[varenc]

The internal memo on this is interesting: https://www.uscis.gov/sites/default/files/document/memos/PM-...

Essentially they're trying to change the rules by aggressive re-interpretation of the existing legal framework, and not actually changing any laws or regulations.

I don't follow all of it, but it seems to be arguing that the "ordinary consular process", leaving the country and applying for a visa from abroad, is the long-established default, and that "adjustment of status", where your immigration/green card status changes while you're already in the US, is merely an extraordinary exception and "a matter of discretion and administrative grace." Even though applying for a green card while in-country (an "adjustment") seems like the only sane and reasonable process.

It feels goofy watching them marshal decades of prior case law to try to frame this as just a "reminder" rather than admitting this is a real change. (Since changing laws is harder I assume)

[skeeter2020]

Adjustment of Status has been on the books since the start in the 1950's, and was greatly expanded leading into what might turn out to be the high point of the country in the late 90's and early 2000's.

[rayiner]

What “the books” say is that H1B is a “nonimmigrant” visa for people “temporarily” in the U.S. It’s right there in 8 USC 1101(a)(15)(H).

“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.

[FireBeyond]

> 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.

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?

[rayiner]

The K visa actually proves my point, because someone on a K visa (by itself) isn’t eligible for adjustment of status at all! The K visa only allows admission for purposes of getting married within 90 days.

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.

[saltcured]

Right, I met my wife in the US when she was here on a non-immigrant student visa. We actually married in the US before the end of her CPT/OPT quota. After that, I became an expat when we both relocated back to her original country.

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.

[FireBeyond]

> 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.

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.

[rayiner]

USCIS forms aren't the law. The statute is the law. And however USCIS has chosen to structure its forms, the legal basis for a K1 visa holder's eligibility for permanent residency isn't the K1 visa itself, but instead other provisions of the law that confer eligibility for permanent residency on immediate family members of citizens.

This CRS report examples: https://www.everycrsreport.com/files/20151215_R44310_34af119...

"Once in the United States, the K-1 nonimmigrant is required to marry the U.S. citizen petitioner within 90 days. K-1 visa holders are permitted to work in the United States during this time if they file for employment authorization. The foreign national is eligible for lawful permanent residence as an immediate relative if the marriage takes place within 90 days and the fiancé(e) is otherwise admissible."

It's the status as an immediate relative of a citizen that confers eligibility, not the visa itself.

[LorenPechtel]

I've seen it decades ago. It wasn't "really likes you", but whether they believed you were seeking an adjustment of status because of a change in circumstances since your original entry.

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.

[DiogenesKynikos]

This interpretation makes the entire immigration system extremely arbitrary and capricious. It's almost as if Trump supporters just want to give non-citizens a hard time for no reason. The cruelty is the point.

[rayiner]

No the point is to create disincentives for people to immigrate so fewer people will do it.

[locknitpicker]

> No the point is to create disincentives for people to immigrate (...)

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.

[selfmodruntime]

The point is that decisions can remain arbitrary

[dominotw]

what do you mean by "makes" . It has always been arbitrary ppl get denied at airports arbitarily. my brother and i have the same background and education. i was given an f1 visa and he wasnt.

[CodeWriter23]

The point is exceptions are not the rule.

[anigbrowl]

A misrepresentation. 'Adjustment of status' is not 'if the government really likes you', it's a process that's available by rule. And the federal rulemaking process, as you are fully aware, involves publication in the federal register, solicitation and and collation of public comment, and republication of teh final rule, again, in the federal register.

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.

[rayiner]

> misrepresentation. 'Adjustment of status' is not 'if the government really likes you', it's a process that's available by rule

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.

[anigbrowl]

That's a lot of words because you no counter to the point I made about rulemaking. This blanket change seems to me to violate the APA, and as I mentioned above it's questionable whether Blanche has authority to set policy at all given his lack of confirmation. I anticipate this being set aside as arbitrary and capricious.

