English Translation

Lourdes Ubieta:
Well, friends, thank you for continuing to stay tuned to the program, completely live, Radio Libre 790, 96.5. We also greet the audience connected through social media, YouTube and X, @RadioLibre790, @LourdesUbieta. Thank you for tuning in.

Well, a rule from President Trump’s administration requires foreigners in the United States to apply for the permanent residence card abroad. Abroad, listening friends. A decision that was reported on Friday, an important change in that immigration policy that again states that non-U.S. citizens who have applied for a green card or legal permanent resident status must leave the country, even if they are legally in the country and regardless of whether they have spouses or relatives with citizenship.

Applicants for the permanent residence card must expect their application to be processed outside the United States through consular processing through the United States Department of State.

Attorney Martha Arias, immigration attorney, thank you for joining me as we begin the week with this news. It has been a while since we had news as important as this. Welcome to your home, attorney.

Attorney Martha Arias:
Good morning, Lourdes. A special greeting to you, your work team, and the entire audience. Happy beginning of this week, starting Tuesday. And yes, as you say, with a little bit of stressful news.

Lourdes Ubieta:
Exactly. Help us understand, attorney. The people who right now are in the United States, who have done everything correctly, are waiting only for their card, their card that will tell them that they are a legal permanent resident in the United States. Do they now have to leave the United States and wait for the approval of their residence in their country of origin?

Attorney Martha Arias:
Yes, it is the new administrative policy. Here we have to give a little bit of information to all people. The statute, which is the Immigration and Nationality Act, the Immigration and Nationality Law, that is the statute, that is the law. It is a law of Congress; that is, it is an organic law made by the Congress of the United States.

That law allows a person to adjust status inside the United States, what in English is called adjustment of status, as long as the person entered legally. And there are a few exceptions for those who can adjust status if they did not enter legally; they are few exceptions.

Now, it continues. That is still in the law. This policy that we are talking about today did not change that law. What happens is that in that organic law it also says that a person who is going to adjust status under section 245 of the law, which is this one that we are talking about, adjustment of status, is a petition that is discretionary. That is to say, the government can, at its discretion, approve it or deny it. The law also says that; it has always been there. Correct.

Now, what this memorandum is saying, this memorandum that comes out dated May 21 of this year, 2026, what it is saying is that the government is going to exercise that discretion that the organic law has case by case. In English it is said on a case-by-case basis, depending, and it will only approve it when extraordinary circumstances are shown as to why the person must adjust that status inside the United States.

So, in other words, the government has the right to issue administrative policies, and in this case the government is issuing this administrative policy, which gives it the right, let us say it that way, the organic law when it says that adjustment of status must be discretionary.

So they, in other words, take that word “discretionary” and use it to issue this administrative policy, saying case by case if the person shows us an extraordinary reason. In other words, it is going to be more difficult, so to speak, for the person to have their residence approved inside the country. The person would have to leave, but that does not mean that we cannot file them. Yes, because now we, the attorneys or the petitioners, are going to have to show what that extraordinary reason is that they are asking for, what the factors are that they have to show in order to achieve that extraordinary factor.

In other words, it is not an easy task, obviously, neither for the petitioner nor for us. But it is not that they are excluding that right from us either. And that is what I want people to understand, because the statute continues to allow adjustment of status under section 245. This is an administrative policy of this administration that is wanting to enforce that discretion, let us say it that way, in a stricter form and subjected to a higher standard of proof.

Lourdes Ubieta:
Again, attorney, because this is the question that the listeners are asking me while we are listening to you, right? The person who right now is waiting for their permanent residence, will they have to leave the country or is the other option to show that, since it is case by case, in their case they can stay waiting for the adjustment of status inside the United States?

I ask myself: what would those conditions be? Having work? A job from which they cannot be absent from the country? What are the variables so that a person can wait for that adjustment of status inside the United States?

Attorney Martha Arias:
Yes, that is a good question. That question of yours, we are going to divide it into two.

What are the variables or what we would have to show as factors to show an extraordinary condition, because the person deserves to do that adjustment of status inside the country?

