Comment by varenc
21 hours ago
The internal memo on this is interesting: 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)
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.
> 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-inf...
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.
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.
A misrepresentation. 'Adjustment of status' is not 'if the government really likes you', it's a process that's available by rule. And the federal rulemaking process, as you are fully aware, involves publication in the federal register, solicitation and and collation of public comment, and republication of teh final rule, again, in the federal register.
Incidentally, we don't have an attorney general at present, only an acting one (Trump's former personal lawyer), and I question the standing of an unconfirmed federal officer to alter existing rules, never mind to bypass the federal rulemaking process entirely.
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> 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?
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One of two things happened here:
1. You just quoted 8 USC 1255(a) because it's at the top of the USCIS memo without understanding it; or
2. This is just the most ChatGPT comment.
I say this because you clearly don't understand this stuff. From reading your comment history, you're a Trump supporter [1] and you seem to have done the most MGA Thing of being told what your position is and then looking for a justification.
8 USC 1255(a) is a carve-out that basically gives the AG authority to let people adjust. It doesn't go the other way and say the AG can withhold permission to adjust. The entire section details the requirements to adjust, detailing admissibility requirements.
So how did we get from the AG can allow someone to adjust to the AG can override the entire section that details adjustment requirements?
Also, you don't understand what "nonimmigrant" means in relation to your H1B comment. Yes, H1B is a nonimmigrant visa. That just means they're not a lawful permanent resident ("LPR"). It doesn't mean they can't adjust status.
It's a bit like taking the description fo a woman as "non-pregnant" and taking that to mean they're not capable and/or not allowed to get pregnant.
[1]: https://news.ycombinator.com/item?id=48188084
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Deregulation and union busting greatly expanded in the 80s leading to the high point of the country in the 90s as well.
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 ?"
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1% says what?
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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.
Japan only requires leaving for converting a tourist/digital nomad visa and some Working Holiday Visas to a normal working/spouse visa. And WHV to normal status is really dependent on the partner country. For example Australians don't need to leave, but Canadians and Brits do, and I've heard that immigration will sometimes just grant the change of status anyways. So that seems to indicate that Japan doesn't really care.
Needing to leave to convert a normal working/spouse status to PR is not the norm anywhere.
> . So that seems to indicate that Japan doesn't really care.
Additionally, Japan has a very clear and straightforward process to convert HSP Visa (Highly skilled visa) to a permanent residency.
It can be done in 3years for most and to 1year for the high level candidatures (PhD profiles).
This is very far from the current H1B shitshow.
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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.
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.
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It's a shame you scrolled past pages of comments and missed the point entirely.
The fact that it's "common in other countries" is entirely irrelevant to what the United States does.
It's not even clear it's common in other countries. Japan is notorious for being insular.
This is a garbage move by this administration that flies in the face of decades of precedents _in the United States_.
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.
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
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.
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.
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What are the Canadians up to and why are they doing it?
That’s strange. I was able to renew a work permit in Canada while staying (and continuing work) in Canada. Same for study permit. This was over a decade ago, so perhaps things have changed.
They also were not called visas, but permits. Visa is for entering the country, permit is for staying.
you can renew the same permit without, but you can't go from one type of permit to another (student to working prof in my case) without flagpoling; you also can't go from a visa to a permit without flagpoling
Even if it is common (i don't think this is required any more anyways), just why? Why do we need to make someone run back and forth across the border for the immigration department to do some paperwork? It seems purely designed to inconvenience people for absolutely no gain to anyone.
> Even if it is common (i don't think this is required any more anyways), just why?
As far as Canadian law goes, there are two factors at play in the parent's events;
* NAFTA work permits are applied for at the border, on entry; they operate differently from the 'normal' work permit streams.
* Permanent residence is conferred at the border, but the application process can happen either inside or outside the country depending on the stream. There are also limited 'inland' options which evidently have expanded (https://www.canada.ca/en/immigration-refugees-citizenship/se...) in recent years.
In neither case does Canada have a blanket rule that an applicant must leave the country during the whole of an extended application process, and even 'abroad' processes can often be carried out while an applicant is living in the country on other status. (It can get awkward if a consular interview is required, though.)
Unlike the US, Canada is generally comfortable with 'dual intent', where intent to apply for permanent residence through legal channels is not disqualifying for other sorts of statuses.
My guess: If they end up being denied then it's easier to not let them back in by not letting them cross the border whereas if it's in the country it's harder to locate them to deport?
Seems pretty brutal to me though.
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Because the people and computer systems and processes to admit people into the country and start a visa or PR or whatever are located at the borders.
It’s just how things are done.
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> 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.