[rayiner]

It depends on what kind of change in practice is at issue. Was it a practice that was dictated by rules? If so you need a new rule making. But I don’t believe that’s the case here. The memo here says that, to the extent decisions are within the discretion of immigration officers, remember that you don’t have to let anyone adjust their status.

You don’t need a rulemaking to release guidance on the exercise of discretion, even if that new guidance changes prior agency discretionary practice. Agencies do that all the time.

[jmyeet]

One of two things happened here:

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.

[1]: https://news.ycombinator.com/item?id=48188084

[rayiner]

> 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.

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.

[motbus3]

For anyone wanting to loose the time on this discussion ok. But this account is weird AF. Look all the interactions and comments this user appears. Probably the bots or the comment army got to hacker news.

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.

[drstewart]

Deregulation and union busting greatly expanded in the 80s leading to the high point of the country in the 90s as well.

[nroets]

And my theory is that the US only looked good because there were no competitors: Break up of the Soviet Union left the constituents without economies of scale. Similarly European markets were still desperately fragmented. China was growing, but from a low base.

So capital flooded to the US.

So we all have our own theories.

The real question remains "What's best for America right now ?"

[ViktorRay]

Soviet Union was never the place where large scale immigration happened.

Actually the opposite. There were severe restrictions to emigration. They didn’t want people leaving the Soviet Union (or the satellite states) and going to the West. The Berlin Wall for example. Things weren’t so rosy behind the Iron Curtain.

[nekusar]

For quite a while, the "Cost to renounce citizenship" was at $2350. Turnip lowered it back to $450.

But no, US citizenship, like everything else in this country, a cost.

https://www.cnn.com/2026/03/16/travel/renouncing-us-citizens...

And if you have unforgivable student loans because you believed the k-12 propaganda, then you can never "leave". You might be done paying them by the time you, uh, die.

[softwaredoug]

Not only is changing laws harder. Changing regulations requires following the Administrative Procedure Act. They might also be short circuiting APA - as in typical for this admin to attempt.

[rayiner]

What part of this memo changes the regulations? The punchline is this: “Where adjustment of status is in the discretion of USCIS, officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.”

All the memo is saying is reminding USCIS officers that adjustment of status is an act of administrative grace and applicants aren’t entitled to have their status adjusted. That’s always been true.

[varenc]

That is what the memo is trying to say. That no regulations or laws are changing, but it's simply pushing for a certain interpretation of the law that doesn't seem to have been the status quo for awhile.

Some stats I found online report that ~60% of greencards are granted to people already living the US. This memo makes it seem like that route will now be much harder. So while its true that the law as written has always been true, they're definitely pushing for a change that will result in past behaviors no longer being true.

[DiogenesKynikos]

> That's always been true.

Except it is completely contrary to how the immigration system has worked in the US for decades. It is absolutely standard for people who are already in the US on other types of visas to apply for Green Cards.

[rayiner]

> Essentially they're trying to change the rules by aggressive re-interpretation of the existing legal framework, and not actually changing any laws or regulations.

If you want to make that argument, you have to confront the fact that H1 is by its terms a “nonimmigrant” visa for people who are “temporarily” in the U.S. 8 USC 1101(a)(15)&(a)(15)(H). While adjustment of status was possible, it was never intended to be a de facto immigrant visa that typically leads to permanent residency.

Note the law does also have immigrant visas which are designed to lead to permanent residency, such as E1 visas: https://travel.state.gov/content/travel/en/us-visas/visa-inf...

[canyp]

H1-B (I think H1 generally) is dual intent. https://fam.state.gov/FAM/09FAM/09FAM040210.html

[rayiner]

You have to think about what "dual intent" actually means. The relevant provision is 8 USC 1184(h):

> (h) Intention to abandon foreign residence > The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph, if the alien had obtained a change of status under section 1258 of this title to a classification as such a nonimmigrant before the alien's most recent departure from the United States.

