The pathway to permanent residency in the United States or Green Cards could become significantly more difficult for thousands of South Asian and other immigrants currently living and working here because of a newly announced immigration policy.

The memorandum from the U.S. Citizenship and Immigration Services (USCIS) announced on May 22 could mark one of the most consequential procedural changes to the employment-based immigration system in recent years, much like the $100,000 H1B fee announcement last year.

The memo reiterates what the USCIS describes as the “original intent” of immigration law: foreign nationals seeking lawful permanent residence should generally pursue immigrant visa processing through U.S. consulates abroad rather than adjusting status from within the United States.

Under the updated guidance, USCIS officers are instructed to evaluate adjustment-of-status requests on a case-by-case basis and grant such relief only in “extraordinary circumstances.”

“We’re returning to the original intent of the law to ensure aliens navigate our nation’s immigration system properly,” USCIS spokesman Zach Kahler said in the agency statement. “From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”

The agency stated that the change is intended to discourage visa overstays and ensure that temporary visas are used only for their intended short-term purposes. The USCIS also argued that shifting more immigrant visa processing to the Department of State would free agency resources to focus on other priorities, including naturalization applications and humanitarian cases.

Curiously though, the USCIS does not seem to have taken into consideration the fact that U.S. diplomatic missions abroad, particularly in a country like India, are already overburdened and this policy change could make their task even more demanding.

Employment-Based Applicants May Feel Greatest Impact

Whether intentional or unintentional, the policy could have particularly significant consequences for employment-based Green Card applicants, many of whom have traditionally relied on adjustment of status (AOS) while continuing to live and work legally in the U.S. There is a large number of Indian immigrants who stand to face significant disruption and delay because of this policy shift.

Current immigration trends indicate that the overwhelming majority of employment-based Green Cards are completed through adjustment of status rather than consular processing. For many skilled workers already employed in the U.S., the ability to remain in the country during the final stages of Green Card processing has been a central feature of the employment-based immigration system.

The new guidance may create a distinction between applicants who can demonstrate humanitarian or extraordinary circumstances and those pursuing employment-based permanent residency through conventional legal channels. While certain applicants could potentially qualify for exceptions due to safety or persecution-related concerns in their home countries, employment-based applicants may face greater difficulty establishing eligibility for such exemptions.

Concerns Over Consular Processing Delays

The announcement also raises questions about the operational capacity of U.S. consulates overseas, many of which continue to face substantial visa appointment backlogs and staffing challenges.

If a larger number of employment-based applicants are required to leave the U.S. for immigrant visa interviews abroad, consular wait times could increase further. Applicants may also face prolonged administrative processing or delays in visa issuance, potentially leaving workers and their families stranded outside the United States for uncertain periods.

Such disruptions could affect not only immigrants themselves, but also U.S. employers who depend on highly skilled foreign workers in industries such as technology, healthcare, engineering, and research.

Increased Discretion for Immigration Officers

Another notable aspect of the memorandum is the broader discretion granted to both USCIS officers and consular officials abroad.

The policy directs officers to review applications individually and consider “all relevant factors and information” when determining whether adjustment of status should be permitted from within the United States.

Greater discretionary authority may lead to increased uncertainty for applicants, particularly in employment-based cases where outcomes could vary depending on how officers interpret “extraordinary circumstances.”

For decades, adjustment of status has provided a stable pathway for skilled workers to transition from temporary visas to permanent residence without interrupting their employment or uprooting their families. Greater discretionary authority may lead to increased uncertainty for applicants, particularly in employment-based cases where outcomes could vary depending on how officers interpret “extraordinary circumstances.”

(The writer is a Silicon Valley-based immigration attorney and CPA specializing in domestic and international corporate tax planning. Views expressed are personal. He can be reached at bhatia@bhatiaco.com)