USCIS Policy Change May Send More Green Card Applicants Abroad

Action: In a memo released May 21, US Citizenship and Immigration Services (USCIS) stated that the decision to grant lawful permanent residence (commonly known as a “Green Card”) to an applicant physically present in the US rather than application through a consulate in the immigrant’s home country is “an extraordinary discretionary relief” that is “an act of administrative grace” that is “not designed to supersede the regular consular process of immigrant visas.”¹ This is a significant policy change, as individuals already in the US under a different status (e.g., an employment visa) commonly apply for permanent residency without leaving the US.

Trusted Insights for What’s Ahead^®

• About one million individuals obtain lawful permanent residency annually, more than half of whom apply while already in the US (608,260 in FY 2023).²  The policy change, done through informal guidance rather than regulation, could affect up to hundreds of thousands annually.  
• Release of the memo led to confusion about how the guidance would be implemented. In a separate statement, USCIS tightened the language, stating that an “alien who is in the U.S. temporarily and wants a green card for permanent residency must return to their home country to apply, except in extraordinary circumstances” – language not contained in the initial memo.³
• Amid significant opposition from both immigration advocates and businesses, USCIS issued additional clarifications – first stating that some exceptions would be granted for those providing an economic benefit or whose presence is in the national interest, then characterizing the memo as restating “longstanding law and policy” and stating it would not “prevent any alien from obtaining a green card who legitimately and properly qualif[ies].”⁴ The Department of Homeland Security also stated that highly qualified and skilled Green Card applicants would see no noticeable change from the existing system,⁵ though it did not define the policy further.
• Despite the clarifications, press reports suggest ongoing confusion about how the directive will be implemented. USCIS has also reportedly begun asking some individuals applying for an adjustment of status why they did not apply through a consulate abroad.⁶
• The Administration argues that the change aligns policy with the Immigration and Nationality Act. However, critics argue the policy misinterprets the original statute and case law.   
• What this means for business: 
  • Talent mobility and retention risk: Employers sponsoring foreign-born workers for permanent residency should reassess green card pipelines. If more employees must complete immigrant visa processing abroad, businesses could face employee absences, consular delays, uncertainty around visa issuance, and disruption in hard-to-fill roles.
  • Higher documentation burden: Companies should expect stronger evidence packages for adjustment filings. This may include proof of continuous status maintenance, lawful employment authorization, tax compliance, wage and job-offer documentation, role criticality, business need, education and skills, and evidence that the worker’s continued employment produces economic benefit or serves the national interest.
  • Contingency planning for consular processing: Employers should identify which workers could complete processing abroad if required. Companies should also review travel policies for employees with pending green card applications and pending advance parole or employment authorization applications. 
  • Monitoring next steps: This change was not implemented through formal regulation. Business leaders should closely track USCIS field-office practice, new requests for evidence or notices of intent to deny, any Policy Manual updates, State Department consular guidance, litigation, and monthly Visa Bulletin changes.