What does the text in italics mean? It's there because having an intention to abandon your foreign residence makes you ineligible for a nonimmigrant visa, including H1B. All 1184(h) says is that a petition for permanent residency cannot by itself be used as "evidence of an intention to abandon a foreign residence" for purposes of renewing your H1 visa.

That's all "dual intent" means. It's a fiction where you can keep saying "I intend to go back home after my temporary work in the U.S."--which remains a fundamental requirement of H1B status--and the government can't point to a permanent residency petition as evidence that you are intending to stay in the U.S. permanently. The law doesn't give the H1B holder any right or expectation of being granted permanent status.

The law does have immigrant visas for people who can come here and say "I want to work here and seek permanent residency. I'm not intending to go back." H1B isn't like that.

[thatfrenchguy]

> The law does have immigrant visas for people who can come here and say "I want to work here and seek permanent residency. I'm not intending to go back." H1B isn't like that.

you are, obviously, interpreting the law to fit your narrative:

""The fact that an alien is the beneficiary of an application for a preference status filed under section 1154 of this title or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon a foreign residence for purposes of obtaining a visa as a nonimmigrant described in subparagraph (H)(i)(b) or (c), (L), or (V) of section 1101(a)(15) of this title or otherwise obtaining or maintaining the status of a nonimmigrant described in such subparagraph"

All this means is that you, indeed, can be dual intent and apply for permanent residency while holding a H-1B, like generations of Americans have done before ourselves.

[timr]

It’s a shame that I had to scroll past pages of invective and name-calling to get to your comment, which is the first one to substantively deal with the policy change.

Like you, I tend to think this is a ham-handed move, but like one of the sibling comments, I also have to acknowledge that it’s common for other nations to require change-of-status applications happen outside the country. For example, Japan requires this for some (but not all!) visa modifications.

Also, I’ve seen otherwise reliable sources making unsupported claims about this (e.g. “Existing applicants will lose their ability to apply again if they leave the country”) that aren’t clear from the minuscule amount of information that has been released so far.

As usual with these debates, the content is far more heat than light.

[cyberrock]

Japan only requires leaving for converting a tourist/digital nomad visa and some Working Holiday Visas to a normal working/spouse visa. And WHV to normal status is really dependent on the partner country. For example Australians don't need to leave, but Canadians and Brits do, and I've heard that immigration will sometimes just grant the change of status anyways. So that seems to indicate that Japan doesn't really care.

Needing to leave to convert a normal working/spouse status to PR is not the norm anywhere.

[adev_]

> . So that seems to indicate that Japan doesn't really care.

Additionally, Japan has a very clear and straightforward process to convert HSP Visa (Highly skilled visa) to a permanent residency.

It can be done in 3years for most and to 1year for the high level candidatures (PhD profiles).

This is very far from the current H1B shitshow.

[timr]

> Additionally, Japan has a very clear and straightforward process to convert HSP Visa (Highly skilled visa) to a permanent residency.

I mean, that's true as far as it goes, but HSP is one special visa amongst many, and they're not all so easy. Also, Japan is currently in the middle of its own dramatic restructuring of the immigration system related to HSP, including a number of new requirements that would drive critics of the US system to apoplexy (i.e. language fluency requirements).

Overall, the Japanese system looks a lot more conservative than the US one, though the sanity and consistency level is far higher.

[adev_]

> HSP is one special visa amongst many, and they're not all so easy.

Japan has a selective immigration system where the profiles JP gov considers as "necessary" are made easy to immigrate, and the others not so much.

One can disagree with the method, but at least it is consistent.

Near that, half of the American tech (and associated GDP) is constructed highly qualified immigrated engineers on H1B visas, and still the US gov openly shit on them.

> US system to apoplexy (i.e. language fluency requirements)

JP mainly just put some Japanese language level requirement on the HSP visas related to roles with communication. That honestly does not shock me.

[timr]

We agree that the Japanese system is far more consistent. I think it's better!

