriate strategy.

If You Filed While in B-1/B-2, F-1, O-1, TN, R-1, or Similar Status

These visa categories do not allow for "dual intent" — meaning they require that you intend to leave the U.S. at the end of your authorized stay. Filing for a green card while in one of these statuses can be interpreted as inconsistent with your nonimmigrant intent. Your attorney may advise you to change to a dual-intent status (such as H-1B) before or during your AOS process.

If You Have a Period of Unlawful Presence

While your I-485 is pending, unlawful presence (ULP) is tolled — meaning it stops accumulating. However, if your case is denied and you have accumulated significant ULP, you could face the 3-year or 10-year bar from returning to the U.S. after departure. Your attorney will review this issue and may recommend filing a waiver application proactively.

If Your Child's Status Is Tied to Your Case

If your child's eligibility for derivative status depends on their age being under 21 at the time of final adjudication (Child Status Protection Act), a denial of your I-485 could cause them to "age out" and lose their protected status. This is an important equitable factor your attorney will raise on your behalf.

If You Are Relying Solely on an AOS-Based EAD to Work

Employees who are working under an Employment Authorization Document (EAD) tied to a pending I-485 and who have not maintained a valid nonimmigrant status should be aware that a discretionary denial could affect both their employment authorization and their immigration status. Discuss contingency planning with your attorney.

A denial under the new policy is not the end of the road. However, the options available can be complex and time-sensitive. Your attorney will advise you on the best course of action based on your specific circumstances.

• Immigration Court: Your case may be referred to an Immigration Judge, where you can renew your application. However, if you entered the U.S. on parole and are considered an "arriving alien," USCIS retains sole jurisdiction over your case, which may limit this option.
• Motion to Reopen or Reconsider: A denial cannot be appealed through normal channels, but your attorney may file a Motion to Reopen or a Motion to Reconsider. A legal challenge under the Administrative Procedures Act (APA) may also be available in appropriate cases.
• Consular Processing: If your I-485 is denied, consular processing at a U.S. embassy or consulate abroad may remain available. Your attorney will advise whether unlawful presence bars or other issues must be resolved first through a waiver.
• I-601A Provisional Waiver: If you would be subject to the unlawful presence bar upon departure, an I-601A waiver application can be filed while you are still in the U.S. These applications currently take approximately two years to process, so it is important to begin early if this applies to you.

USCIS announced on May 22, 2026 a new policy to create confusion and fear for all immigrants within the United States. The new memorandum is titled: Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process. 

It appears that the memorandum has been carefully designed to create as much confusion and fear as possible within the entire non-US citizen population of the United States.

What a Worst Case Scenario would look like...

For those that have already filed an Adjustment of Status or that are planning to soon file for Adjustment of Status it's important to understand what a Worst Case Scenario may look like. For most the worst case scenario will be manageable, and there will not need to be any waivers to complete the process to obtain their Green Card via Consular Processing. 

Where an Adjustment is denied, the the underlying I-130 or I-140 should still be approved by USCIS. The case may then be automatically forwarded to the National Visa Center to complete processing, or it may require the filing of an I-824 Petition for action on an approved case to trigger the movement of the case to the National Visa Center. From this point the case would be completed as a Consular Processing case as if it had been filed in this manner from the beginning.

Unless the Beneficiary or Applicant has been maintaining another underlying non-immigrant status inside the US all along, such as on an F-1, J-1, H-1b, L-1, etc they will need to depart the US upon the denial of their case in order to avoid accruing unlawful presence that would trigger a bar for future admission upon their departure for their Consular Processing interview.

For those that maintained their non-immigrant status, they should be permitted to remain in the US until departing for the Consular Processing interview, and their time outside the US should be limited to perhaps a month or so as they take the steps for the medical exam with the civil surgeon, attend their visa stamping appointments, and then return on their immigrant visa stamp. 

