CBP Vacates Expedited Removal Order + Grants Withdrawal of Application for Admission = A True Success Story

Posted on May 27, 2026 | Comments Off on CBP Vacates Expedited Removal Order + Grants Withdrawal of Application for Admission = A True Success Story

Less than 3 months after receiving our request for relief, the U.S. Customs & Border Protection (CBP) vacated its Expedited Removal Order and INA 212(a)(7)(A)(i) Inadmissibility Finding against my client and granted her a retroactive Withdrawal of Application for Admission. Thus, the CBP no longer deems her to be an intended immigrant without a proper visa, as charged at the U.S. port of entry. By rescinding the Expedited Removal Order, it vacated the 5-year bar to entry under INA 212(a)(9)(A)(i).

Denial of F-1 Student Admission Despite Having a Valid Passport, Visa and Other Travel Documents

Section 212(a)(7)(A)(i)(I) states a person is inadmissible to the United States if he is an intended immigrant without a valid immigrant visa or other valid entry document. It is most often used by CBP to deny entry to a nonimmigrant who is believed to have engaged in unauthorized U.S. employment or has plans to do so.

At primary inspection before the CBP, my client requested entry to the United States to begin her F-1 Optional Practical Training (OPT) with a legitimate U.S. employer. Along with her valid passport containing the F-1 student visa, she had her updated Form I-20 (Certificate of Eligibility for Nonimmigrant Status), Employment Authorization Document (EAD)/work card, and job offer letter.

Prior to traveling back to the United States, she had used an online platform to secure an apartment that was close to her intended workplace. She paid a deposit after communicating with the landlord through text messages. She planned to go directly to the rental property upon arrival, check the room condition, and sign the lease if everything was satisfactory.

Instead of admitting her in F-1 status, the CBP inspected her electronic devices and found her communications regarding the apartment. They searched the rental address online and discovered that it was associated with a daycare business. By telephone call, they contacted an individual who they identified as the daycare operator and said they were informed that my client was expected to work there. She had no employment authorization to perform daycare job duties, which were outside her field of study.

Based on this incorrect information, my client was taken to secondary inspection for further questioning. Ultimately, the CBP presumed that she would work at the daycare business located on the first floor of the residential home where she had arranged to live. But she had actually planned to rent the room on the second floor because it was close to her place of employment.

Facts and Arguments Supporting Rescission of Expedited Removal Order and INA 212(a)(7)(A)(i) Finding

During secondary inspection, my client explained that she had learned of the daycare business, on the first floor, from the previous tenant who mentioned it may cause some noise. She made clear that daycare work was never discussed or agreed upon, and that such employment would violate F-1 OPT regulations and conflict with her scheduled work hours, as stated in the employer’s offer letter and recruitment posting. The F-1 OPT position also required in-office presence and did not permit remote work. 

After searching her personal belongings and inspecting her phone, the CBP found only text-based conversations with the landlord regarding rental matters—no phone calls, no agreements, and no employment-related discussions with anyone from the daycare. Despite her repeated explanations, the CBP officers stated that if no employment arrangement existed, the daycare operator would not have provided details about workhours and pay on the telephone call.

In the Motion to Reconsider to CBP, I explained that my client’s sole purpose for requesting entry was to begin her lawful OPT employment. She had no plans or agreements to work at a daycare center or outside her field of study. It made no sense for her to work without authorization when she had already secured a full-time, paid OPT position.

Because she possessed all required travel documentation, had a qualifying F-1 OPT position directly related to her degree, and did not seek to work outside the scope of her authorization, there was no basis to determine that she was inadmissible under INA 212(a)(7)(A)(i)(I). The evidentiary record showed that her intent was fully compliant with U.S. immigration laws and rules.

The CBP made no finding that she had failed to maintain her F-1 status during prior stays, committed fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits, or otherwise violated U.S. immigration laws, rules or policies. Instead, it based its adverse decision on a presumption that she intended to engage in unauthorized employment upon entry. It disregarded my client’s credible testimony and documentary evidence showing she had a legitimate F-1 OPT position.

To support the Motion, we presented the employment offer letter and email communications with the F-1 OPT employer – both before and after the Expedited Removal Order – establishing she had intended to work in her field of study. We also provided documentary evidence reflecting my client had arranged to rent a 2nd floor room in a two-story residential home, not in a commercial building. But when she requested admission at the U.S. port of entry, the CBP looked up the address and found that it was associated with a daycare business (kindergarten service).

In her affidavit (written testimony), my client clarified that she knew a daycare was located on the first floor, but she never inquired about working there. In addition, we presented written declarations from the daycare manager and the landlord stating they did not discuss any employment, work or job arrangements with my client. All her text messages with the landlord and the prior tenant indicate that she sought to rent the 2nd floor room only.