But let's not kid ourselves: if the US instituted a CEFR B2 language requirement [1] for anyone on an H1B visa to gain residency, it would be an absolute shitshow.

[1] This is the new Japanese language requirement.

[declan_roberts]

I think one of the primary divergences of thought happening here is whether H1B is indeed a temporary visa or whether it was meant to be a stepping stone to a green card.

H1B is only 36 years old. The Immigration Act of 1990 always meant it to be a temporary status, which is why it is so easily imperiled.

[timr]

Yes, it's temporary, but the 1990 act explicitly established dual-intent, which clearly made the visa eligible for adjustment of status under INA 245. Nobody is really debating that fact, but the announcement memo is also not clear about what they're going to try to do in terms of actual administrative process.

Part of the noise around this topic is that the administration just announced something vague with no detailed guidance, which leaves the door open for bad-faith interpretations by everyone.

[trimethylpurine]

It's also necessary for media to exist as an industry. The objective of nearly all news articles is clicks, comments, and sharing. Bad-faith interpretation is by far the best way to increase the count of all of those things regardless of how detailed the guidance might be.

[airstrike]

It's a shame you scrolled past pages of comments and missed the point entirely.

The fact that it's "common in other countries" is entirely irrelevant to what the United States does.

It's not even clear it's common in other countries. Japan is notorious for being insular.

This is a garbage move by this administration that flies in the face of decades of precedents _in the United States_.

[testing22321]

I don’t want to defend the cure administration, but it’s very common and normal for a country to require a person to leave to change status.

Every time my Canadian work visa expired I had to drive over the border, enter the US, turn around and drive back to start the new one. The border guards call it “flag-poling” because you do a U turn around the flag pole.

When I went from work visa to permanent resident I had to do it, in January, in Alaska, at -44 degrees and nasty ice on the roads. That border required 30km of driving through no man’s land before I got into Alaska. I asked the Canadian as I was leaving if I could just u turn his building and come back right now, and he was very firm I had to enter the US, even if for just 20 seconds. Nasty drive, but all ok

[array_key_first]

Okay but this has not been the case in the US and everyone knows that. We can try to make things up to rationalize why this being done.

Or, we can be honest, and acknowledge these actors have proven themselves to be irrational. What is happening is that an end-goal is desired, and then the trump administration is working backwards to make it happen.

[declan_roberts]

H1B as a visa status (and the one nearly everyone in this thread being affected by the green card status) is only 36 years old.

The immigration act of 1999 very clearly created it as a temporary visa not a stepping stone to a green card. That's a modern invention.

[attentive]

congress made h1b dual-intent in 1990

[array_key_first]

The "only" is doing A LOT of heavy lifting. Also, you're being a bit dishonest here, because this does not only apply to H1B visa holders.

Also, are those people not the exact demographic that so-called "anti illegal" Republicans should want? They're highly educated and desirable, not welfare queens right?

I will repeat my point. You have been lied to. The Republicans do not give even a single shit about what is legal and what is not. What they desire is less brown people, and then they work backwards to justify it. Any other interpretation is just not reasonable at this point, with the evidence we have been given.

[Arun2009]

> What they desire is less brown people, and then they work backwards to justify it.

Which is a perfectly fine thing by the way. I can't see anything wrong with it. If the Americans want fewer "brown" people in their country, that is entirely their prerogative. It's their country, after all.

I am from India. Indians themselves have preferences for the kind of people they'd like to allow to immigrate to India. Bangladeshi muslims are not desired, whereas Tibetans are welcome. Intra-regional migration is a problem within India itself, with certain populations being seen as less desirable in certain areas.

Perhaps the "brown" people can work on fixing their home countries so that they wouldn't have to emigrate in order to enjoy a better quality of life.

[aceofspades19]

> Perhaps the "brown" people can work on fixing their home countries so that they wouldn't have to emigrate in order to enjoy a better quality of life.

