Trump Administration Requires Foreign Nationals in US to Apply for Green Cards from Their Home Countries

On May 21, 2026, US Citizenship and Immigration Services quietly issued Policy Memorandum PM-602-0199 — a document that immigration attorneys say amounts to the most consequential shift in green card processing in over half a century [1][2]. The memo instructs USCIS officers that adjustment of status, the process by which foreign nationals already living in the United States apply for permanent residency without leaving the country, is "an extraordinary form of relief" and an "act of administrative grace" — not a routine option [3].

The practical effect: hundreds of thousands of workers, spouses of US citizens, students, and refugees who would normally apply for green cards from within the US may now be required to leave the country and apply through US consulates abroad [1].

What Changed and How

USCIS did not write a new regulation or seek public comment. Instead, the agency issued an internal policy memorandum reinterpreting existing statutory authority under Section 245(a) of the Immigration and Nationality Act [3][4]. The memo cites two Board of Immigration Appeals decisions — Matter of Blas (1974) and Matter of Mendez-Moralez (1996) — to argue that Congress never intended adjustment of status to replace the "normal" consular visa process abroad [4].

Under the new framework, USCIS officers must weigh a series of "discretionary factors" before approving any in-country green card application. Negative factors include overstaying a visa, unauthorized employment, conduct "inconsistent with the purpose of their temporary admission," and — critically — simply failing to depart the US when a temporary stay ended [3][5]. Officers are now required to write detailed explanations when exercising discretion, and the memo signals that denials should increase [5].

The memo does not technically prohibit filing Form I-485 adjustment applications. But immigration attorneys warn the distinction is largely academic. "USCIS is trying to upend decades of processing of adjustment of status," said Shev Dalal-Dheini of the American Immigration Lawyers Association [1].

The Numbers: Who Is Affected

Approximately 600,000 people per year apply for green cards through adjustment of status while living in the United States, according to Doug Rand, a former senior advisor at USCIS under President Biden [1]. In every year since 2018, more immigrants became permanent residents through in-country adjustment than through consular processing abroad [6].

Source: USCIS / Niskanen Center

Data as of Apr 1, 2026CSV

The USCIS backlog has reached record levels. As of early 2026, the agency had more than 12 million total pending cases [7]. Within that, roughly 363,697 family-based I-485 cases and 133,820 employment-based I-485 cases had been waiting longer than six months [8]. The net backlog grew by more than 800,000 cases between the third and fourth quarters of fiscal year 2025 alone [8].

The policy memo applies retroactively to already-filed applications. There is no grandfathering provision for the hundreds of thousands of pending cases [5][9].

The Backlog Trap: India, China, and the Per-Country Cap

The green card system allocates roughly 140,000 employment-based visas per year, a number set by the Immigration Act of 1990 and unchanged since. A 7% per-country cap limits any single nation to approximately 9,800 employment-based green cards annually [7].

For Indian nationals, who generate over half of employment-based demand, this creates a structural bottleneck. The EB-2 category for India currently has a priority date of July 2014 — a 12-year backlog. EB-3 India sits at November 2013, a 13-year wait. New Indian applicants face a theoretical wait of 80 to 100 years at the current processing pace [7][10].

Source: USCIS Visa Bulletin / WorkVisa.guide

Data as of May 1, 2026CSV

Chinese nationals face approximately five-year waits in EB-2 and EB-3 categories. Applicants from the Philippines wait about three years for EB-3. The rest of the world faces no significant backlog [7].

For these high-backlog populations, the question of what happens to their place in the priority date queue if they depart the US is critical. Immigration attorneys say that while the priority date technically remains valid, the practical risks of leaving are severe. Applicants who have accumulated unlawful presence — even inadvertently, due to gaps between visa categories or processing delays — can trigger the three-year or ten-year reentry bars under INA Section 212(a)(9)(B) [11][12]. An applicant who has been unlawfully present for more than 180 days but less than one year faces a three-year bar from reentering the US upon departure. Those with more than one year of unlawful presence face a ten-year bar [11].

The June 2026 Visa Bulletin compounded the problem, showing sharp retrogression for India EB-1 and EB-2 categories — meaning priority dates moved backward, delaying approvals for thousands of applicants already in the pipeline [10].

Industry Impact: Tech, Healthcare, and Beyond

The policy's most immediate economic effects fall on industries that rely heavily on employment-based immigration. H-1B visa holders — concentrated in technology, healthcare, and financial services — represent a significant share of pending adjustment-of-status cases [13].

The memo acknowledges that H-1B and L-1 visa holders have "dual intent" status, meaning they are legally permitted to pursue permanent residency while maintaining temporary work authorization. But it then states that "simply holding lawful status" in a dual-intent category "is not, standing alone, sufficient" for a favorable discretionary outcome [4]. One immigration law firm characterized the memo as encouraging officers to "view as a negative" the choice of work-visa holders to adjust status domestically [14].

For employers, the consequences are tangible. Human resources teams that prepared adjustment-of-status packets based on earlier filing eligibility may now find those cases ineligible under the new Final Action Dates chart, which USCIS adopted for all employment-based filings starting in May 2026 [13]. Companies face extended H-1B sponsorship costs, relocation expenses for workers who must leave the country, and lost productivity during the transition [13].

Doug Rand framed the administration's intent bluntly: "The goal of this policy is very explicit...they want fewer people to get permanent residency because permanent residency is a path to citizenship" [1].

The Consular Processing Bottleneck

Requiring all green card applicants to process through US consulates abroad would redirect hundreds of thousands of cases into a system already strained by backlogs and closures.

Wait times for immigrant visa appointments at some US consulates already exceed one year [1]. The US Embassy in Afghanistan has been closed since August 2021, making consular processing there impossible [1]. In January 2026, the State Department suspended visa processing for nationals of 75 countries, with no end date announced [15].

