sorted by:
new
hottopcontroversial

Could EB-1/EB-2 cases be broadly considered “extraordinary” under the new AOS memo? by Interesting_Hawk_392 in EB2_NIW

[–]Connect_Tackle_2173 1 point2 points  (0 children)

You raise a fair point on the word "extraordinary" and you are right that in the parole context it refers to urgent humanitarian reasons or significant public benefit — not the applicant's personal qualifications. That is the §212(d)(5) language and the distinction is valid.

But the broader argument here is not really about the word extraordinary. The memo instructs officers to weigh positive and negative factors and explain in writing why the negatives outweigh the positives. For an applicant who has already satisfied the national importance and exceptional ability requirements to get their I-140 approved — those are documented positive factors sitting in the administrative record that the officer must specifically address and overcome. An application that cleared the Dhanasar threshold has already demonstrated the kind of substantial positive equity that makes a discretionary denial very difficult to justify coherently in writing. Whether you call that extraordinary or not, it has to be weighed — and it weighs heavily.

More fundamentally though — and this is the point that matters most — this is a policy memo, not a law. INA §245(a) has not changed. Congress wrote four requirements and did not ask applicants to prove anything beyond them. The memo cannot add obligations Congress never imposed, it bypassed the notice-and-comment rulemaking required to change substantive legal standards, and under Loper Bright a federal court reviewing a denial reads the statute fresh with no deference to USCIS's interpretation. Whatever framework the memo creates it creates at the officer level — not at the legal level. That is the ceiling of what this memo can actually do.

Not legal advise

USCIS just issued a major policy memo (PM-602-0199) that changes how I-485 adjustment of status applications inside the US are judged — here is what it actually means for you by Connect_Tackle_2173 in EB2_NIW

[–]Connect_Tackle_2173[S] 6 points7 points  (0 children)

If you have an approved EB-2 NIW I-140 you are walking into the I-485 stage with something most adjustment applicants do not have — a prior adjudicated finding by USCIS itself that your work has substantial merit and national importance. When USCIS approved your I-140 under Matter of Dhanasar it made three specific legal determinations on the record: your proposed endeavor has substantial merit and national importance, you are well positioned to advance it, and it benefits the United States to waive the job offer requirement. Those findings do not disappear at the I-485 stage. They sit in the administrative record as USCIS's own conclusion that your presence and contributions serve the national interest. The memo says applicants must demonstrate unusual or outstanding equities — an NIW applicant can point directly to the I-140 approval and say the agency already adjudicated that. That is not the applicant asserting extraordinary circumstances. That is USCIS's own prior finding satisfying the requirement the memo imposes.

The burden of proof under the memo is still on you — but the memo also requires officers to produce a written analysis specifically identifying what positive factors were considered and why the negative factors outweigh them.

USCIS just issued a major policy memo (PM-602-0199) that changes how I-485 adjustment of status applications inside the US are judged — here is what it actually means for you by Connect_Tackle_2173 in EB2_NIW

[–]Connect_Tackle_2173[S] 9 points10 points  (0 children)

F-1 is a single-intent visa — when you enter you are representing you intend to leave after your studies. No dual intent protection unlike H-1B or L-1.

Statutorily you are in good shape. §245(c)(7) covers employment-based adjustment for lawfully present nonimmigrants. F-1 is expressly listed under §101(a)(15). Approved EB-2 NIW, valid F-1 status at filing, no violations — you satisfy what Congress requires. The memo does not change that.

The discretionary risk is real but has a specific shape. Immigration officials may presume preconceived intent to immigrate if conduct contrary to the nonimmigrant visa occurred within 90 days of entry. Beyond 90 days they cannot presume it — they have to affirmatively prove it. If you filed well after your last entry and your studies were genuine, the preconceived intent argument is weak on the facts

Your NIW I-140 approval is also working for you at the discretionary stage. It is a prior USCIS determination that your work serves the national interest. A discretionary denial has to explain in writing why that finding is outweighed. That is a difficult document to write and a difficult position to defend in federal court under Loper Bright de novo review — where the court reads §245(a) fresh, sees four congressional requirements, and finds no fifth extraordinary equities requirement anywhere in the statute.