In the legal memorandum, I described the hardships that the Expedited Removal Order caused or would cause my client. For example, the section 212(a)(7)(A)(i)(I) finding would make it very difficult for her to overcome the presumption of immigrant intent, under INA 214(b), to receive an F-1 student visa, B1/B2 visitor visa or other nonimmigrant visa in the future.

Furthermore, the 5-year bar would require her to apply for and obtain a Consent to Reapply for Admission Following Expedited Removal before a visa could be issued. Frequently called the “I-212 waiver” – which is different from the 212(d)(3) waiver – the CTR is the official remedy for lawfully returning to the U.S. before the 5-year bar expires. But it has several drawbacks.

If the person needs a visa stamp for the purpose of her trip to the U.S., she must go through the U.S. Consulate or Embassy to request the CTR in connection with the visa application. This creates an extra hurdle because the U.S. Consulate or Embassy must first recommend the CTR for it to be forwarded to the CBP’s Admissibility Review Office (CBP-ARO) for adjudication. If there is no recommendation, there is no review by CBP-ARO on the merits of the application.

In addition, even when the CTR is recommended, it takes several months for CBP-ARO to make a decision. And when granted, it is not transferrable to a new visa. Until the 5-year bar expires, the applicant must go through the process again if she needs a new visa for re-entry to the United States.

CBP Grants Request for Relief

In its decision, the CBP noted that based on the applicable documents and information, a grant of discretion was appropriate. It rescinded the Expedited Removal order and all related charges, including the 5-year bar to entry. In lieu of an Expedited Removal Order, the CBP updated my client’s records to reflect that she withdrew her application for admission.

This is a true success story for the client and Dyan Williams Law PLLC.

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This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Executive Order Cracks Down on Birth Tourism: Effects & Consequences for Nonimmigrants

Posted on August 21, 2026 | Comments Off on Executive Order Cracks Down on Birth Tourism: Effects & Consequences for Nonimmigrants

Entering the U.S. on a nonimmigrant visa to give birth on American soil and obtain birthright U.S. citizenship for the newborn child is known as Birth Tourism. Executive Order 14419, issued by the Trump Administration on August 6, 2026, is meant to end Birth Tourism and further prohibit any foreign national from helping a visitor to enter the U.S. to give birth.

Link Between Birthright Citizenship and Birth Tourism

Under the 14th Amendment of the U.S. Constitution, birth in the United States gives the child automatic citizenship with all its rights and privileges, even if the parents are not U.S. citizens or permanent residents or have no authorized stay in the U.S.

Birth citizenship also provides the foreign national parent with potential immigration relief. For example, upon turning age 21, a U.S. citizen son or daughter may file an immigrant petition for a parent in the Immediate Relatives category, which has no numerical limits on immigrant visas available.

Prior Executive Order to Limit Birthright Citizenship 

The Trump Administration has stated that “Citizenship is not a commodity to be acquired through calculated exploitation and evasion of the immigration laws, such as by entering the United States on a nonimmigrant visa for the purpose of giving birth within the Nation’s borders.”

The Administration previously issued Executive Order 14160 on January 20, 2025, to deny the issuance of documents or acceptance of documents recognizing U.S. citizenship to two groups of U.S.-born children:  (1) those whose mother was unlawfully present in the United States and whose father was not a U.S. citizen or  permanent resident at the time of birth or (2) those whose mother’s presence in the United States was lawful but temporary, and whose father was not a U.S. citizen or permanent resident at the time of birth.

Several U.S. states and nonprofit organizations challenged the Executive Order in federal courts, which blocked its implementation. On June 30, 2026, the U.S. Supreme Court settled the question in Trump v. Barbara, a class-action lawsuit filed by the American Civil Liberties Union and other groups on behalf of affected families. In a 6-3 decision, the Supreme Court ruled that Executive Order 14160 violates the 14th Amendment, which is interpreted to mean that children born on American soil are U.S. citizens, regardless of whether the parents are unlawfully or temporarily present in the U.S.

Chief Justice John Roberts wrote: “Citizenship, then and now, was the right to have rights — to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to ‘every free-born person in this land.’ …We keep that promise today.”

Due to the federal courts’ orders and the Supreme Court’s decision, the Executive Order to restrict birthright citizenship never went into effect.

Executive Order to End Birth Tourism is Narrower

About a month after the Supreme Court’s decision, the Trump Administration issued Executive Order 14419 to end Birth Tourism. Instead of redefining birthright citizenship, it reduces access to it.

