- Thousands of foreign nationals with employment-based visas must now leave the US to apply for permanent residency, a shift from past policy.
- This revised guidance affects individuals on H-1B, L-1, and other nonimmigrant visas, who previously could adjust their status without departing the US.
- The new policy may delay processing by months or years, stranding families and depriving American companies of critical talent.
- The US Department of Homeland Security formalized this change in late 2020, citing a revised interpretation of immigration law.
- This policy shift primarily targets foreign nationals who have lived and paid taxes in the US for years.
Why are thousands of foreign nationals already living and working legally in the United States now being told they must leave the country to apply for permanent residency? This sudden shift in green card policy, introduced during the final months of the Trump administration, has sparked confusion among immigrants, employers, and legal experts. For decades, individuals on employment-based visas like the H-1B could adjust their status to lawful permanent residents without departing U.S. soil. Now, under revised guidance, many are being directed to apply from their home countries—a move that could delay processing by months or years, strand families, and deprive American companies of critical talent at a time of tight labor markets.
What Changed in the Green Card Application Process?
The U.S. Department of Homeland Security, in a move formalized in late 2020, revised its interpretation of immigration law to require certain foreign nationals already residing in the U.S. to return to their home countries and apply for green cards through consular processing. This primarily affects individuals who entered on nonimmigrant visas such as H-1B (skilled workers), L-1 (intra-company transferees), and others, even if they have lived and paid taxes in the U.S. for years. Previously, such individuals could file for adjustment of status under Section 245(a) of the Immigration and Nationality Act. The new policy argues that those who did not initially enter with the intent to immigrate are ineligible for in-country status adjustment, a stance that contradicts decades of established practice and legal precedent.
What Evidence Supports the Need for This Change?
Supporters of the rule, including senior officials in the Trump administration, argue it restores integrity to the immigration system by aligning with the original purpose of temporary visas. Ken Cuccinelli, then acting deputy secretary of DHS, stated the policy corrects a “loophole” that allowed foreign workers to effectively bypass immigration caps by changing status without leaving. According to Reuters reporting, the administration framed the change as a way to ensure fairness and prevent abuse of temporary visa categories. Data from U.S. Citizenship and Immigration Services (USCIS) shows that over 200,000 employment-based adjustment applications were filed annually in recent years, many from individuals on long-term work visas. However, immigration economists caution that the supposed abuse is minimal. A 2019 study published in Humanities & Social Sciences Communications found that skilled immigrants contribute disproportionately to innovation and job creation, with little evidence of systemic visa misuse.
What Are the Counterarguments to the New Policy?
Critics, including the American Immigration Lawyers Association (AILA) and major tech firms, argue the policy undermines economic competitiveness and contradicts both legislative intent and administrative history. They point out that Congress has long allowed dual intent—meaning individuals can hold temporary visas while pursuing permanent residency—on visas like the H-1B. The new interpretation, they say, creates legal uncertainty and penalizes individuals who followed the rules. Legal challenges have been filed, with judges in previous cases ruling that DHS overstepped its authority by unilaterally changing long-standing policy. Additionally, processing green cards abroad can take significantly longer due to visa backlogs, country-specific quotas, and limited consular capacity—especially in nations like India and China, where tens of thousands of skilled workers originate. This could force U.S. employers to lose trained employees mid-career, disrupting projects and increasing recruitment costs.
What Are the Real-World Consequences for Workers and Employers?
For tech startups, research institutions, and multinational corporations, the rule could lead to talent attrition and slowed innovation. Consider the case of a software engineer from India who has worked in Silicon Valley for eight years on an H-1B visa. Under the old system, they could apply for a green card while continuing to work. Under the new rule, they must leave the U.S., potentially lose their job, and wait abroad—sometimes for over a year—before returning. Families are also affected: spouses and children may be forced to relocate, disrupting education and healthcare access. Companies like Google and Microsoft have previously lobbied against such restrictions, warning they cede competitive advantage to countries like Canada and Germany, which actively recruit skilled immigrants. The U.S. Chamber of Commerce has called the policy “a self-inflicted wound on the American economy.”
What This Means For You
If you’re an immigrant on a work visa or an employer relying on global talent, this policy signals increased uncertainty in the path to permanent residency. It could mean longer wait times, higher relocation risks, and greater legal complexity. While the Biden administration has paused some Trump-era immigration restrictions, this rule remains under review, leaving many in limbo. Understanding your eligibility and planning ahead with legal counsel is now more important than ever.
Will future administrations reverse this policy, or will the U.S. continue tightening access to permanent residency for skilled workers? And how might states or private companies respond—through lobbying, alternative visa sponsorship, or relocation incentives abroad? The answers could shape America’s economic trajectory for decades.
Source: Financial Times