[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.