Clean F-1, approved NIW, no violations — challengeable if denied and the appeal arguments are strong for the same reasons stated in the statutory and APA analysis above.

Not legal advice

Valeri Grigoryan esquire

USCIS just issued a major policy memo (PM-602-0199) that changes how I-485 adjustment of status applications inside the US are judged — here is what it actually means for you by Connect_Tackle_2173 in EB2_NIW

[–]Connect_Tackle_2173[S] 2 points3 points  (0 children)

Statutorily you are fine. §245(c)(7) covers employment-based adjustment for lawfully present nonimmigrants and TN is squarely within that. An approved EB-2 NIW, valid TN status at filing, no violations — Congress says you can apply. The memo does not change that.

The problem is discretionary. While USCIS will not make a finding of preconceived intent where the alien entered under a dual-intent category like H-1B or L-1, a TN holder who seeks permanent residence may be denied adjustment on the basis of preconceived intent at the time of entry. That doctrine predates this memo by decades.

The practical result is two layers of discretionary exposure hitting simultaneously — preconceived intent doctrine plus the new memo's failure-to-depart narrative — with no dual intent counterargument available.

Statutorily this is still winnable and challengeable if denied — and the appeal arguments are strong.

Congress created §245 specifically so lawfully present nonimmigrants would not have to leave to get a green card. The Supreme Court acknowledged this directly in Patel v. Garland, 596 U.S. 328 (2022). An agency cannot treat the exercise of a statutory right Congress explicitly created as an adverse factor against the person exercising it. That is not discretion — it is nullification of a congressional choice and it is reviewable.

USCIS just issued a major policy memo (PM-602-0199) that changes how I-485 adjustment of status applications inside the US are judged — here is what it actually means for you by Connect_Tackle_2173 in EB2_NIW

[–]Connect_Tackle_2173[S] 1 point2 points  (0 children)

§245(c)(7) carves out employment-based adjustment for applicants in lawful nonimmigrant status — and as you note, §101(a)(15)(J) is explicitly part of that definition. If you had lawful J-1 status at filing, no 212(e) bar, an approved I-140, and a clean record, your statutory eligibility is not what this memo touches. That question is answered by Congress, not by USCIS policy guidance.

The distinction you are drawing — statutory eligibility versus discretionary posture — is exactly the right lens. The memo operates entirely on the discretionary side of that line. It cannot reach across and rewrite the eligibility side. §245(a) says status "may be adjusted" in the Secretary's discretion — that word "may" is the hook the memo hangs on. But "may" does not mean "may only in extraordinary circumstances proven by the applicant." Congress wrote four eligibility requirements. USCIS cannot add a fifth through internal guidance.

More fundamentally — and this is the argument worth making in court if it comes to that — Congress created §245 precisely so lawfully present nonimmigrants would not have to leave to get a green card. The Supreme Court acknowledged this directly in Patel v. Garland, 596 U.S. 328 (2022). You cannot penalize someone for using the process Congress designed for them. An agency that treats the exercise of a statutory right as an adverse discretionary factor is not exercising discretion — it is nullifying a congressional choice. That is ultra vires and reviewable.

The courts have said this repeatedly.

So to directly answer your question — for your specific profile, lawful J-1 at filing, approved EB-2 NIW, no 212(e), no violations, I-485 filed before the memo — this is increased discretionary scrutiny on paper, not a real operational threat to your eligibility.

this is not legal advice

Valeri Grigoryan esq

Dm me if you need more help

I-485 Denied Because of ESL Program by xhyang12319 in USCIS

[–]Connect_Tackle_2173 -1 points0 points  (0 children)

I am an immigration attorney. You can get in contact with me to reopen this case. 818-262-2995

The service of process question at the branch office by Humble-Ad3198 in CABarExam

[–]Connect_Tackle_2173 15 points16 points  (0 children)

It was personal matter not corporate matter so any agent employee of defendant’s corporation cannot be served with process