That's an ignorant thing to say. Even in democratic western countries, it can be very difficult for the average person to institute change even at a local level. If you have to battle corruption or war on top of that, it could be impossible. For example, would it be fair to say that a Sundanese villager should just fix their country as PMCs being hired by the UAE(and others) are committing genocide? Or would you consider that reasonable to flee the country in search of a better life?

We have to admit there are lots of cases where people can't just "fix" their own country as there are complex geopolitical issues that a normal person, or a group of normal people are not able to fix. If Americans want fewer "brown" people in their country, the idea should be to promote global economic and political stability so that people can reasonably make their countries a better place, not to just tell them to go away and fix their own problems.

[abalashov]

> Which is a perfectly fine thing by the way. I can't see anything wrong with it. If the Americans want fewer "brown" people in their country, that is entirely their prerogative. It's their country, after all.

Which Americans? Whose country is it that "their" is referring to here?

[gsky]

Bangladeshi Muslims demanded and got a country for Muslims as they wanted that's why they are not welcomed by Indians. Read history

[AkshatM]

I'm from India too. It's disingenuous to say things like "Bangladeshi Muslims are not desired" and not mention the massive backlash the Citizenship Amendment Act received. It's almost as if people recognize arbitrary discrimination is the opposite of just.

Attitudes like yours - justifying entitlement without holding its corruption accountable - is why people have to leave their home countries: their own insufferable countrymen.

[declan_roberts]

Nobody would care about this if it didn't affect H1B. The confusion is whether h1b is a temporary visa or some kind of stepping stone. According to the immigration act of 1990 and US law it's a temporary visa and subject to this rule.

For example O-1 is not affected because O-1 is not considered a temporary visa in US law.

O-1 also has no cap. The USA can take in unlimited O-1 immigrants.

[nvgrw]

O-1 is nonimmigrant in the statute, so by definition we take in zero O-1 immigrants. It’s a temporary work visa.

People care about this because it is arbitrary and capricious and runs counter to decades of established practice.

[s1artibartfast]

What are the Canadians up to and why are they doing it?

[freetonik]

That’s strange. I was able to renew a work permit in Canada while staying (and continuing work) in Canada. Same for study permit. This was over a decade ago, so perhaps things have changed.

They also were not called visas, but permits. Visa is for entering the country, permit is for staying.

[annagio_]

The article is about U.S and not Canada. Also yes, you can stay in Canada while apply + wait for the final decision, but if you get rejected, you have to leave. Also in your application, you have to state where you applying from. I find the Canadian immigration system clear and fast, login, input data, pay, wait.

[brimwats]

you can renew the same permit without, but you can't go from one type of permit to another (student to working prof in my case) without flagpoling; you also can't go from a visa to a permit without flagpoling

[zaptheimpaler]

Even if it is common (i don't think this is required any more anyways), just why? Why do we need to make someone run back and forth across the border for the immigration department to do some paperwork? It seems purely designed to inconvenience people for absolutely no gain to anyone.

[sigseg1v]

My guess: If they end up being denied then it's easier to not let them back in by not letting them cross the border whereas if it's in the country it's harder to locate them to deport?

Seems pretty brutal to me though.

[testing22321]

I was “denied” re entry doing a flag pole run once.

They let me in, but had me sign something that I would leave within 30 days.

[LorenPechtel]

I have a strong suspicion this is another way of doing an end run around the courts. If the person is denied entry can they realistically get that changed by a US court? I doubt it.

It also means that if you came here fleeing persecution that you might not be able to return.

[Majromax]

> Even if it is common (i don't think this is required any more anyways), just why?

As far as Canadian law goes, there are two factors at play in the parent's events;

* NAFTA work permits are applied for at the border, on entry; they operate differently from the 'normal' work permit streams.

* Permanent residence is conferred at the border, but the application process can happen either inside or outside the country depending on the stream. There are also limited 'inland' options which evidently have expanded (https://www.canada.ca/en/immigration-refugees-citizenship/se...) in recent years.

