If the goal was to confuse everyone, the mission was accomplished.
Just before Memorial Day, the Trump administration issued a sweeping new policy directive that took aim at legal immigration. It would have required most temporary visa holders and humanitarian parolees living in the U.S. to return to their home countries to await their green cards.
The memo and accompanying news release bucked a longstanding policy of allowing immigrants to remain in the U.S. while waiting for green cards, stating individuals would have to go back to their home countries except in “extraordinary” cases.
Then, late last Friday, the Trump administration began downplaying the significance of the previous week’s orders, which had already caused panic, confusion and concern among immigrant families and attorneys.
The Department of Homeland Security told the New York Times that it wasn’t a blanket policy and that individual officers in the U.S. Citizenship and Immigration Services have always had the discretion to decide.
“That’s a CYA,” said Patrick Kolasinski, an immigration attorney based in Modesto. “To me, it seems really clear that what they’re doing in their covering-their-bases thing is … a little bit of public blowback, but also trying to avoid some litigation because trying to change this policy the way they did is completely illegal.”
An unnamed Department Homeland Security spokesperson also told the Times that the groups that could be heavily affected include people who overstay visas or come from countries whose citizens are heavy users of public assistance.
The department did not respond to a CalMatters question about the apparent reverse course of the newly announced policy, as reported by the New York Times.
Many questions remain unanswered about the new policy and how it will be applied, but legal experts say it is part of an ongoing pattern by the Trump administration targeting people trying to follow established guidelines for obtaining a legal status. Employers, especially those in the tech sector, have loudly balked at the new memo, saying the mandate could disrupt operations and cause talent to leave.
The new mandate will almost certainly end up in court, but where does that leave people now?
Here are a few things to know:
Who is affected by new green card rules?
Relatives of U.S. citizens, laid-off tech workers, mixed-status families and international students are among those most at risk.
The change would mostly affect people already inside the United States who are applying for permanent residency, a process called adjustment of status. Roughly half of all green cards issued each year go to people already living inside the U.S., according to the Department of Homeland Security.
In 2023, 112,100 Californians received green cards through adjustment of status. That's more than any other state, accounting for nearly one in five of all U.S adjustments in 2023.
Family-based applicants make up the largest share, as opposed to employment-based applications. About 64% of all new green card recipients in 2023 obtained status through a family relationship with a U.S. citizen or lawful permanent resident, according to DHS.
It’s not clear if the policy would apply to people with pending adjustment applications. Lynn Damiano Pearson, the director of legal strategy at the National Immigration Law Center, said immigration attorneys are already seeing U.S. Citizenship and Immigration Services officers question applicants in ways that suggest the answer is yes.
Some immigration lawyers told CalMatters people were asked by officers in interviews last week why they were applying for green cards from within the United States, and if any factors would keep them from applying and waiting in their home countries.
“People are being questioned about consular processing in a way that seems to flow directly from this new memo and makes us assume, unfortunately, that this administration is planning to apply the policy retroactively,” Damiano Pearson told CalMatters last week.
The Department of Homeland Security did not respond to a question from CalMatters about whether the policy change applies to people with applications already in the pipeline Instead, in a written statement, the department said the policy “will have no noticeable impact on highly qualified applicants and skilled professionals who have followed the law.” The spokesperson declined to provide their name.
Congress created adjustment of status
Congress created adjustment of status in 1952, and it has been used by administrations of both political parties for more than 70 years. More than half a million people use it each year. The new memo reframes that process as “extraordinary.”
“This memo is wrong. It’s reprehensible. It’s illegal,” said Jeff Joseph, the president of the American Immigration Lawyers Association. He said he is “100% sure that it’s going to be litigated.”
Nina Sheridan, a spokesperson for California Attorney General Rob Bonta, indicated the same. “The Trump administration continues to wage a campaign against legal immigration, putting up barriers and pushing out immigrants who are trying to follow the established process to obtain permanent residence,” she said. “We’re monitoring where the administration goes next with its latest attempt to flout longstanding law and policy, and we are evaluating our options.”
The Department of Homeland Security told CalMatters the memo “restates longstanding law and policy” that was “disregarded by the Biden Administration.”
Immigrants fear a deportation trap
Many people who applied for green cards have, with the government’s blessing, allowed their original visa to expire while they wait for their interview, sometimes for years because of backlogs in processing. Under the new policy memo, attorneys worry that could be used against them.
Lawyers are concerned people could be denied at their interview and then immediately placed into removal proceedings. Last year, people were taken into custody at their routine immigration appointments and then detained, sometimes for months.
Damiano Pearson said it is too early to say how often that could happen, but she said experts could not rule out the possibility that ICE agents might take people into custody immediately following their citizenship interviews.
Many applicants can't go back home
For most applicants, consular processing would not be a quick plane ride home to sign some paperwork. Wait times and backlogs for Department of State processing can take years to resolve.
“This is not about buying a plane ticket and waiting a little bit longer,” said Ben Johnson, executive director of the American Immigration Lawyers Association. “For many people, consulate processing is not realistic or safe, and for others it can mean months or years of separation from U.S. citizen spouses, children, employers, and communities.”
Visa processing has been halted completely in more than 70 countries.
Immigrants who have overstayed their visas could face three to 10-year reentry bans if they are forced to leave and apply from abroad.
“We don’t know from the language of the memo if those issues will be taken into account,” Damiano Pearson said.
“This memo has obviously created a lot of panic and fear amongst people who thought they were well on their way to receiving a green card.”
What are attorneys telling their clients?
Kolasinski, the immigration attorney, said he has clients with green card interviews this week who are nervous about what might happen next.
“You walk in, and you have no idea what kind of officer you’re going to get and what they’re operating under,” he said.
“There is no more rule of law. There is no more predictability. It’s completely the Wild West, and that’s been the case for a year and a half now,” said Kolasinski.
His advice to clients with interviews scheduled: Don’t go alone. “Nobody should be doing anything with immigration these days without a lawyer present,” he said.
CalMatters’ journalism engineer Mohamed Al Elew contributed to this report.
This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.