The biggest factor for those that did not maintain their underlying non-immigrant status will be weather the Beneficiary or Applicant of the Adjustment of Status had +179 days of Unlawful Presence within the US prior to filing their Adjustment of Status. If they have less, then pivoting to Consular Processing and departing the US should not trigger a bar for future admission on an Immigrant Visa. Similarly if the Beneficiary or Applicant was younger than 18.5 years old when their Adjustment was filed their Unlawful Presence will have been limited due to their age and more forgiving treatment to minor children. The trouble here is that departure from the US will need to happen almost immediately upon the denial of the Adjustment the denial of an Adjustment of Status is not appealable in general. Then the Applicant or Beneficiary will need to wait outside the US until their case completes the Consular Processing steps, a process that can take months, and often years. 

If the Applicant or Beneficiary has 180 days or more unlawful presence, more extreme remedies may be required, including an I-601(a) provisional waiver for unlawful presence or seeking Adjustment of Status in the EOIR Immigration Court system. 

Every case will be unique, so it will be important to anyone going through Adjustment of Status to work with an immigration attorney so that they have a firm grasp on both their Best Case Scenario and the Worst Case Scenario. 

Old Practice vs. New Policy

The old unwritten deal (for decades):

For decades, the deal was this: if you followed the rules, kept your status, got your I-130 or-140 approved, and waited your turn, your green card through adjustment of status was essentially a sure thing once your priority date became current. The officer reviewing your file mostly asked, "Does this person qualify?" If yes, approved. In other words, adjustment of status had become routine in practice. As long as you met the technical eligibility requirements, approval was nearly automatic. Discretionary denials were rare.

The new standard:

Eligibility is no longer enough. Worthiness is the new standard. The memo tells officers to actively scrutinize whether applicants deserve to bypass the consular process, not just whether they technically qualify.

What Specifically Changed

1. Staying in the US is now a negative factor. Previously, being in the US and applying for a green card here was unremarkable. Now, the memo frames it as going against Congressional intent — you're expected to leave and apply from abroad, and choosing not to is something you have to justify.

2. "No bad history" is no longer enough. Under prior practice, a clean record was essentially sufficient. The new memo explicitly states that the absence of adverse factors, by itself, does not demonstrate the "unusual or outstanding equities" needed for approval.

3. Who's most at risk: The people most exposed to a negative discretionary finding are those whose time in the country already shows a problem — visitors who entered on a B-1/B-2 tourist visa and then decided to stay, F-1 students who stopped studying or worked without authorization, and people who overstayed any temporary status. 

4. More denials must now be written and explained. Officers are now required to issue detailed written denials explaining exactly why negative factors outweighed positive ones — which suggests USCIS is anticipating and preparing for more discretionary denials.

The Important Caveat

The memo is careful to note that the law itself hasn't changed — the discretionary authority always existed. USCIS is essentially saying "we're going to actually use the discretion Congress gave us, instead of rubber-stamping eligible applications." The memorandum explicitly reaffirms that the standard, expected pathway to lawful permanent residence is through ordinary consular visa processing abroad. The bottom line: the law is the same, but the culture of adjudication is shifting from "approve unless there's a reason not to" toward "deny unless there's a compelling reason to approve."

For many applicants — particularly employment-based cases with clean records — the practical impact may be limited. For others, especially those with any immigration irregularities in their history, the risk of denial is meaningfully higher.

According to the new USCIS policy, in "normal" circumstances people who want to become US permanent residents (get a green card) have to leave the US and go through a US consulate abroad. "Adjustment of status" is a shortcut that lets certain people already inside the US apply for a green card without leaving. This memo is about that shortcut.

What does the new memo say? USCIS is reminding its officers — and the public — of three key points:

1. It's a privilege, not a guarantee. Even if you technically qualify for adjustment of status, you are not automatically entitled to it. Officers have the power to say no, and this memo tells them to use that power seriously.
2. The default expectation is that you leave. If you came to the US on a visa or parole, Congress expected you to go home when it expired. Choosing to stay and apply for a green card instead goes against that expectation, and officers should treat that as a negative mark against you.
3. You have to earn it. To overcome any negative factors (like overstaying a visa), applicants need to show "unusual or outstanding" positive circumstances — not just a clean record. Simply having no bad history is not enough on its own.

