“Adjustment of status” is an option at the discretion of the administration (8 USC 1255(a)):
> The status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence
Note the “may” and the “in his discretion.” Basically, if the government really likes you, it can change your status. But that doesn’t change the primary purpose of the H1 visa from a temporary worker program into a permanent residency program.
Yeah, and the disincentives consist of giving non-citizens a hard time for no reason.
> so fewer people will do it.
You're not disagreeing with OP. You're just trying to whitewash all the xenophobia behind the motivation.
Where this falls apart is that the K-1 Fiance visa is also a non-immigrant visa, that through Adjustment of Statuses (based on your demonstration of a genuine and sincere relationship) becomes a green card pathway. All "may", "at their discretion", on a non-immigrant visa.
But then what is the purpose of the K-1 visa? To allow you a US citizen then perhaps, maybe, one day, be allowed to stay in the same country as your spouse? At the government's discretion, of course?
Under 8 USC 1255(d), the AG can’t adjust the status of someone here on a K visa: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... If you don’t get married, you have to leave.
What entitles alien spouses to petition for permanent residency is not the K1 visa, but section 1154: https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim.... So, for example, the citizen could marry their fiancé in the fiance’s home country.[1] And they’d use 1154 to petition for permanent residency. The K1 visa just allows the marriage to happen in the U.S. but is unrelated to the ultimate basis for permanent residency.
[1] Our family friend did this. We set him up with the daughter of our next-door neighbor in Bangladesh. They had a wedding over the phone with him in the U.S. and her in Bangladesh. Then she came over on an 1154 petition.
After about 4 years there, I relocated back to start a new job, arrange housing, etc. We started the USCIS petition in her country during one of my visits. She eventually finished the whole process and got her immigrant visa to come back and join me.
It worked out smoothly for us, but mostly because we understood the general process timeline and pipelined it to coincide with other professional and personal life factors that drove things. We were going to be separated for a bit anyway, because I wanted to chase the new job back in the US while she still had obligations to wrap up overseas.
Per my immigration attorney, the K-1 entirely bypasses 8 USC 1154 at the petition stage. 1154 governs immigrant visa petitions (I-130, I-140, I-360, etc.). The I-129F is technically a nonimmigrant petition even though it's understood by everyone as a pre-immigration vehicle.
K-1 AOS does not require a separate I-130. The approved I-129F plus the marriage to the petitioner supplies the petition basis. This is one of the cleaner cases where 8 USC 1154 is genuinely sidestepped, not merely deferred.
For K-1s, the path to residency is firstly via 8 USC 1186a, and is automatic and statutory, granting the conditional LPR.
Then at 2 years of marriage, 8 USC 1186a again handles the removal of conditions.
However, many attorneys will file I-130s, according to her, and such, simultaneously, though not required if you follow the process to the letter. And that does go via 1154.
40 years ago--we had no knowledge of each other's existence when she entered the US. Life put us in proximity, our hearts decided they wanted more proximity. Adjustment of status was granted. She's 20 feet from me as I write this.
Incidentally, we don't have an attorney general at present, only an acting one (Trump's former personal lawyer), and I question the standing of an unconfirmed federal officer to alter existing rules, never mind to bypass the federal rulemaking process entirely.
I’m using a colloquialism to convey how much latitude the administration has under the wording of statue. It says that the “status of an alien who was inspected and admitted or paroled into the United States … may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe…”
When the statute says an officer “may … in his discretion” do something, that’s Congress giving very broad latitude to the executive to make case by case determinations.
The word “discretion” has a special meaning under the APA. The APA says that courts can’t review agency actions that are “committed to agency discretion by law.” The Supreme Court has read that carve out narrowly (because otherwise I think you have serious due process problems). But Congress using the word “discretion” here at the very least conveys how much latitude Congress intended to give the administration with respect to adjustment of status.
1. You just quoted 8 USC 1255(a) because it's at the top of the USCIS memo without understanding it; or
2. This is just the most ChatGPT comment.
I say this because you clearly don't understand this stuff. From reading your comment history, you're a Trump supporter [1] and you seem to have done the most MGA Thing of being told what your position is and then looking for a justification.
8 USC 1255(a) is a carve-out that basically gives the AG authority to let people adjust. It doesn't go the other way and say the AG can withhold permission to adjust. The entire section details the requirements to adjust, detailing admissibility requirements.
So how did we get from the AG can allow someone to adjust to the AG can override the entire section that details adjustment requirements?
Also, you don't understand what "nonimmigrant" means in relation to your H1B comment. Yes, H1B is a nonimmigrant visa. That just means they're not a lawful permanent resident ("LPR"). It doesn't mean they can't adjust status.
It's a bit like taking the description fo a woman as "non-pregnant" and taking that to mean they're not capable and/or not allowed to get pregnant.
That’s exactly what “may” means. The AG “may” do it, but he doesn’t have to.
To make that clearer, the statute also says “at his discretion.” That means the AG can adjust or not at his choice. That’s what the word “discretion” means in a legal context: https://dictionary.justia.com/discretionary
> The entire section details the requirements to adjust, detailing admissibility requirements.
You need to read more carefully. The rest of the section describes conditions where the AG cannot adjust the status. They don’t require the AG to grant the status adjustment to anyone who meets the requirements.
For example, subsection (d) says: “The Attorney General may not adjust, under subsection (a), the status of an alien lawfully admitted to the United States for permanent residence on a conditional basis under section 1186a of this title.”
So subsection (a) gives discretion to the AG to adjust status at the AG’s choice. Then other provisions say that he can’t adjust status under certain circumstances.
> Also, you don't understand what "nonimmigrant" means in relation to your H1B comment. Yes, H1B is a nonimmigrant visa. That just means they're not a lawful permanent resident ("LPR").
No, because there are also “immigrant” visas. Those visa holders also aren’t LPRs. So what’s the distinction between immigrant and non-immigrant visas in your reading? The difference is that immigrant visas are intended to be a pathway to a green card, while nonimmigrant visas are intended to be for temporary workers who will typically go home.
Note that subsection (H) also includes H2 visas for unskilled temporary workers. Those visa holders can request an adjustment of status too. But the expectation is that generally that will not be granted.
A way to silence people is to cause commotion so people get dizzy by the noise.
There is no menace. There was no evil plan. There was nothing like that. Accusing others of what you want to do is a classical trick.