The U.S. Department of State (DOS) and Department of Homeland Security (DHS) are instructed to update rules, policies, procedures or guidance as necessary and to take actions to enforce the Executive Order, including:

  • denying a visa or other travel authorization to an applicant entering or attempting to enter the United States for the purpose of engaging in birth tourism;
  • revoking the visa or travel authorization and permanently barring entry of any applicant who enters or attempts to enter the United States for the purpose of engaging in birth tourism;
  • denying entry to or removing an applicant who previously engaged or plans to engage in birth tourism;
  • fighting against entities, organizations, or individuals, within or outside of the United States, responsible for facilitating or enabling birth tourism in any manner.

The DOS and DHS may exempt a foreign national from actions taken pursuant to this order on humanitarian or national interest grounds, based on their discretion.

The Executive Order is a change in policy, not U.S. immigration law or the U.S. Constitution. Furthermore, Birth Tourism involves entries for the main purpose of giving birth, not incidental pregnancy during lawful H-1B employment, F-1 studies, or other legitimate authorized stays.

Implementation of Birth Tourism Prevention Task Force

On August 12, 2026, the U.S. Department of State said it established the Birth Tourism Prevention Task Force and “is using all available tools to defend the integrity of U.S. citizenship, ensure nonimmigrant visas are used only for their lawful and intended purposes, and prevent their exploitation through birth tourism.”

The Fact Sheet from the Office of the Spokesperson states the Task Force:

  • reviews the activities of visa holders worldwide to identify instances of birth tourism, take action to revoke visas of those who engage in or facilitate it, and dismantle the networks that profit from this abuse.
  • addresses the abuse by analyzing and connecting information held across the Department and other federal agencies, including the Department of Homeland Security (DHS).
  • coordinates with the Department of State to address birth tourism on a global scale, examining travel histories of individuals from all around the world in order to end this exploitation and abuse.
  • has taken action to revoke more than 600 visas from foreign nationals across the globe to safeguard the nation from this abuse.

Previous Actions Against Birth Tourism

In the past, there was no specific law, regulation or policy prohibiting birth tourism per se or preventing a pregnant woman from entering the United States. Nonetheless, U.S. consular officers and customs officers often view it as a misuse of the visitor visa status and a gaming of the immigration system to give the child automatic citizenship.

On January 24, 2020, during the first term of the Trump Administration, a new rule was issued to restrict travel on a B visitor visa primarily to give birth in the United States. The updated U.S. Department of State Foreign Affairs Manual states the following on B-2 Tourist Visas:

“Travel to give birth in the United States: Visiting temporarily for pleasure does not include travel for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States. Any B nonimmigrant visa applicant who you have reason to believe will give birth during their stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child. The applicant can overcome this presumption if you find that the primary purpose of travel is not obtaining U.S. citizenship for a child.”

If officers have reason to believe the applicants will give birth during their stay in the United States, they are required to presume that giving birth to obtain U.S. citizenship is the applicant’s primary purpose of travel.  The applicant may overcome the presumption if they show, to the consular officer’s satisfaction, they have a different and permissible primary purpose of travel.

Examples are: (1) applicant’s primary purpose for travel is to visit a dying family member, and during the visit the applicant may give birth in the United States because the pregnancy due date overlaps with the family member’s last expected months of life; (2) medically complicated pregnancy and arrangement for specialized medical care in the United States, because such specialized care is not available in or near the country where the applicant resides.

If the officer sees the applicant is pregnant at the time of applying for a tourist visa or requesting admission as a visitor, he may refuse the visa or deny entry. This is why birth tourists who hail from various countries such as China, Taiwan, South Korea, Russia, Brazil and Mexico, typically come to the United States when their pregnancy is not so obvious.

Because a visitor visa may be used for medical treatment, your showing that giving birth in the United States served or serves a health purpose can be a positive factor. An example is if the pregnancy comes with high risks or serious complications. When you declare you are coming to the U.S. to give birth, and there is a lack of medical care in or near your country, the officer may grant the visa or admission based on proof of strong ties to your country, nonimmigrant intent, sufficient funds to cover all medical costs, and legitimate purpose of travel.

Paying all medical bills or having your own medical insurance to cover the expenses related to childbirth can help prevent a visa refusal or denial of admission. Ultimately, however, the consular officer or customs officer has discretion to determine whether having a baby in the U.S. is inconsistent with the purpose of a visitor visa. If they find that this is your main purpose, instead of for recreational or business travel or medical treatment, they will refuse your request, even if you can cover the medical expenses and will not receive government assistance to pay the bills.

Practical Effects and Consequences

Longstanding U.S. immigration law allows a consular officer to deny a B-1/B-2 visitor visa or other non-dual intent visa under INA 214(b) (failure to overcome presumption of immigrant intent). Giving birth during a prior visit might cause the officer to suspect you will do this again.