What do officers have to consider? When deciding whether to approve an application, officers must weigh the full picture, including:

• Any immigration law violations or visa overstays
• Fraud or dishonesty in dealings with the government
• Whether the person followed the rules of their visa or parole
• Family ties, moral character, and other personal circumstances

What happens if they deny someone? Officers must put the denial in writing and clearly explain which negative factors outweighed the positive ones.

What this means practically This memo signals that USCIS intends to be more selective about approving green card applications filed inside the US, especially for people who overstayed visas or were paroled in (including, potentially, those who entered through humanitarian parole programs). Expect more scrutiny and more denials going forward.

Note: This memo guides USCIS officers but does not create any legal rights for applicants.

Summary of USCIS Enhanced Security Vetting Procedures

U.S. Citizenship and Immigration Services (USCIS) has implemented an upgraded security vetting process for a broad range of legal immigration benefits. This initiative stems from a February executive order granting the agency expanded access to federal criminal history databases.

Core Changes to Processing

• Mandatory Re-vetting: Officers have been instructed to resubmit pending applications for enhanced background checks if the initial FBI screening data was received prior to April 27, 2026.

• Adjudication Pause: A directive is currently in place requiring officers to refrain from approving any pending cases until they have undergone these expanded screenings.

• Automatic Resubmission: The agency will utilize fingerprints already on file for the re-vetting process; applicants generally do not need to take additional action unless specifically contacted.

Affected Applications

The enhanced checks apply to benefits requiring biometric (fingerprint) submission, including:

• Permanent Residency: Form I-485 (Green Card) applications.

• Naturalization: Form N-400 (U.S. Citizenship) applications.

• Humanitarian Programs: Asylum applications and related filings.

• Family-Based Petitions: Sponsorships for relatives or fiancées of U.S. citizens and permanent residents.

Impact and Timeline

• Immediate Delays: The requirement to re-screen thousands of pending cases has created a temporary backlog in decision-making.

• Agency Outlook: Official statements characterize these processing pauses as "brief," though no specific date for the resolution of the backlog has been provided.

• Scope: These checks are separate from existing holds related to the "travel ban" proclamation affecting 39 specific countries; applicants from those regions may face compounded wait times.

USCIS is Using AI to Verify Work Without Authorization

USCIS is increasing its use of artificial intelligence and partnership with enforcement agencies, all foreign students and workers should be mindful of their employment history and online presence. Proactively addressing this requirement can help students and employers avoid potential discrepancies and ensure ongoing compliance.

It is recommended that students thoroughly review their online job board profiles (LinkedIn, Indeed, etc.) and, when applicable, I-983 Training Plan to ensure full compliance with Optional Practical Training (OPT) and Science, Technology, Engineering, and Mathematics (STEM) OPT regulations.

For applications requesting a change of status to H-1B, students should confirm they have appropriate employment authorization for jobs listed on the petition and on publicly available websites. For example, students may list themselves as “founder” of a company for a school assignment without Curricular Practical Training (CPT) or other authorization rendering the student ineligible for a change of status and triggering the $100,000.00 H-1B fee.

It's important to confirm consistency between public profiles and immigration petitions (i.e. job titles, dates of employment, compensation, and job duties). Further, students need to avoid exaggerated descriptions of roles online and to update profiles promptly to reflect accurate, authorized employment consistent with immigration status.

Similarly, it's important to verify the worksite listed on the I-983 Training Plan reflects the actual address at which the STEM OPT student works. Many times, only the main office of employment is listed as a worksite in the training plan.

While not expressly prohibited by regulation, working from home on STEM OPT may be difficult to justify because direct supervision is required. If remote work is taking place, ensure that the I-983 addresses how oversight and supervision is taking place, such as weekly meetings, review of work product, etc. If possible, the employer should file an updated I-983 listing the new worksite. Practitioners should also ensure that the student is working for an e-Verified employer, particularly if the STEM OPT student worked for a different company than the employer who completed the original I-983 Training Plan.

Lastly, it may be prudent to include a reminder that STEM OPT students must be compensated and that their compensation must be consistent with what is reported on Form I-983. While this issue has not yet been a point of scrutiny, there are clear indicators that the I-983 training plan may receive increased attention in future compliance reviews. Proactively addressing this requirement can help students and employers avoid potential discrepancies and ensure ongoing compliance.