Green card update: DHS says not all immigrants have to leave US to apply, but…

The Department of Homeland Security on Friday partially reversed course on a widely criticized announcement from the previous week, clarifying that not every immigrant applying for a green card will have to return to their home country to complete the application process, and that decisions will instead be up to individual immigration officials on a case-by-case basis.

What DHS Originally Said: Green Card Exit Requirement

The confusion stems from a US Citizenship and Immigration Services press release issued last week that appears to reverse a longstanding policy that allows immigrants to remain on US soil while waiting for permanent residency. That narrowly qualified statement said applicants would now be required to leave the country except in “extraordinary” circumstances, wording that sparked immediate alarm among immigration lawyers, trade groups and potential green card holders.

The announcement appeared to affect the roughly 820,000 people who apply for green cards annually through a process known as “adjustment of status,” which allows immigrants living in the U.S. to apply without leaving the country. In 2024, a total of approximately 1.4 million green cards were granted.

DHS Walkback: Officers “always” have case-by-case discretion

On Friday, the ministry issued a clarification that significantly narrowed the apparent scope of earlier guidance.

“This was just a reminder to officers of their discretion, which has always existed on a case-by-case basis,” a DHS spokesman, who declined to be named, said in a statement.

The spokesman pointed to two broad categories of immigrants who could be most affected: those who overstayed their visas and nationals of countries whose citizens are considered heavy users of public assistance programs.

A senior White House official, speaking on condition of anonymity, told reporters this week that the initial guidance was intended as an administrative exercise rather than a strategic policy change, although the press release announcing it made no such indication. The reports also confirmed that even some officials within the Department of Homeland Security were unsure of the scope of the change when it was first announced.

Immigration attorneys report that green card interviews are already changing

Despite the partial clarification, the situation on the spot has already shifted. Several immigration attorneys said their clients were questioned by USCIS officers during interviews earlier in the week about why they are applying for green cards in the United States and whether there are any obstacles in their country of origin.

“The public outcry has clearly sent the administration to clean up its own mess,” said Sarah Pierce, a former USCIS official who now heads social policy at the center-left think tank Third Way.

Pierce added that the “signature” of the administration’s immigration agenda has been “prioritizing shock and awe over what’s best for the country.”

Legal challenges likely, but muddled implementation complicates litigation

The original announcement was widely expected to face legal challenges. However, the unclear and contradictory nature of the guidelines has left lawyers uncertain about the most effective grounds on which to open a case.

“It makes it hard to know what you’re suing for if you don’t know what it actually is,” said Benjamin Johnson, executive director of the American Immigration Lawyers Association. “At this point, it’s too early to say what the most effective way to challenge this in court will be.”

US Chamber of Commerce pushes back on green card policy

Business lobbies were among the most vocal critics of the policy originally described. Neil Bradley, executive vice president and chief policy officer at the U.S. Chamber of Commerce, acknowledged the administration’s goals on illegal immigration but warned that the change could hurt American employers.

Bradley said policymakers should build a “more robust” legal immigration system and that the policy change could be “incredibly disruptive for employers.”

Concerns are particularly pressing for highly skilled aliens on H-1B and other work visas, many of whom have spent years waiting in line for a green card. The requirement to leave the country would not only disrupt their jobs, but could add to already long wait times given the backlog at many US consular offices abroad. Unlike USCIS domestic interviews, consular processing does not offer applicants the right to legal representation, and adverse decisions generally cannot be appealed.

“Employers are incredibly concerned about this,” said Bernard Wolfsdorf, managing partner at Wolfsdorf Rosenthal, which handles immigration matters for large technology companies. “These are the people who are at the very forefront of America’s technological advantage, and they are being driven out of the country.”

Family-sponsored green card applicants face the greatest risk

Legal experts noted that the most serious practical impact of the original guidelines, if enforced, would be on immigrants who entered the U.S. on temporary visas, subsequently married U.S. citizens and, under longstanding policy, were allowed to remain in the country throughout the green card application process, even though they had technically overstayed their original visa.

Under the original policies, as written, those forced to leave the U.S. and apply from abroad could have faced multi-year re-entry bans.

“It’s very clear that they’re trying to go after it,” said Doug Rand, who served as a senior USCIS official during the Biden administration. “Because now suddenly you can’t adjust the status and you have to go back home to your home country, it’s a joke on you, now you can’t go back for 10 years.”

Because family-sponsored applicants are less likely than employer-sponsored applicants to have an active core business visa, they are considered more vulnerable to this change.

Unanswered questions: Suspended visa processing and national interest exemptions

Considerable uncertainty remains. The U.S. guidelines do not clearly address whether applicants from the dozens of countries for which immigrant visa processing has been suspended will have to travel and apply abroad, or define what would qualify someone for a “national interest” waiver.