‘Brewing for a fight’ 

At least two Jamaica immigration attorneys living in the United States (US) believe the Trump administration is headed for a major legal challenge after the US Citizenship and Immigration Services (USCIS) announced a policy memorandum requiring green card seekers to return to their home country to apply, except under certain circumstances. 

“I can bet my last dollar that there will be a lawsuit in short order to stop this,” attorney-at-law Dahlia Walker-Huntington told The Gleaner. “As far as immigration lawyers are concerned, this is against existing law. Adjustment of status is not a policy… a discretionary policy, it is factored into law.” 

She pointed to section 245(i) of the Immigration and Nationality Act which allows certain qualifying immigrants to obtain a green card from within the US, even if they entered without inspection, overstayed their visa, or worked without authorisation. 

In a statement on its website yesterday, the USCIS said consistent with longstanding immigration law and immigration court decisions, aliens seeking adjustment of status must do so through consular processing via the Department of State outside the country.

The department said officers are now directed to consider all relevant factors and information on a case-by-case basis when determining whether an alien warrants this extraordinary form of relief.

“From now on, an alien who is in the US temporarily and wants a green card must return to their home country to apply, except in extraordinary circumstances,” said USCIS spokesman Zach Kahler. 

He said the policy allows the immigration system to function as the law intended instead of incentivising loopholes. He said non-immigrants, such as students, temporary workers, or people on tourist visas, come to the US for a short time and for a specific purpose, and the system is designed for them to leave when their visit is over.

He stated that their visit should not function as the first step in the green card process.

However, Walker-Huntington described the move by the Trump administration to sidestep statutory law in favour of policy changes as “mind-boggling”, stating that it is causing an atmosphere of chaos as attorneys scurry on how to advise their clients. 

“What is going to happen next week? Which organisation is going to file suit against the administration to stop it? Because this is not something that one person can go up against. It's going to need some powerhouse behind it to produce a lawsuit and to file a lawsuit and to try to get an injunction to stop it from being implemented,” she said. 

Attorney-at-law Oliver J. Langstadt said this policy memo is going to result in “heavy litigation”, and that his “colleagues are already brewing for a fight”. 

He noted that the Trump’s administration’s current stance is that under law, adjustment of status is a matter of discretion and administrative grace is not designed to supersede the regular consular processing of immigrant visas. 

But he said with the current pause on immigrant visa processing in 75 countries, including Jamaica, this approach appears disingenuous. 

"If you are now going to insist that individuals go overseas to complete their adjustment of status, they can’t complete it because currently there is a pause on immigrant visa processing outside the US, but there is no pause on adjustment of status in the US,” he said. 

“Insisting that people go overseas means that they are basically walking into a serious problem,” he added. 

He further stated that there are people who are trying to get their green cards but have overstayed their legal stay in the US, and if they leave and go overseas, they would be subjected to a three or a 10-year bar and will have to file an additional waiver abroad which may or may not be granted. 

As at 2024, there were more than five million Caribbean immigrants living in the US with Jamaicans accounting for 888,000, according to data from the Migration Policy Institute. 

To be eligible for a green card, an applicant should, among other requirements, be a lawful permanent resident for at least five years. 

Data from the USCIS showed that the US welcomed 818,500 new citizens in fiscal year 2024.

The attorneys, in the meantime, described this latest move by the US government as part of a broader effort to get immigrants out of the country.

“It’s another way to severely restrict and control the immigration process, and to slow it down significantly. There is no doubt that is the reason that they are doing this,” he said. 

“It's rough. And I feel for my people today who are getting word of this, and I really just want to tell them, if you have a lawyer, reach out to your lawyer. If you don't have a lawyer, reach out to a lawyer,” Walker-Huntington said.

sashana.small@gleanerjm.com