TO David S. and hundreds of thousands of Filipino nonimmigrant visa holders admitted into the US since 2022, the prospect of being ordered to leave the US for their green cards has just become a dreadful reality.
Friday last week, the US Citizenship and Immigration Services (USCIS) issued a policy memorandum “reminding officers and the public” that applying for adjustment of status and getting the green card in the US is a privilege, not a right.
Citing court cases, including one from the US Supreme Court, USCIS said “adjustment of status is a matter of grace” granted as an “extraordinary” form of relief, not designed to supersede the regular consular visa-issuing process.”
Battling the DHS Goliath
David was born in San Francisco, California, in October 1981. His parents were admitted on 10-year B1/B2 visas. The immigration officer at the port of entry gave them six months to stay. Their initial authorized period of stay expired. David’s father got a warehousing job. His mother was accepted as a caregiver in a residential facility.
At the time, employers were not required to verify the status of their employees. Public schools were barred by the Supreme Court from inquiring about the status of children applying for admission.
On Nov. 6, 1986, President Ronald Reagan signed the Immigration Reform and Control Act (IRCA) into law, allowing undocumented immigrants to apply for lawful permanent residency and green cards in the US if they had resided in the US since before Jan. 1, 1982.
David is a US citizen by birth, a right enshrined in the 14th Amendment of the US Constitution since July 9, 1868.
After completing secondary education at Westmoor High School, Daly City, David returned to the Philippines to pursue medical studies. His parents’ income was not enough for university tuition, and he did not want to incur debts from student loans.
His wife contracted breast cancer and passed away in 2021. They had no children. In 2023, David fell in love again, and after more than a year of getting to know each other, he decided to tie the knot with Liz, a social media entrepreneur.
David wants to practice his profession in the US. As a US citizen, he does not need to apply for a J-1 visa to apply for residency or medical internship. But he has to be in the US to apply. Liz has relatives in the US who own both a temporary staffing agency and care home facilities — eager and willing to seek her professional marketing advice and services.
Liz’s B1/B2 visa is valid until 2032.
The prospect of a better career and income-earning opportunities awaits in David’s country of birth. But first, he must file an I-130 spousal petition for Liz.
The May 21, 2026, USCIS policy memorandum posed a conundrum.
Should Liz apply for her immigrant visa at the US Embassy in Manila, or should they go to the US, get married there, and pursue the adjustment of status route instead of going through the consular processing from her home country?
Would they meet the “extraordinary circumstances” and receive grace from the USCIS, allowing Liz to get her green card in the US instead of returning home to the Philippines?
The green card routes
Beneficiaries of an immigrant visa petition in the family or employment-sponsored categories must choose how to pursue lawful permanent residency: 1) consular visa processing in the country of citizenship/home country — outside the US; or 2) adjustment of status in the US.
In David’s case, he has to file the I-130 form for the spousal petition, which would take 19 months to process — from filing to decision.
After approval — and based on the petitioner/applicant’s chosen pathway from the two options — the beneficiary would either have to start immigrant visa processing at the National Visa Center’s Consular Electronic Application Center (CEAC) or, if in the US, apply for adjustment of status at the designated USCIS district office.
Adjustment of status if already in US
David may also concurrently file the I-130 petition, I-485 adjustment of status application, and I-765 employment authorization forms with the USCIS, then wait for the interview date.
If David and Liz go to the US without filing the spousal petition, Liz could be admitted as a visitor and possibly granted a six-month initial period of authorized stay. They must wait another 90 days (from date of admission) before filing the petition and adjustment of status. Otherwise, Liz could be charged with fraudulent intent during the admission process and be barred permanently.
The USCIS website shows a 14-month waiting period for adjustment of status from filing to interview.
As an alternative, David may file the I-130 petition now — wait 19 months for the approval, complete the NVC visa processing (another 4–6 months), and proceed to the US Embassy for her interview.
The May 21 USCIS policy memorandum does not guarantee that Liz will be granted the adjustment of status privilege. She would then join the hundreds of thousands of Filipino nonimmigrant visa holders in the US who must return to the Philippines or their home country to apply for the immigrant visa and green card.
In the last three years on record (2022-2024) B-1/B2 visa holders were the top category admitted into the US — 373,536, followed by K-1/K2 — 27,750; student/exchange visitors — 26,190; and temporary workers — 23,302.
Fiancée/K-1 and K2 visa holders were a distant second at 27,750, followed by student/exchange visitors — 26,190, and temporary workers in the H category and their dependents — 23,302.
Alien crewmen and seafarers were second to the visitor visa holders in terms of absolute numbers, but C1-C1/D visa holders are barred from applying for adjustment.
If David and Liz get married (to pursue the petition-adjustment of status option), they would have to line up separately. There is a queue for US citizens and green card holders, and another for B1/B2 visa holders. Liz is more likely to be asked more questions.
When Liz applies for adjustment of status, the port of entry record of admission indicating a response as having no change in civil status most likely would result in refusal of the application. She may have to apply for a waiver of inadmissibility with a $675 filing fee. If her waiver application is based on extreme hardship to the US citizen spouse, the fee increases to $1,050.
David’s chances of being together in the US with Liz then depend on his weapon of choice: the consular processing or adjustment of status slingshot?