A non-resident parent who travels with a U.S. citizen child may face tougher scrutiny at the U.S. port of entry. A customs officer who discovers you had a child during a prior visit in the U.S. may deny your request for admission on a temporary visa and even issue an expedited removal order, which carries a five-year bar under INA 212(a)(9)(A)(i). Until the bar expires, the person will need a Consent to Reapply for Admission or approved Form I-212 application to receive a U.S. visa or U.S. entry.

In some cases, a consular officer or customs officer may issue a more serious charge under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain a visa or entry to the United States), which is a lifetime bar. When such an inadmissibility finding is made, you may appeal directly to the agency to reconsider and rescind the decision on the basis that giving birth in the U.S., by itself, does not make you inadmissible. But as long as the section 212(a)(6)(C)(i) bar holds, you will need a 212(d)(3) nonimmigrant waiver or a Form I-601/212(i) immigrant waiver to be admitted to the United States

Even if you succeed in gaining a visitor visa or entering the United States as a visitor to give birth, you might still encounter problems in the future when you apply for a new visa or admission as a nonimmigrant. Also, in some cases, an existing visa may be revoked or cancelled. Federal regulations under 22 CFR 41.122 allow U.S. consular officers to revoke a nonimmigrant visa at any time, at their discretion. A U.S. Customs & Border Protection officer at the U.S. port of entry may also revoke (physically cancel) the visa in certain situations. 

Short of banning birthright citizenship, the Executive Order serves to discourage nonimmigrants from traveling to the U.S. specifically to give birth and get automatic citizenship for their newborn children. Nonimmigrants who have visas to work or study in the United States should be less affected than temporary visitors, as giving birth in the U.S. would be more incidental to their authorized stay.

The DOS and DHS are expected to rollout implementing guidance on how they will apply the Executive Order. Whether this Presidential Action holds up under any federal court action will need to be monitored over the next several months.

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This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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“Expeditious” Naturalization: Who Can Get It and What Does It Mean?

Posted on June 8, 2026 | Comments Off on “Expeditious” Naturalization: Who Can Get It and What Does It Mean?

When a permanent resident seeks to become a naturalized U.S. citizen, he must file a Form N-400, Application for Naturalization, with USCIS. Among the general eligibility requirements are Continuous Residence and Physical Presence in the United States. But these standards are more flexible for a naturalization applicant with:

  • A U.S. citizen spouse working for a qualified employer outside the United States;
  • Military service during period of hostilities; or
  • At least one year of honorable military service at any time, including when the nation is not at war. 

Applicants in any of these 3 categories qualify for “expeditious” naturalization. This means they may file their Form N-400 applications earlier than usual – because they are exempt from normal residency requirements. Continuous residence involves maintaining a permanent dwelling place or principal residence in the United States over the period of time required by the statute. Physical presence concerns the total number of days you are physically in the U.S. during the period required for naturalization.

The wait time between the naturalization interview and the oath ceremony might also be shorter than it is for normal applications. 

Expeditious naturalization does NOT mean applicants are spared from meeting other eligibility requirements, such as good moral character, English language ability, and knowledge of U.S. civics. Background checks, naturalization interviews, and oath ceremonies are also still required. 

Normal Paths to Naturalization

General Provision (5 Years of Continuous Residence | 30 Months of Physical Presence).

Generally, applicants must have at least five years of continuous residence and at least 30 months of physical presence in the U.S. during the 5-year period to apply for naturalization. 

Spouse of a U.S. Citizen (3 Years of Continuous Residence | 18 Months of Physical Presence).

Applicants who are married to a U.S. citizen may file for naturalization after just three years, instead of five years, of continuous residence. They must also have been physically present in the U.S. for at least 18 months during the 3-year period. 

To qualify for this provision, you must have lived in marital union with your U.S. citizen spouse for the entire three-year period prior to filing for naturalization. This means you are physically living together as a married couple. Legal separations or keeping separate residences can disqualify you, even if there is no divorce. 

The spouse must also have been a U.S. citizen for the full three years. If they recently switched from being a permanent resident to a U.S. citizen, the 3-year period begins from when they naturalized, not from when you became a green card holder. 

VAWA applicants may also use the three-year provision even if the marriage to the U.S. citizen has ended. They include spouses, former spouses, and children of a U.S. citizen who obtained permanent residence under the Violence Against Women Act (VAWA).

Expeditious Paths to Naturalization

Spouse of a U.S. Citizen Stationed Abroad Due to Qualifying Employment. 

If your U.S. citizen spouse is working abroad for a qualified employer, you may apply for naturalization with no continuous residence or physical presence in the United States. In short, you are exempt from the 5 or 3-year residence requirement. But you must be physically present for the naturalization interview and oath ceremony. 