In neither case does Canada have a blanket rule that an applicant must leave the country during the whole of an extended application process, and even 'abroad' processes can often be carried out while an applicant is living in the country on other status. (It can get awkward if a consular interview is required, though.)

Unlike the US, Canada is generally comfortable with 'dual intent', where intent to apply for permanent residence through legal channels is not disqualifying for other sorts of statuses.

[pandaman]

A consulate overseas is more equipped to vet someone from the country where it is located than a USCIS office in New Hampshire. E.g. it has people able to read the documents in the local language and access to the officials who can validate those, it has people able to call or mail local authorities to ask about an applicant's involvement in crime, it has people who can recognize affiliations with local extremist groups etc.

It is actually really bizarre that the USCIS would essentially take the applicant's word without any vetting before this memo.

[scheme271]

Depending on the person, they may have spent years or possibly a decade or more in the US before trying to get an AOS. As such, the USCIS is probably a better adjudicator than a consulate.

[pandaman]

If someone came in as a child then it's true, and thus there is a discretion. Adults have history in their home country which does not disappear in 10 years or any period of time.

[zaptheimpaler]

Maybe they've heard of email, faxes, phone calls?

[pandaman]

I am sure they had, how is it relevant?

[testing22321]

Because the people and computer systems and processes to admit people into the country and start a visa or PR or whatever are located at the borders.

It’s just how things are done.

[brimwats]

largely/generally this is how it's done for NAFTA visas

[infamia]

> I don’t want to defend the cure administration, but it’s very common and normal for a country to require a person to leave to change status.

This new policy is different than the "flag poling" you've described. The new guidance requires immigrants to return to their country of origin, then apply for the change in status, and wait in their country of origin while the change in status is being processed/considered which can take many years. If the status changed is approved, they can move back to the US.

[rplnt]

You say "normal" and then add the other paragraphs, which are very clearly not normal. Common maybe.

[tootie]

They have repeatedly taken incredibly broad if not downright delusional interpretations of legal precedent and used them to set policy. They literally tried to override a constitutional amendment (birthright citizenship) with an executive order. They have been laughed out of court many times but have won a shocking number of these ridiculous cases. This is just another one. Set the maximal policy that they want and make their opponents challenge it in court. It's legal until someone (with standing) stops them.

[hax0ron3]

Trying to follow the Constitution literally is hard and in practice, it's not done. The political system just interprets the Constitution in whatever way the consensus of the given moment wants to interpret it. The 14th Amendment is clear that all persons born in the US are citizens of the US. However, if you follow the 2nd Amendment just as literally, it means that the Federal government, at least, cannot make any laws restricting us from owning nuclear weapons.

[tootie]

The second amendment is very much intended to protect access to military weapons. It was never intended to address personal defense or sport hunting but national defense by state militias.

[declan_roberts]

H1b (the visa status of nearly everyone here affected by this change) is only 36 years old. We're not talking about ancient case law here.

[jeremysalwen]

Is the legal precedent they are ignoring only 36 years old? No? I guess that makes us talking about case law older than 36 years then. (As we all know, laws less than 40 years old are option to follow anyways).

[justanotherjoe]

Gives them the freedom to interpret it 'case by case' which is to mean punishing businesses and states not aligned with Trump with a million inconveniences, while leaving his base unmolested. The most divisive and punitive president ever.

[motbus3]

I wonder why all of this

[dr_dshiv]

Don’t you technically leave the nation when you enter an embassy?

[stephen_g]

Not at all, no - embassies are granted special privileges but are still the territory of the country they are in.

[pseingatl]

No. This is a popular myth.

[jmyeet]

So this is an example of being careful what you wish for.

