Published by: The Times of India - May 23, 2026
https://timesofindia.indiatimes.com/world/us/uscis-memo-requiring-consu…
Quotes and Excerpts from Rajiv in the article:
Rajiv S. Khanna, managing attorney at Immigration.com, said the policy strikes at the heart of the decades-old bargain underpinning America’s employment-based immigration system.
“The population most affected is the one that has followed every rule most scrupulously: H-1B workers who have been in the employment-based green card queue for years, sometimes decades, maintaining lawful status throughout, paying taxes, building careers, raising families in the US,” Khanna said.
He noted that although the memo acknowledges dual intent, it still concludes that maintaining lawful H-1B status “is not, on its own, sufficient for a favourable discretionary outcome. “These workers now need to affirmatively prove that they deserve what Congress explicitly authorized them to pursue,” Khanna said.
Khanna pointed out that the consular processing ‘alternative’ that the Trump administration offers deserves scrutiny on its own terms. H-1B visa stamping interview wait times at the Mumbai consulate currently exceed 200 days. The State Department has cut more than 1,300 civil service and foreign service positions since January 2025, and consular sections in India are processing more cases with fewer officers.
Collision course with AC21 protections
Khanna said one of the least discussed implications is the possible conflict with AC21 — the American Competitiveness in the Twenty-First Century Act — which allows workers stuck in green card backlogs to change employers after their I-485 adjustment application has remained pending for 180 days.
“That protection is a statutory right. It requires a filed I-485,” Khanna said. “The memo now invites officers to treat the act of filing that I-485 as a discretionary ‘act of grace.’”
“The executive branch created the delay; Congress created statutory relief for the people trapped in it; and the executive branch’s pen now overrules the will of Congress,” he added.
Khanna also linked the memo to long-standing H-1B extension protections. “The same travesty runs through the H-1B extension framework: beyond-six-year H-1B extensions exist because Congress recognized that many professionals, especially Indian nationals, would be waiting decades for their green cards. The implicit bargain sealed by Congress was that the pursuit of permanent residence was encouraged. This memo turns that bargain against the workers who relied on it.”
Khanna argues that there is no empirical basis for that claim as applied to the primary population this memo affects. H-1B workers and employment-based applicants who receive adverse decisions generally appeal, refile, or depart voluntarily. Characterizing them as a future enforcement problem, without data and without acknowledging their years of lawful status and contributions, reflects a bias that the law and the facts do not support.
“My immediate advice to Indian nationals with pending I-485 cases: do not withdraw. Build an affirmative record now of your taxes, your contributions, your family ties, your professional standing. The Supreme Court's 2022 decision in Patel v. Garland stripped federal courts of jurisdiction to review most factual findings in adjustment cases. Whatever record you build at the USCIS level is effectively the only record that will ever matter. Prepare it carefully,” he emphasised.