Qualified employers include:

  • The U.S. government. 
  • An American research institution recognized by the Attorney General. See List of Recognized American Institutions of Research and Other Recognized Organizations | USCIS.
  • A public international organization in which the U.S. participates by treaty or statute.
  • An American firm or corporation that is developing U.S. foreign trade and commerce, in whole or in part.
  • A religious denomination or an interdenominational mission organization and your U.S. citizen spouse is performing the ministerial or priestly functions of the religious denomination or is serving as a missionary, brother, nun, or sister for the religious denomination or interdenominational mission.

The spouse must be obligated to work outside the U.S. for the qualified employer for at least one year from the date of the Form N-400 filing. The applicant must include a written statement declaring his intent to live outside the U.S. with the spouse and to live in the U.S. immediately after the spouse’s qualified employment ends. There must also be proof of the employer’s name and nature of business and the nature of the spouse’s work. 

If the overseas position relates to the U.S. military, the applicant must provide a DD Form 1278 (Certificate of Overseas Assignment) or a combination of the spouse’s travel orders and a letter from their commanding officer (issued within 90 days of U.S. departure). 

Military Service During Period of Hostilities.

During certain periods of military hostilities, an applicant in the U.S. armed forces may apply for naturalization immediately. Because there is no continuous residence or physical presence requirement, the filing could be as early as day one of enlistment. You must, however, be in the United States, a qualifying territory, or on a qualifying military installation at the time of enlistment. Besides active-duty officers, members of the Selected Reserve of the Ready Reserve also qualify for this expeditious path. 

Executive Order 13269 – Expedited Naturalization of Aliens and Noncitizen Nationals Serving in an Active-Duty Status During the War on Terrorism, signed on July 3, 2002, by President George W. Bush, has no end date. It remains in effect until a future president issues a new order terminating it. 

The first five years of service serves as probationary period for naturalization. If you leave the military without honorable conditions before completing five years of service, your citizenship may be revoked. The U.S. government may also initiate denaturalization proceedings against you.

At Least One Year of Honorable Military Service at Any Time. 

At any time, including periods of peace, applicants who have at least one year of honorable service in the U.S. armed forces may apply for naturalization without meeting the continuous residence or physical presence requirement. The Form N-400 application must be submitted to USCIS while you are still serving in the military or within six months of an honorable discharge. 

The one year of service does not need to be continuous. Separate periods that make up at least a year will count, but you will need to show good moral character during the gaps between service periods. 

Expeditious Naturalization Does Not Waive Other Eligibility Requirements or Speed up the Processing of the Form N-400

Good Moral Character

Naturalization applicants must prove they have been and continue to be persons of good moral character (GMC). USCIS conducts a holistic evaluation of the applicant’s conduct, adherence to social norms, and positive contributions that establish good moral character.

There are conditional bars to demonstrating GMC, such as Crimes Involving Moral Turpitude during the statutory period. There also permanent and unconditional bars to establishing GMC that rule out naturalization. They include a conviction for murder at any time, a conviction for an aggravated felony on or after November 29, 1990, and participation in Nazi persecutions, torture and genocide. 

English and Civics Tests

Even if you are eligible for an expedited path to naturalization, you must still pass the English language and civics tests – unless you qualify for an exemption. The English test covers basic reading, writing, and speaking. The civics test covers U.S. history and government.

The following Age and Residency-Based Exemptions apply to naturalization applicants: 
50/20 rule: If are over age 50 and have been a permanent resident for at least 20 years, you are not required to take the English test and may take the civics test in your native language.

55/15 rule: If you are over age 55 and have been a permanent resident for at least 15 years, you are not required to take the English test and may take the civics test in your native language.

65/20 rule: If you are over age 65 and have been a permanent resident for at least 20 years, you are not required to take the English test and will receive accommodation on a simplified civics test in your native language.

There is a separate exemption for applicants with a physical, developmental, or mental impairment that prevents them from meeting the English or civics requirements. Medical documentation on a Form N-648, Medical Certification for Disability Exceptions, must be submitted with the naturalization application. 

Lawful Admission as a Permanent Resident

USCIS will verify whether the naturalization applicant properly obtained permanent resident status. Questions regarding fraud or willful misrepresentation of material facts to obtain U.S. immigration benefits or abandonment of LPR status may arise during this process. 

A person who was granted conditional residence (conditional two-year green card) must file the Form I-751, Petition to Remove Conditions of Residence, to maintain LPR status after the green card expires. Without LPR status, the person is not eligible for naturalization. If the I-751 petition is still pending at the time of the naturalization interview, USCIS will first make a decision on it before adjudicating the N-400 application.  