The administration simultaneously tightened rules requiring immigrant visa applicants to interview at consulates in their country of nationality or residence, with only narrow exceptions for humanitarian or medical emergencies [16]. For applicants from countries with limited US consular presence or active travel restrictions, the combination creates what World Relief, a humanitarian organization, called "a Catch-22" [1].

How Peer Countries Handle It

The US approach of potentially requiring departure for permanent residency applications is unusual among peer nations. Canada's Express Entry system allows skilled workers to apply for permanent residency from within or outside Canada, with a standard processing time of about six months [17]. Australia processes most skilled migration visas without requiring applicants to leave the country during adjudication. The United Kingdom's Skilled Worker visa allows in-country switching between visa categories and settlement applications without departure [17].

None of these countries require physical departure as a prerequisite for permanent residency status changes for applicants already lawfully present. The US, which historically offered adjustment of status as an equivalent in-country pathway, would become an outlier among major immigration destination countries if the new policy is fully implemented [17].

The Fraud and Security Argument

The administration's stated rationale centers on fraud prevention and immigration enforcement. The memo positions consular processing as more rigorous because consular officers conduct in-person interviews in applicants' home countries, where they can verify documents and assess credibility with local knowledge [3][6].

USCIS has pointed to several negative discretionary factors — unauthorized employment, overstays, fraud, and misrepresentation — as justifications for channeling more cases through consular review [5]. The agency says the shift will help "reduce illegal overstays among denied applicants" and allow reallocation of resources toward victims of crime and trafficking and toward naturalization processing [5].

However, publicly available data complicating this argument exists. In every year since 2018, more immigrants received green cards through adjustment of status than through consular processing — suggesting the in-country pathway has been the dominant and presumably functional channel [6]. Immigration attorneys note that adjustment-of-status applicants already undergo background checks, biometric screening, and in-person interviews at USCIS field offices [4]. The memo does not cite specific fraud-rate comparisons between the two pathways or present data showing that consular officers catch disqualifying factors that USCIS adjudicators miss [4][14].

No court decisions or inspector general reports were referenced in the memo as evidence that in-country adjustment constitutes a "loophole" exploited for fraud [4].

Legal Challenges Ahead

Immigration law firms have flagged several grounds for legal challenge [4][5][9]:

Administrative Procedure Act: The policy memo effects a substantive change in adjudication standards without notice-and-comment rulemaking, which courts have previously found to violate the APA when agencies attempt to use guidance documents to impose binding new requirements [4].

Due Process and Reliance Interests: Hundreds of thousands of applicants filed I-485 petitions, paid filing fees, and made life decisions — accepting jobs, buying homes, enrolling children in schools — based on the longstanding availability of adjustment of status. The retroactive application of heightened discretionary standards to these pending cases raises reliance-interest concerns under Supreme Court precedent [4][9].

Statutory Interpretation: Section 245(a) of the INA establishes eligibility criteria for adjustment of status. Critics argue that Congress created the pathway as a substantive right for eligible applicants, not merely as an act of discretionary grace that the executive branch can functionally eliminate through policy reinterpretation [4].

Scope Limits: The memo does not apply to non-discretionary adjustment categories, including asylum-based adjustment under INA § 209(a), the Cuban Adjustment Act, and certain Special Immigrant Juvenile provisions [4]. This carve-out may itself become a point of legal contention, as it suggests the administration recognizes limits on its discretionary authority.

Shev Dalal-Dheini of the American Immigration Lawyers Association said legal challenges "seem almost inevitable," particularly regarding "whether the memo's retroactive application to already-filed cases raises due process or reliance-interest concerns" [4][1].

Populations at Highest Risk

Several groups face compounding risks under the new policy:

Nationals of countries under travel restrictions: With visa processing suspended for 75 countries and travel bans in effect, applicants from these nations face the prospect of being told to leave the US for consular processing in countries where no processing is available [1][15].

Applicants with unlawful presence exposure: Anyone who has accumulated more than 180 days of unlawful presence — which can occur during gaps in status that applicants may not even be aware of — risks triggering the three-year or ten-year reentry bar upon departure. Waivers exist but require proving "extreme hardship" to a US citizen or permanent resident spouse or parent, a high legal bar [11][12].

Nationals of countries without functioning US embassies: Afghanistan, where the US Embassy has been closed since 2021, is the starkest example. Applicants from countries with limited consular infrastructure — parts of sub-Saharan Africa, Central Asia, and conflict zones — face logistical barriers that may be insurmountable [1][16].

Long-backlog applicants from India and China: Workers who have waited a decade or more for their priority dates to become current, maintaining legal status through H-1B extensions and employer sponsorship, now face the prospect of leaving the US mid-career with no guarantee of timely return [7][10].

What Happens Next

USCIS has not announced an effective date for the policy or clarified whether applicants must remain abroad throughout the entire processing period [1]. The agency also has not addressed whether the policy applies to cases already in the adjudication pipeline — though the memo's text and legal analyses suggest it does [5][9].

The Dignity Act, introduced in Congress, would expand per-country limits, create a $20,000 fast-track option for applicants who have waited more than 10 years, exclude dependents from employment-based caps, and offer protections for "Documented Dreamers" — children who age out of dependent status while waiting in the backlog. As of May 2026, the bill has not advanced out of committee [10].

For now, immigration attorneys are advising clients with pending I-485 applications to prepare for the possibility of denial on discretionary grounds and to consult with counsel before making any travel decisions. The stakes of a wrong move — departure triggering a reentry bar, or a denial stranding an applicant abroad — are higher than at any point in the modern history of US immigration law [9][11][14].