H-1B Visa Holders Face New Hurdles in Green Card Applications

Immigration attorney Rahul Reddy explains what H-1B visa holders applying for Green Cards should do.

The new Green Card rule that applicants can't wait for their Green Card in the US and should go back to their country of origin has sent shockwaves, as 1.2 million legal immigrants are waiting for years to become permanent residents. The experts are waiting for more clarity on this as to how the USCIS will be executing this, while many said the new rule will be challenged in court, as it is against the law. Indian-origin immigration attorney Rahul Reddy explained that the rules did not change and the law dd not change but the way a Green Card application will be judged has changed.

What USCIS says in the new rule

The USCIS said people come to the US on temporary visas and then apply for a change of status to become permanent citizens. As they wait for this to happen, they continue to stay in the US. The USCIS said this should stop. A person who wants to become a permanent resident of the US should go back to their home country and then apply for an immigrant visa.

What changes

For decades, visa holders who came to the US legally and maintained their legal status throughout could apply for Green Card through 'adjustment of status'. "For decades, the deal was this: if you followed the rules, kept your status, got your I-140 approved, and waited your turn, your green card through adjustment of status was essentially a sure thing once your priority date became current. The officer reviewing your file mostly asked, “Does this person qualify?” If yes, approved," Reddy explained.

"That deal is now in question. The new memo reminds officers that approving a green card from inside the United States is a favor, not a right. The official word is “discretion” — meaning the officer can say no even when you qualify. The memo doesn’t just remind them they have this power. It actively encourages them to use it," Reddy said.

"The most worrying part is how the memo views people on work visas. If you came to the US on an H-1B, L-1, or O-1, the government’s expectation — according to this memo — is that you will eventually go home. Not stay. The memo says that staying in the U.S. to get a green card, instead of going back to your home country and applying at a U.S. consulate there, is something officers should view as a negative. Yes, the memo admits that H-1Bs and L-1s are allowed to have “dual intent.” But it then says that allowance alone is not enough to get you approved," Reddy explained.

What should H-1B visa holders who wants Green Card do?

Reddy said those who have already filed a Green Card application, they must consult their lawyer and strengthen their case before USCIS forces the question. Those who are considering filing, the choice is harder because they may have to eventually go back to their country and apply from there, which is a slow and risky path.

I-140 approved? Can you stay in the US?

There are many unanswered questions over the new memo. Many experts interpreted from the memo that this only applies to the 'Adjustment of status' part of Green Card process which happens only when your Priority Date becomes current and you are ready to file Form I-485. For that, one may have to go back to their country but those who just filed I-140, which is a petition for a Green Card, will not have to leave the US. It takes years to become Priority Date current for India and China and hence these two countries won't have any immediate impact but the USCIS memo did not clarify these specifics.