For more information, see related articles: 

5 Questions to Ask Yourself Before You File for Naturalization (U.S. Citizenship)

Staying Abroad Too Long May Affect Eligibility for Naturalization

Fraud, Lies, and USCIS: Pitfalls in Naturalization

Form I-751: Removing Conditions on Permanent Residence When Marriage is on the Rocks

Before you apply for naturalization, consult a U.S. immigration attorney to verify your eligibility and to discuss violations that may put you at risk of being placed in removal proceedings and losing your green card status. 

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This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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USCIS Green Card Memo: Should You File for I-485 Adjustment of Status?

Posted on May 26, 2026 | Comments Off on USCIS Green Card Memo: Should You File for I-485 Adjustment of Status?

Form I-485, Adjustment of Status is for eligible applicants who are already in the United States and are seeking to obtain a green card. USCIS Policy Memorandum PM-602-0199, issued on May 21, 2026, instructs USCIS officers to consider adjustment of status an “extraordinary” relief. This means USCIS may deny adjustment applications, as a matter of discretion, if it determines the applicant should instead apply for an Immigrant Visa at the U.S. Embassy/Consulate abroad.

The policy does not change the eligibility requirements to obtain a green card through the Form I-485 application process. Rather, it emphasizes that adjustment to permanent residence within the United States is a discretionary benefit, instead of an entitlement or normal path to receiving a green card.

USCIS officers are expected to more carefully consider whether a Form I-485 applicant deserves approval, based on the totality of circumstances and the best interest of the United States. The Policy Memo directs USCIS officers to apply higher discretionary scrutiny in weighing the positive versus the negative factors. It notes that unless Form I-485 applicants have unusual or outstanding equities, USCIS may not permit them to bypass the Immigrant Visa application process.

The Policy Memo states that with limited exceptions, the statutory scheme suggests that Congress expects paroled and nonimmigrant applicants to depart for Immigrant Visa processing, rather than apply for adjustment of status. It adds that an attempt to avoid the consular immigrant visa process is usually accompanied by violations of U.S. immigration laws. And these negative factors must be offset by the showing of unusual or even outstanding equities.

New applicants or applicants with pending cases should prepare to show favorable factors to warrant an approval, under the totality of the circumstances. They should also address how any negative factors are not enough to support a denial. Information and documents may be submitted with the Form I-485 application or in response to a Request for Evidence or Notice of Intent to Deny from USCIS.

Positive Factors that USCIS Considers

In deciding whether to approve the Form I-485 application, on discretionary grounds, USCIS considers positive factors. Examples are:

  • Strong family ties, such as a bona fide marriage to a U.S. citizen or permanent resident.
  • Hardship to the applicant or close relatives if the adjustment application is denied.
  • Service in the U.S. armed forces.
  • Long authorized stay and maintenance of valid nonimmigrant status, such as H-1B and L-1.
  • Property, investment, or business ties in the United States, especially when they add to the nation’s economic interests.
  • Education, skills and training that are highly beneficial and are relevant to the applicant’s current or prospective employment.
  • Lack of a criminal record.
  • Compliance with tax laws.
  • Voluntary community service to society.

Negative Factors that USCIS Considers

In determining whether to deny the application, as a matter of discretion, USCIS considers negative factors, such as:

  • Absence of close family and community ties in the United States.
  • Violating the terms of parole or temporary status like F-1 student or B-1/B-2 visitor, by working without authorization, overstaying the authorized period or switching quickly to another status.
  • Fraud or false testimony in dealings with USCIS or any other government agency.
  • Entering a sham marriage to a U.S. citizen or permanent resident for the purpose of obtaining U.S. immigration benefits.
  • Criminal history, especially when it involves serious crimes, multiple offenses, or recent violations.
  • Failure to pay taxes owed or child support.
  • Public safety or national interest concerns, such as applicants who have endorsed or promoted anti-American views or views of a terrorist group on social media.

Although the shift in policy will affect a wide range of applicants, it is likely to have NO or LESS of an impact on:

  • K-1 fiance nonimmigrants who enter the U.S. specifically to marry a U.S. citizen and then apply for a marriage-based green card, plus their K-2 minor children.
  • Immediate relatives of a U.S. citizen because they have statutory exemptions for certain status violations, like failing to maintain lawful status or overstaying the authorized period. (An Immediate Relative is a U.S. citizen’s spouse; a U.S. citizen’s unmarried child under 21; or a U.S. citizen’s parent – if the citizen is age 21 or older).
  • H-1B and L-1 nonimmigrants who are allowed to have dual intent, plus their H-4 and L-2 spouse and minor children.
  • O-1, TN, E-2, and E-3 visa holders who are maintaining continuous lawful status through authorized employment in the U.S.
  • Refugees and asylees who file for adjustment of status under INA 209(c), not 245(a).
  • Humanitarian-based T and U visa applicants.
  • VAWA-based applicants.
  • Special Immigrant Juveniles (SIJs).