Neil Gorsuch's mother had to resign in disgrace as the EPA administrator under Reagan in a case that ultimately became what was called "Chevron deference" [1]. Chevron deference meant that when Congress wrote ambiguous statutes, courts would defer to the interpretation of the agencies responsible for enforcing them. Almost 40 years of laws were written with this standard in mind. Critics claimed Congress should be explicit but they know this is bullshit. Congress simply doesn't have the bandwidth to pass a law every time an agency wants to change a regulation and they know it. This is all about deregulation so companies are free to poison the air and water without fear of prosecution or lawsuits. It would allow, for example, a Federal circuit judge in Amarillo, Texas to issue a nationawide injunction on pretty much anything where before Federal judges had to defer to agencies.

It has been Gorsuch's life mission to avenge his mother's humiliation. Overturning Chevron became a mission of the conservative movement and they finally succeeded in a case called Loper Bright [2]. As an aside, Gorsuch really should've recused himself from the case. A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead. So that's been the law of the land since Loper Bright. That creates a number of problems:

1. To change an agency rule now requires a complicated process unde rthe APA of proposing a rule change, getting public comment and generally following a statutory procedure. This administration that wanted Chevron overturned never does that. So under Chevron they probably could've done that. Now? Any memo like this can be challenged for failing to follow procedure. There have been cases where USCIS has had temporary injunctions imposed on them for this reason: the judges are saying USCIS is likely to lose; and

2. This memo is relying on a Supreme Court case that considered adjustment-of-status ("AoS") an act of "grace". Well, that precedent was set under Chevron. Chevron no longer applies. So which is it? Do you want Chevron deference or don't you? You can't have it both ways;

3. Millions of people have open cases under the previous rules and interpretations. Courts are likely to take a dim view of a retroactive rule change like this. New cases filed after this memo was released may not enjoy the same protections; and

4. There are people who cannot or should not leave the US to consular process. They may have incurred unlawful presence that will then get them a 3 or 10 year bar from returning. This bar may well apply if they have to consular process instead of do an AoS. Some people may not be able to leave (eg asylees). The wait time to get an interview at a local embassy or consulate varies wildly. In some cases it's already more than 12 months. If you add over a million current AoS cases to that, the wait times are going to explode. But the cruelty is the point.

Also, decisions by consular officials have very limited ability to be challenged in court. That's also the point.

This will be challenged in court. I think it will make it up to the Supreme Court as early as the next term and this court more than any probably in history bends over backwards to let the president do whatever he wants.

[1]: https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....

[2]: https://en.wikipedia.org/wiki/Loper_Bright_Enterprises_v._Ra...

[rayiner]

Your comment is completely wrong:

For example:

> Overturning Chevron became a mission of the conservative movement

Chevron’s biggest proponent was Justice Scalia!

> A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead. So that's been the law of the land since Loper Bright.

Executive agencies have always been governed by the APA. That’s why it’s called the “Administrative” Procedures Act.

> To change an agency rule now requires a complicated process unde rthe APA of proposing a rule change, getting public comment and generally following a statutory procedure

That’s been true since 1946. That was the whole point of the APA. Chevron itself arose out of an EPA rule making under the APA.

You’re completely mistaken about what Chevron was about. It was just about whether courts must defer to agency interpretations of ambiguous statutes, or whether they get to decide the interpretation themselves.

[xg15]

> There are people who cannot or should not leave the US to consular process. They may have incurred unlawful presence that will then get them a 3 or 10 year bar from returning. This bar may well apply if they have to consular process instead of do an AoS. Some people may not be able to leave (eg asylees).

This feels like it might be the actual motivation of the Trump admin to do this change. The cruelty is indeed the point.

[gottorf]

> They may have incurred unlawful presence

> The cruelty is indeed the point

What's the difference between this and just outright saying that enforcing the law is cruelty? After all, nobody enjoys being punished, even if it's for breaking the law.

I don't want people to be unlawfully present in my country. Enough people desired that same outcome that, through the democratic process, we have laws controlling immigration. There has to be consequences for breaking that law. It absolutely cannot be the case that anyone can break the law and then have it not matter on the grounds that to make it matter would be cruel. What even is the point of the rule of law?

