Parents' Easy B-2 Travel History Now Argues Against Their Green Card

A caller on the May 28 Immigration Answer Show filed I-485s for his parents a couple of weeks before USCIS issued PM-602-0199. Their record is spotless: no DUIs, no overstays, fifteen years of B-2 visits and extensions, always leaving on time. He assumed that made them an easy approval. Under the new discretion memo, it may do the opposite.

The memo tells officers that where an applicant could get an immigrant visa abroad, adjusting inside the country is an “extraordinary” act of grace, and that the failure to leave and consular process is an adverse factor “particularly” when the applicant “could have achieved that goal through the normal immigrant visa process.” Parents who travel back and forth with ease are the people who most obviously could. Their clean history proves they can come and go, which is the exact thing the memo now reads as a reason to send them home to do it.

Hacking pressed the caller for a hardship that would offset that. The best he had was that his mother fell twice on visits, once needing an ER, and the family worried it would happen again. On the show, that did not move the needle.

There is a second twist here that most callers get backward. Because the parents filed while still in valid B-2 status, they are not accruing unlawful presence while the I-485 sits, and they face no reentry bar if they leave. That is good news for their ability to consular process, and it is precisely why their discretion case is weak. A green card applicant whose departure would trigger a ten-year bar under INA 212(a)(9)(B) has a real argument that adjusting here is the only realistic path. Parents who can simply fly home, wait for the approved I-130, and interview at the consulate have no such trap. The convenience that makes their case easy to resolve abroad is the convenience the memo uses against them.

So Hacking’s advice was to spend little time on the fall and most of it on the law. The move is to argue that the memo is not a lawful rule at all, that it cannot be applied retroactively to people who filed in status when the old practice was in force, and that they held valid status on the day they filed. He framed it with an old courtroom line.

For these parents, the facts on hardship are thin, so the case rests on the law: this is a policy shift by memo, not statute, and it landed after they had already committed. That reliance argument is strongest for filers who beat the May 21 line, which is why practitioners are now sorting pending I-485s by their receipt date. The mirror image of this case is the Canadian spouse, who has the single weakest “why can’t you consular process” answer of anyone for the same reason: leaving is too easy. And the ground rules for all of it sit in our full read of PM-602-0199.

The honest read for anyone bringing parents in from a visa-free or easy-travel country: the relationship is not the problem, the discretion is. Keep the I-130 and the bona fides airtight, be ready to answer the consular-processing question without leaning on a hardship that will not hold, and understand that if the worst happens and mom and dad do go abroad, switching an approved case to the consulate means an I-824 and, in Hacking’s estimate, another six-month wait just to get USCIS to move the file.