Comment by skeeter2020
17 hours 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.
17 hours 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.
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.
> misrepresentation. 'Adjustment of status' is not 'if the government really likes you', it's a process that's available by rule
I’m using a colloquialism to convey how much latitude the administration has under the wording of statue. It says that 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…”
When the statute says an officer “may … in his discretion” do something, that’s Congress giving very broad latitude to the executive to make case by case determinations.
The word “discretion” has a special meaning under the APA. The APA says that courts can’t review agency actions that are “committed to agency discretion by law.” The Supreme Court has read that carve out narrowly (because otherwise I think you have serious due process problems). But Congress using the word “discretion” here at the very least conveys how much latitude Congress intended to give the administration with respect to adjustment of status.
> 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?
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.... 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.... 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.
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.
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
> 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.
That’s exactly what “may” means. The AG “may” do it, but he doesn’t have to.
To make that clearer, the statute also says “at his discretion.” That means the AG can adjust or not at his choice. That’s what the word “discretion” means in a legal context: https://dictionary.justia.com/discretionary
> The entire section details the requirements to adjust, detailing admissibility requirements.
You need to read more carefully. The rest of the section describes conditions where the AG cannot adjust the status. They don’t require the AG to grant the status adjustment to anyone who meets the requirements.
For example, subsection (d) says: “The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title.”
So subsection (a) gives discretion to the AG to adjust status at the AG’s choice. Then other provisions say that he can’t adjust status under certain circumstances.
> 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").
No, because there are also “immigrant” visas. Those visa holders also aren’t LPRs. So what’s the distinction between immigrant and non-immigrant visas in your reading? The difference is that immigrant visas are intended to be a pathway to a green card, while nonimmigrant visas are intended to be for temporary workers who will typically go home.
Note that subsection (H) also includes H2 visas for unskilled temporary workers. Those visa holders can request an adjustment of status too. But the expectation is that generally that will not be granted.
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 ?"
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.
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1% says what?
1% says correlation is not causation