Shortly after the Policy Memo went into effect, USCIS began issuing Requests for Evidence to certain Form I-485 applicants, which asks the following:

1. Why did you apply for Adjustment of Status instead of go through consular processing?

2. Are there any factors that prevent you from applying through consular processing?

3. Why did you not return to your home country when your authorized period of stay expired and you became out of status?

4. Do you have any family still living in your home country?

USCIS will issue an RFE when the evidence or information submitted with the application is not enough for them to make a decision. It is not a Notice of Intent to Deny (NOID), which is when USCIS gives you one last opportunity to respond with additional evidence or information after finding that a denial is likely.

Options if USCIS Denies Your Form I-485 Application

When USCIS denies a benefit request, it must issue a written denial notice explaining the specific reasons for the decision. If the denial is based on an unfavorable exercise of discretion, the denial notice must describe the positive and negative factors considered, along with an explanation of why the negative factors outweigh the positive factors.

If USCIS denies your Form I-485 application as a matter of discretion, but you otherwise meet the eligibility requirements to obtain a green card, you have four main options:

Submit a Motion to Reconsider or Reopen to USCIS. This involves timely filing the Form I-290B, Notice of Appeal or Motion with the appropriate USCIS office, explaining how USCIS made the wrong decision or requesting USCIS consider new and material evidence that was unavailable in the prior application.

File a new Form I-485 Application with USCIS. This must include new, material information and documents demonstrating extraordinary circumstances to obtain the “extraordinary” relief of adjustment of status.

Apply for an Immigrant Visa through consular processing. This requires you to depart the United States, submit the Form DS-260 Immigrant Visa application and other required documents to the U.S. Department of State, and attend a scheduled visa interview at the U.S. Embassy/Consulate. You will need to obtain a Form I-601 or I-601A waiver if you are subject to being found inadmissible upon departure from the United States, due to accrual of unlawful presence.

Unlawful presence begins on day one of when you remain in the U.S. beyond your authorized period, if you are age 18 or older, and have no change or extension of status application pending with USCIS. Accruing more than 180 days to less than one year of unlawful presence creates a 3-year bar to re-entry under INA 212(a)(9)(B). The bar is 10 years if the unlawful presence lasted one year or more.

Remain in the U.S. without lawful status and wait to receive a Notice to Appear (Form I-862) in removal proceedings before the Immigration Court from the U.S. Department of Homeland Security. You may present the Form I-485 application as a defense to removal, assuming you are statutorily eligible for this relief, but USCIS denied it as a matter of discretion.

In some cases, pursuing Form I-485 adjustment in removal proceedings might be less risky than consular processing, where you could be stuck abroad due to the unlawful presence bar or other inadmissibility issues, administrative delays, and U.S. travel bans preventing Immigrant Visa grants. But if the Immigration Court denies your I-485 application, you could end up with a Removal Order, instead of a Voluntary Departure grant. This would then make you inadmissible for 10 years under INA 212(a)(9)(A)(ii). You would need an approved Form I-212, Application for Consent to Reapply for Admission, to receive the Immigrant Visa abroad before this 10-year bar expires.

Get proper legal advice to help you choose your best option if your I-485 is denied.

Congress passed laws to make adjustment of status available to Immediate Relatives of U.S. citizens and other eligible applicants. Policies are guidelines on how to apply the laws. They are more flexible and temporary and can be changed or updated more easily. Whether the USCIS Policy Memo will stand up against federal court litigation or other challenges is uncertain. There could be more guidelines on how it affects different categories of applicants on a case-by-case basis.

Although the USCIS Policy Memo discourages adjustment of status, eligible Form I-485 applicants are not forbidden from applying for it when the law does not prohibit them from doing so.

Consult an experienced U.S. immigration attorney to help you (1) assess your eligibility for Form I-485, adjustment of status, (2) demonstrate the positive factors warrant a favorable exercise of discretion, and (3) supplement your pending Form I-485 application or strengthen a new application.

For more information on the Form I-485 adjustment process, see:

Who is Eligible (and Not Eligible) for Adjustment to Permanent Resident Status?

Adjusting to Permanent Resident Status Under INA 245(a): Bars, Exceptions and Exemptions

A Key Requirement for I-485 Adjustment to Permanent Resident Status: Inspection and Admission OR Inspection and Parole

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

When do you need an I-212 Waiver (and how do you get it)?

The current USCIS Policy Manual – shown below – may be updated after the release of the Policy Memo titled, Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary
Consular Visa Process.

