A Policy Memo Cannot Quietly Repeal Six Decades of Immigration Law

On May 21, U.S. Citizenship and Immigration Services published a four-page policy memorandum that, if it stands, will end the way most foreign nationals in the United States have obtained green cards for the better part of sixty years. Policy Memorandum PM-602-0199 instructs immigration officers to treat in-country adjustment of status — the process that lets visa holders convert to permanent residency without leaving — as a discretionary, “extraordinary” benefit available only when applicants can show “unusual or even outstanding equities.” A USCIS spokesman told reporters that foreign nationals temporarily in the United States who want a green card “will generally be expected to return to their home countries to apply to a consulate.”

The substantive merits of that policy can be debated. The procedural method cannot. A federal agency does not get to recharacterize a statutory benefit Congress created in the Immigration and Nationality Act of 1965 by issuing internal guidance and a press release. Whether the United States should hand out fewer green cards, or rebalance the categories, or tighten the eligibility rules are all honest debates — and they belong in Congress, not in a four-page memo dropped on a Thursday that takes effect the next morning.

What the statute actually says

The relevant text is Section 245(a) of the Immigration and Nationality Act. It provides that the status of a nonimmigrant “may” be adjusted to that of a lawful permanent resident if the person applies, is eligible to receive an immigrant visa and admissible, and a visa is immediately available. Nothing in the section uses the word “extraordinary.” Nothing instructs officers to treat in-country filings as disfavored or to weigh them against a presumption of consular processing. The word the memo leans on — “may” — is the same word Congress used throughout the immigration code to give the agency discretion at the margins, not to treat the entire process as a form of grace.

As immigration attorneys at Cyrus D. Mehta & Partners PLLC wrote in their analysis, the “extraordinary relief” characterization is “not present anywhere in the INA,” and reading “may” in Section 245(a) to mean “extraordinary” is “contrary to the meaning of the statute and to longstanding USCIS policy.” Decades of agency practice, official manuals, and court guidance have treated the in-country path as the standard route. The memo points to no statutory text or judicial holding that authorizes turning that default upside down. It simply asserts the new posture and tells officers to apply it.

The point of notice-and-comment

The Administrative Procedure Act is the statute that polices exactly this kind of move. When an agency wants to set a substantive new rule of conduct — a rule that, in practice, decides who gets a benefit and who does not — it generally has to publish a proposed rule, accept public comment, respond to that comment, and issue a final rule that a court can review. The APA carves out an exception for “interpretive” rules and “general statements of policy,” which is the box USCIS has put PM-602-0199 in. The fight ahead will be over whether that box is the right one.

It is not. An interpretive rule explains what an agency thinks a statute means. A policy statement tells the public how the agency intends to use its existing discretion. Neither, on its own, can shift the burden of proof or change the underlying eligibility standard. PM-602-0199 does both. It directs officers to require applicants to affirmatively demonstrate “unusual or even outstanding equities” for a benefit Congress wrote into the statute as the standard pathway, and tells them to weigh a sweeping list of disfavored factors — prior visa irregularities, inconsistencies in past statements to federal agencies, conduct stretching back across years. That is a substantive rule. It changes who gets in.

The Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo sharpens the problem. By ending the Chevron framework that for forty years required courts to defer to agency interpretations of ambiguous statutes, Loper Bright put the federal judiciary back in the position of deciding what the law means. An agency trying to enlarge its own authority through an internal memo now faces a judicial branch less inclined to take its word for it. The lawyers preparing to challenge this memo know that.

A specific trap for the people we asked to trust us

The procedural argument is the main one. There is also a human argument that should land harder than it has.

The United States has spent two decades making specific commitments to specific people who took on risk on our behalf. Afghan nationals who served as interpreters, drivers, and fixers for American forces were promised pathways to permanent residency. Ukrainians who fled Russia’s 2022 invasion were granted humanitarian parole and told they could pursue green cards from inside the country while they built lives here. Many are now mid-application, filed in good faith under the rules in force at the time.

The new memo does not appear to carve them out. World Relief, the humanitarian organization that has resettled tens of thousands of refugees, called the policy “cruel” and “anti-family.” For an Afghan ally with a pending I-485, “extraordinary circumstances” is not an abstraction. It is the question of whether returning to a Taliban-controlled country where collaboration with American forces remains a death sentence will count, or whether the agency will decide that it does not. Whether being in genuine, identifiable danger is enough to qualify is a question the memo refuses to answer.

The bind is sharper still for nationals of the thirty-nine countries — most of them in Africa and Asia — already subject to the administration’s expanded travel ban. Someone lawfully in the United States today on a valid visa from one of those countries now faces a three-sided box. The new memo discourages an in-country filing. Returning home to consular-process is the agency’s stated preference. The travel ban then blocks the same person from re-entering to take up the green card the consulate issues. Whatever else that is, it is not a workable process.

The administration’s defenders will say these individuals can apply for an “extraordinary circumstances” finding. That answer is not serious. An undefined exception administered without notice, comment, or published criteria is not a safeguard. It is a black box. The whole point of published rules is that an applicant — and a court — can know in advance which side of the line they are on.

What this has in common with everything else

This memo is not arriving in a vacuum. It is part of a broader pattern of internal instruments — guidance documents, policy memos, enforcement choices — used to make changes that, under any honest reading of administrative law, are supposed to require an Act of Congress or a properly promulgated rule. The DOJ’s $1.776 billion Anti-Weaponization Fund, routing Treasury money through a commission Congress never authorized, is one example. The vindictive prosecution a federal judge dismissed this week in Nashville is another. Each can be defended on its narrow facts. The cumulative effect is an executive branch that treats the slow, accountable channels of governance as obstacles rather than rules.

Congress is not absent. The budget reconciliation bill grinding through the Senate contains real, debated changes to legal immigration — fewer pathways, lower caps, tighter rules. It is in the middle of the Byrd Rule fight, which is messy precisely because senators have to vote on the record for the policies they support. A separate Senate enforcement bill on ICE and visa oversight is moving on a parallel track. If the administration wants to end in-country adjustment of status as the default, those are the vehicles. A floor vote. Public debate. Members defending the change in their districts.

The reason that route is harder than a memo is the reason it exists. Hard is the feature.

What happens now

Litigation is coming. Multiple immigration law firms have begun reviewing the memo for APA challenges, and the legal theory writes itself: USCIS imposed a substantive new rule of conduct — one that determines whether hundreds of thousands of statutory beneficiaries can use a benefit Congress created — without notice, comment, or a final rule. After Loper Bright, the agency’s odds are not as comfortable as the press release suggests.

In the meantime, hundreds of thousands of people sit on pending applications filed under one set of rules and now possibly adjudicated under another. The memo does not say what happens to them. That ambiguity is itself a small, daily harm — applicants who do not know whether to spend the money on consular processing, on housing abroad, on a lawyer to draft an “extraordinary circumstances” brief, or on simply waiting and hoping. Every day without an answer is another day of uncertainty borne by people who did nothing wrong.

The substantive immigration policy this memo encodes might survive a serious legislative fight. It might not. But it should have to have that fight. A four-page memo published on a Thursday does not carry the constitutional weight to rewrite a sixty-year practice millions of people have organized their lives around. The right way to change the rules is the slow, public, accountable one. The wrong way is the one the agency just chose.