This new policy is different than the "flag poling" you've described. The new guidance requires immigrants to return to their country of origin, then apply for the change in status, and wait in their country of origin while the change in status is being processed/considered which can take many years. If the status changed is approved, they can move back to the US.
You say "normal" and then add the other paragraphs, which are very clearly not normal. Common maybe.
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.
Trying to follow the Constitution literally is hard and in practice, it's not done. The political system just interprets the Constitution in whatever way the consensus of the given moment wants to interpret it. The 14th Amendment is clear that all persons born in the US are citizens of the US. However, if you follow the 2nd Amendment just as literally, it means that the Federal government, at least, cannot make any laws restricting us from owning nuclear weapons.
Read the law! It’s there in black and white! It’s 8 USC 1101(a)(15) and (a)(15)(H). It’s a “nonimmigrant” visa for people “temporarily” in the U.S. https://www.law.cornell.edu/uscode/text/8/1101
How is it “delusional” to interpret a law that’s plastered with the words “non immigrant” and “temporary” and say that maybe it shouldn’t be a de facto path to permanent residency?
Because the words temporary amd nonimmigrant don't carry the meaning that you're imbuing into them. Fiance visas operate very similarly to these dual intent H1 visas. You're granted a temporary nonimmigrant status while you pursue a permanent one. The words nonimmigrant and temporary doesn't exclude pursuing a permanent status at all.
In the case of a K-1, it is assumed you will transition from a temporary nonimmigrant status to a permanent status. [1] Requiring folks to move to the U.S., and then go back out of the country to get a green card, only to return again, is absurd. That absurd dance for both K1 and H1 w/dual intents is the reason the laws and guidance provided to agents changed starting in the 50's through the 90's. These changes in guidance to agents are nothing more than a thinly veiled attempt to suppress people coming to the U.S. lawfully, which is absurd and deeply anti-American.
[1] https://www.uscis.gov/family/family-of-us-citizens/visas-for...
As is the K-1 fiance visa. Talk to us of how the purpose of the K-1 fiance visa is a "nonimmigrant" visa that is for people to be allowed "temporarily" into the US to see their spouse, and that it is "delusional" to think that that might be a path to permanent residency with their spouse.
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.
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).
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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._Natura....
[2]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...
Your comment is completely wrong:
For example:
> Overturning Chevron became a mission of the conservative movement
Chevron’s biggest proponent was Justice Scalia!
> 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.
Executive agencies have always been governed by the APA. That’s why it’s called the “Administrative” Procedures Act.
> 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
That’s been true since 1946. That was the whole point of the APA. Chevron itself arose out of an EPA rule making under the APA.
You’re completely mistaken about what Chevron was about. It was just about whether courts must defer to agency interpretations of ambiguous statutes, or whether they get to decide the interpretation themselves.
Thank you for this fantastically informative comment.
No, the comment is complete misinformation. In particular:
> 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.
Executive agencies were always governed by the Administrative Procedures Act. The law was created in 1946 for the purpose of governing executive agencies.
OP is completely wrong about what Chevron and Loper Bright were about. Agencies have always had to do rulemakings with notice and comment to promulgate regulations. Those rules obviously have to follow the statutory law.
Chevron was about what happens when an agency action is challenged in court and the statute is ambiguous. Chevron says the agency gets deference from the court in deciding what the law means. The court has to accept ghr agency’s interpretation as long as it’s reasonable.
Loper Bright says the court has to decide what the law means itself, just like it does for any other law.
More broadly, this isn’t even a “conservative” versus “liberal” issue. Scalia was the biggest champion of Chevron and Gorsuch authored Loper Bright. Both were/are Federalist Society guys. This is an internal disagreement among conservatives about whether agencies or courts have the last word on what statutes mean.
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> 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).
This feels like it might be the actual motivation of the Trump admin to do this change. The cruelty is indeed the point.
> They may have incurred unlawful presence
> The cruelty is indeed the point
What's the difference between this and just outright saying that enforcing the law is cruelty? After all, nobody enjoys being punished, even if it's for breaking the law.
I don't want people to be unlawfully present in my country. Enough people desired that same outcome that, through the democratic process, we have laws controlling immigration. There has to be consequences for breaking that law. It absolutely cannot be the case that anyone can break the law and then have it not matter on the grounds that to make it matter would be cruel. What even is the point of the rule of law?
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It is actually remarkable how much of the bullshit we have to put up with comes down to our giving power to craven or unscrupulous men with a chip on their shoulder.
Bush W. and his father's single term.
Biden and his family's troubles with the federal government.
Musk and gestures broadly at South Africa
Trump
I'm sure the list goes on.
Don’t you technically leave the nation when you enter an embassy?
Not at all, no - embassies are granted special privileges but are still the territory of the country they are in.
No. This is a popular myth.