As the Trump administration continues its deportation crackdown, it’s finding new ways to make it harder for people to immigrate to the United States legally.
On Thursday, U.S. Citizenship and Immigration Services (USCIS) published a policy memo requiring anyone seeking an adjustment of immigration status to do so “outside the United States,” unless they qualify for “extraordinary circumstances.”
This policy—which is effective immediately but lacks the force of law, as it’s a guidance document—would be a sharp departure from the current process that allows those here on temporary status to apply for permanent residency without leaving the country. According to the memo, the shift in policy is an attempt to “faithfully apply the statutes” of the Immigration and Nationality Act (INA), specifically section 245, which governs the process for transitioning from temporary to permanent residence status.
There are 11.65 million cases pending with the USCIS as of September 2025, a 23 percent increase in its backlog since the previous fiscal year, according to the Niskanen Center.
The USCIS claims that its discretionary use of adjustment of status has been widened when it should have been narrowed. The agency states that the adjustment of status process was never intended to be used to “avoid the prescribed ordinary consular visa process.”
Under section 245 of the INA, “an alien may submit an application for lawful permanent resident status, with fee, immediately after the granting of lawful temporary resident status.” A plain reading of the text would appear to contradict the USCIS’s claim that Congress “made it clear” that “aliens are expected to depart the United States when the purpose of their admission or parole has been accomplished.”
The language in section 245 would ostensibly allow a person, after being granted temporary status and traveling to the U.S., to decide to file for permanent status while in the country. The USCIS states that Congress wrote a “detailed statutory scheme” designed to limit adjustment of status to “extraordinary” cases, but this likewise runs counter to the eligibility requirements.
The law actually states that anyone “lawfully admitted for temporary resident status” may apply for adjustment of status. Included in the criteria is a stipulation that the person “need not be” in the country, but they must “establish continuous residence in the United States.” If, as the USCIS claims, Congress intended to narrow the use of adjustment status rather than the regular consular visa-issuing process, they would likely have omitted the language regarding residency.
It’s more likely Congress included the stipulation that applicants “need not be” in the country to avoid excluding applicants already in another country applying for permanent residency, and to avoid requiring those in the U.S. to be expelled as a prerequisite for application.
Atlanta-based immigration attorney Charles Kuck says the policy “makes no sense” and that the discretion granted to the USCIS to set rules is “not absolute.” In his view, Congress has already indicated that it favors an expansive view of the statute by continually adding exceptions to the categories of individuals eligible for adjustment of status.
Past exemptions have included skilled workers whose visas have lapsed, allowing them to adjust their status domestically. Congress has not given exemptions to people who entered the U.S. as crew members aboard ships or aircraft, anyone who has violated their visa status, people passing through the country en route to another destination, those on the visa waiver program, or terrorists.
Houston-based immigration attorney Steven Brown says Congress “created adjustment of status as a pathway to alleviate some of the burdens of adjusting abroad” and to “alleviate some of the burdens on consulates.” The discretion granted to the USCIS by the statute is finite and not, he says, “carte blanche to do whatever they want.”
Agency spokesman Zach Kahler tells Reason the USCIS is currently working to “operationalize” its new process. According to Kahler, green card applicants who “provide an economic benefit or otherwise are in the national interest” aren’t likely to be displaced by the policy. In contrast, others “may be asked to apply abroad depending on individualized circumstances.”
While this could indicate that the policy will be flexible, it doesn’t mask the fact that, despite its promise to go after the worst of the worst, the administration seems committed to making the immigration process difficult for every applicant, even those using the proper legal channels.
