The new USCIS adjustment memo asks every applicant the same question: why can’t you go get your immigrant visa abroad? For a Canadian married to a U.S. citizen, that is the hardest one to answer. A Canadian caller named Miss P, in St. Louis visiting her U.S.-citizen husband, asked the Immigration Answer Show how to prove she should adjust inside the country rather than process in Canada. Founding attorney Jim Hacking told her she was framing it backwards.
mic What the Attorney Says
“The question isn’t can I adjust status? The question that they’re asking is tell us why you can’t go back and consular process.”
Adjustment of status under INA § 245(a) — 8 U.S.C. § 1255(a) — has always been discretionary, but Policy Memorandum PM-602-0199 now instructs officers to treat it as something rare rather than routine.
mic What the Attorney Says
“That adjustment of status is supposed to be rarely granted. It’s not supposed to be the normal way that most people who get immigrant visas through a spouse are supposed to consular process.”
This is where nationality matters. The callers with the strongest adjustment arguments are those who literally cannot consular process: nationals of countries on the travel ban, whose embassies are barred from issuing immigrant visas, or people who would trigger a 10-year unlawful-presence bar the moment they left. A Canadian who has been in the United States a few months has neither problem. Canadians are generally visa-exempt under 8 CFR § 212.1(a), and the U.S. Consulate in Montreal processes immigrant visas without a ban standing in the way.
mic What the Attorney Says
“The question would be, Ms. P, why can’t you just go back to Canada and wait like all the other people that are married to US citizens that are waiting in line at the embassy for an interview.”
Miss P offered the human reasons, a life built here and fertility treatment under way. Hacking’s view was that empathy is not what the memo measures. He described the standard as one almost no one can satisfy.
mic What the Attorney Says
“I don’t think anyone’s going to be able to meet the standard. I think it’s an almost impossible standard, which is why they’ve injected it into the process so that they can deny a bunch of people green cards and put them in removal.”
For a Canadian, that reframes the decision. Staying to adjust means betting on a court striking the memo down while accepting a small chance of being placed in removal, or even detention, if the bet fails. Going home to Montreal means a clean immigrant-visa interview with no bar to overcome and no discretion fight at all. The record an adjustment applicant has to build is precisely the record a Canadian is least able to build, because the easiest honest answer to “why can’t you consular process” is that she can.
Sources
- 8 U.S.C. § 1255(a) — Adjustment of Status (Cornell LII) open_in_new
- 8 CFR § 212.1 — Documentary Requirements and Canadian Visa Exemption (Cornell LII) open_in_new
- USCIS Policy Memorandum PM-602-0199 — Adjustment of Status and Discretion (May 21, 2026) open_in_new
- U.S. Department of State — The Immigrant Visa Process (Consular Processing) open_in_new
- Hacking Immigration Law — live broadcast (June 17, 2026) open_in_new