By changing the rules in mid-process, the new US Citizenship and Immigration Services (USCIS) Policy Memorandum PM-602-0199 issued on May 21 feels like a bait and switch to many of the estimated 200,000 Filipinos waiting for their green card.

For Josie dela Cruz, a registered nurse working at a convalescent hospital, not only is she exposed to the cruelty of her fate changing in midstream, but her husband whom she petitioned as dependent and her two young children who are born US citizens could also be negatively impacted. 

For more than 70 years — by act of Congress in 1952 — she was told that if you come legally, follow the rules, work hard and wait your turn, the American Dream is for you for the taking. Now that dream is turning into a nightmare.

Dela Cruz followed it to the letter. She came on H-1B in 2012 amid the persistent shortages of nurses and healthcare workers in the US. She petitioned her husband as H-4 dependent and is now raising two kids. After working nine years at the same hospital, her employer sponsored her for an EB-3 green card in 2017. 

She’s been waiting for nine years, her wait time caught in a legal backlog that affects 200,000 Filipinos. Now she is being forced to make a choice that could destroy three lives: hers, her husband’s, and her children’s.

“Who will take care of my children if we have to go back to the Philippines?” Dela Cruz asked.

Domestic Adjustment of Status (AOS)

Congress created Section 245 as part of the initial Immigration and Nationality Act in 1952 to allow eligible nonimmigrants (such as temporary workers or international students) to adjust their status to green card without leaving the United States and undergo consular processing abroad.

Instead, the Trump administration now dictates that adjusting status within the USA is no longer an administrative option but an “extraordinary form of relief” and a matter of “pure administrative grace”.

“When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the US illegally after being denied residency,” USCIS Spokesman Zach Kahler said.

To Conservative and MAGA supporters of the policy, it’s not cruelty at all, contending that adjustment of status was never meant to be guaranteed merely because someone entered legally or waited long enough. 

But even as they argued that prioritizing American workers and tightening immigration pathways reflect the political mandate voters delivered in 2024, some Silicon Valley Trump supporters have expressed deep concern over the impact on highly skilled workers, such as those on H-1B visas, who rely on internal adjustments to prevent disruption in their operations.

Balikbayan

Dela Cruz can opt to stay and prove she’s “extraordinary,” or go back home to wait out approval.

If she goes back to the Philippines, she will be forced to bring her family with her. She has to resign, and when her turn is up for an interview that sometimes takes years, she could be deemed a burden to society because she’s out of a job, and could be denied reentry.

The consular officer at the US Embassy in Manila can assume they are moving to the US without a job and may rely on public benefits, completely erasing their multi-year history of taxes paid, and the family they’ve built that was interrupted.

San Francisco-based immigration lawyer Lou Tancinco clarified that “the memo does not eliminate adjustment of status. It does not repeal the law. It does not automatically require applicants to go through consular processing abroad.”

Nevertheless, she urged applicants “to be prepared to show strong positive equities, such as: US citizen or lawful permanent resident family members, US citizen children, tax compliance, employment history, community ties, hardship factors and evidence explaining any overstays or status issues” when their time is up for an interview.

Legal challenges 

“We will fight this in federal court. Our team is waiting for a case to litigate. I hope that case doesn’t come, but I’m excited to take the fight if it does,” said Burke Brown III, managing attorney at Polaris Law Group in Lincoln, Nebraska.

Legal experts believe that the legal strategy will likely focus on systemic challenges: whether USCIS violated the Administrative Procedure Act by issuing a substantive policy shift as a memo without notice-and-comment rulemaking, whether the agency exceeded its statutory authority under Section 245 of the Immigration and Nationality Act, and whether retroactive application to pending cases violates due process. 

“Do not give up — but do not wait,” Tancinco said, advising those who have a pending I-485 or those who are planning to file for a green card “to consult with an experienced immigration attorney to review your case under this new policy”.

Even as she prepares to present herself as “extraordinary” on the day of her interview in August with a USCIS immigration officer, Dela Cruz said she prays to Santo Niño every night hoping the country she served will not turn its back on families like hers who only asked for a fair chance after patiently waiting their turn. – Rappler.com