[Starman_Jones]

This cruel and unusual measure only applies to people following the law.

[airstrike]

Thank you for this fantastically informative comment.

[rayiner]

No, the comment is complete misinformation. In particular:

> A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead.

Executive agencies were always governed by the Administrative Procedures Act. The law was created in 1946 for the purpose of governing executive agencies.

OP is completely wrong about what Chevron and Loper Bright were about. Agencies have always had to do rulemakings with notice and comment to promulgate regulations. Those rules obviously have to follow the statutory law.

Chevron was about what happens when an agency action is challenged in court and the statute is ambiguous. Chevron says the agency gets deference from the court in deciding what the law means. The court has to accept ghr agency’s interpretation as long as it’s reasonable.

Loper Bright says the court has to decide what the law means itself, just like it does for any other law.

More broadly, this isn’t even a “conservative” versus “liberal” issue. Scalia was the biggest champion of Chevron and Gorsuch authored Loper Bright. Both were/are Federalist Society guys. This is an internal disagreement among conservatives about whether agencies or courts have the last word on what statutes mean.

[jmyeet]

So here was the first version of your comment that I saw:

> The comment is misinformation. For example:

>> A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act ("APA") instead.

> Executive agencies were always governed by the Administrative Procedures Act. The law was created in 1934 for the purpose of governing executive agencies.

So this seemed like the most ChatGPT comment, particularly because it made factual errors (eg APA was 1946 not 1934) but, hey, at least you corrected it. Maybe it was run through ChatGPT after the fact? I found this [1]:

> The U.S. doesn’t have a real statutory pathway to permanent residency for skilled immigrants. The current H1B to Green Card pipeline is built on a legal fiction papered over a visa program that was the word “non-immigrant intent” written all over the statute.

> Gemini gets this correct: “The H-1B visa is a nonimmigrant classification that allows U.S. employers to temporarily employ foreign nationals in ‘specialty occupations’ that require highly specialized knowledge and at least a bachelor's degree.”

Gemini, huh?

So back to the merits. Let me quote the actual decision [2]:

> Held: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled

This was what "Chevron deference" actually was: presumptive validity of agency interpretations vs what we have under Loper Bright where the APA is the only way of changing agency interpretations (other than Congress passing laws, of course). So, under Chevron, the USCIS could issue this memo and courts would've had to have largely deferred to the agency interpretation. Now they don't have that defense.

Or, to put it yet another way, it's what I said.

You should probably disclose your politics here. I'll use as an example this George Floyd comment [3].

[1]: https://news.ycombinator.com/item?id=48244638

[2]: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

[3]: https://news.ycombinator.com/item?id=48188084

[rayiner]

I made a typo and wrote “1934” instead of “1946,” which I quickly corrected.

Your comment meanwhile is still fundamentally wrong about the most basic facts: “A consequence of that was that the Supreme Court accepted an interpretation that executive agencies should be government by the Administrative Procedures Act (‘APA’) instead.”

The whole point of the APA was to govern executive agencies. So you’re wrong about the most basic premise of your post.

> This was what "Chevron deference" actually was: presumptive validity of agency interpretations vs what we have under Loper Bright where the APA is the only way of changing agency interpretations

Incorrect. The APA allows agencies to proceed in two ways: rulemakings and case by case adjudications. Agency interpretations can arise in either context. You don’t need a rule making to change an interpretation. You only need one to change something that was already a rule.

> Gemini, huH?

Yes, I quoted Gemini as a rhetorical device. “Even Gemini knows” that H1B is a temporary immigrant visa, not a pathway to permanent residency.

[59percentmore]

It is actually remarkable how much of the bullshit we have to put up with comes down to our giving power to craven or unscrupulous men with a chip on their shoulder.

Bush W. and his father's single term.

Biden and his family's troubles with the federal government.

Musk and gestures broadly at South Africa

Trump

I'm sure the list goes on.