USCIS Policy Manual – Chapter 10 – Legal Analysis and Use of Discretion – as of May 26, 2026Download

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USCIS Policy Manual – Chapter 8- Discretionary Analysis – as of May 26, 2026Download

# # # This content is general information and is for educational purposes only. It is based on current U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and even cases that seem similar can have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigrant Visa Suspension for 75 Countries: Public Charge Concerns Cited as the Reason

Posted on January 16, 2026 | Comments Off on Immigrant Visa Suspension for 75 Countries: Public Charge Concerns Cited as the Reason

On January 14, the Trump Administration announced the suspension of Immigrant Visa processing for citizens of 75 countries.  The list includes:

Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Congo, Cuba, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Ivory Coast, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan and Yemen.

This U.S. immigration policy takes effect on January 21. This is an indefinite pause with no set date for when it will end.

“The Trump administration is bringing an end to the abuse of America’s immigration system by those who would extract wealth from the American people,” the U.S. Department of State said. “Immigrant visa processing from these 75 countries will be paused while the State Department reassess immigration processing procedures to prevent the entry of foreign nationals who would take welfare and public benefits.”

What are the Exceptions?

There is an exception for dual nationals who apply with a valid passport from a country not included in the suspension.

In addition, the suspension does not restrict applicants seeking non-immigrant visas, such as B1/B2 temporary tourist or business visas, who make up the larger percentage of visa applicants. Demand for non-immigrant visas is expected to rise for the 2026 World Cup and 2028 Olympics, which the U.S. will host or co-host.

What are the Effects on U.S. Immigration?

U.S. Consulates will not issue Immigrant Visas to applicants who are from any of the 75 countries, even if they are otherwise eligible for the visa. Although they may submit their forms and documents to the DOS, their applications will not be granted while the suspension is in effect.

During the pause, the legal paths to U.S. immigration and permanent residence will be tightened. After the suspension is lifted, applicants will still have to meet long-existing eligibility requirements.

How Does This Policy Support the Trump Administration’s U.S. Immigration Stance? 

The Trump Administration has already restricted immigrant and non-immigrant visa processing for citizens of dozens of countries, many of them in Africa, Asia and Latin America. In June 2025, it imposed U.S. travel restrictions on citizens from 12 countries: Afghanistan, Chad, Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Myanmar, Somalia, Sudan and Yemen.

The suspension is based on a November guidance directed to U.S. Embassy and Consulate officials to comprehensively and thoroughly vet visa applicants to demonstrate that they will not need to rely on public benefits from the U.S. government any time after they are admitted to the United States.

What U.S. Immigration Law Creates Public Charge Requirements?

Section 212(a)(4) of the Immigration and Nationality Act (INA) prohibits applicants from receiving an immigrant visa or adjusting to permanent residence if they are likely, at any time, to become a public charge. To show they are not inadmissible on this ground, a Form I-864, Affidavit of Support, filed on their behalf is required in most family-based and some employment-based immigrant visa or adjustment cases.

In his first term, Trump and his Administration introduced a new Final Rule on August 14, 2019, which amended how U.S. immigration agencies applied section 212(a)(4). The 2019 Rule gave USCIS more discretionary power to deny Form I-485 green card requests and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground. The rule was set to take effect on October 15, 2019, i.e. 60 days after its publication. But federal court litigation delayed the implementation of the rule to February 24, 2020.

Then on March 9, 2021, the Public Charge rule under the prior Trump Administration was vacated and removed. USCIS and the U.S. Department of State returned to the old 1999 rule to determine whether a person is likely to become a public charge on the U.S. government.

The August 8, 2024 (08-28-2024) update in the DOS’ Foreign Affairs Manual instructs officers to consider the “Totality of Circumstances” to determine whether the applicant is likely to become a public charge. They are to consider, at a minimum, the applicant’s:

(a) Age;

(b) Health;

(c) Family status;

(d) Assets, resources, and financial status; and;

(e)  Education or skills.

A properly filed, non-fraudulent Form I-864 in cases where it is required, is normally enough to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” test. But the factors cited above could be relevant in usual cases in which a Form I-864 has been submitted and should also be considered in cases where a Form I-864 is not required.

The public charge rule is forward looking, so officers are instructed to focus on the applicant’s present circumstances at the time of the visa application.  A visa may not be refused based on speculation about financial issues that may occur in the future, such as a loss of job or medical emergency.

Past or current receipt of cash benefits for income maintenance by a family member of the visa applicant may be factored in only when such benefits also constitute(d) the primary means of subsistence of the applicant.

It’s not clear whether or how exactly the State Department will modify instructions relating to INA 212(a)(4) inadmissibility.

For more information, see:

Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination

Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

Immigrant Visa Process: Delays and Setbacks

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The Legal Immigrant provides general information and is for educational purposes only. It is based on U.S. immigration law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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