There is not yet an immigration memorandum that explains. However, always in other cases there has been talk of factors such as, for example, the person’s education; if they have the economic capacity to support themselves without becoming a public charge; the criminal history, if they have crimes or criminal records; the circumstances in which they left their country and whether they can return to their country; the community ties they have inside the United States, let us say if they have all their family here or at least the close family; what community ties they still have in their country of origin; issues also, for example, such as illnesses, medical conditions, all of that. That is part of what one can show for that extraordinary reason.

The extreme pain, if it exists or if there is any, in the family member who petitions for them. Let us say, it is a son who is petitioning for the mother or it is a husband who is petitioning for his wife. If that husband or that son, well, would suffer in a condition, an extraordinary pain, in the event that residence is not given to their beneficiary. So, all those are the factors.

What does that mean? That they will have to prove with more documents. What they need is more work for us and for the people. And obviously for the adjudicating officer himself, because the adjudicating officer now is going to be covered with a quantity of documents that will tend to show that extraordinary condition.

So, I repeat again, this came out last week, on the 21st, in the memorandum. I read the memorandum. The memorandum talks about what we are talking about here: case by case, humanitarian reasons, the discretionary aspect, that is what it talks about. The officers still do not have exact guidelines, and I say it because fellow immigration attorneys had appointments on Friday after it was issued. And now, today, during the course of the morning, since we have communications by email, the same officers still do not have guidelines. They are asking people who had appointments, for example today, for proof of an extraordinary reason and proof such as what I mentioned now: time here, family here, all of that.

So, I imagine the guidelines will continue to come out. We have to keep informing ourselves little by little about what other guidelines they are going to have, but for now what I mentioned to you about those factors is something for which people have to begin collecting documentation.

Now, regarding the first question, which is also very important, whether this is going to affect people who already had pending petitions before this memorandum was issued on May 21. I do not, I repeat again, there are not yet explicit immigration guidelines to the officers or public ones where already…

Lourdes Ubieta:
Usually it is not retroactive, right? It is from the moment of the publication date. Laws usually are not retroactive, right?

Attorney Martha Arias:
Yes, laws, that is an interesting topic, because laws from Congress can be retroactive. Case law or jurisprudence normally is not. Now, this is neither from Congress nor is it from a judge; it is the same administrative policy.

As an administrative policy, administratively, in most cases the Executive cannot issue policies backward either. So, I do not believe that from the point of view, let us say, of the mechanics of the law, of how it applies, we can issue an administrative policy, whether one year or two years back, because then we would have total legal chaos.

So, I do not believe it will apply to the past, but this is my opinion as an attorney and taking into account the foundations of the law and the interpretations that one studies in university. The administration can come out and say: “Yes, I can apply it to pending cases, not adjudicated.” And there then we would enter into, let us say, a legal discussion between us, the attorneys, and the administration, which perhaps would go to a federal lawsuit to try to prove that this should not apply to those who have pending petitions, only to petitions received by immigration after May 21.

But I repeat again, Lourdes, there is nothing in the memorandum nor in any guidance that says immigration is saying that it is going to apply it retroactively. But obviously we suppose that it will be that way. I have an appointment, for example, this week, and I imagine that I am going to go prepared to see what the officer is going to tell me, if he is going to give a request for evidence, and obviously we are going to have to argue that it did not apply to our clients.

But that does not mean that the battle is going to be… If the administration is going to apply it to cases that were pending, then that will go further or we will go there, if this will go to the courts. But the processes that go to the courts, as you know, are slow and take time. So, an immediate answer, I do not know if we are going to have it.

Lourdes Ubieta:
Very well, attorney. Nonimmigrants, such as students, temporary workers, or people with tourist visas, come to the United States for a short time and with a specific purpose, they say from the Department of Immigration, and then our system is designed for them to leave when their visit ends. Their visit should not function as the first step in the process of the residence card. That is what Koller says, the spokesperson for the Department of Immigration.

And it is true, we saw people who have arrived as tourists and then looked for a way to stay legally in the United States, attorney. Now it seems that it is like a change in the vision of the immigration issue.

Attorney Martha Arias:
Well, that part has always been the same also. The person who enters with a tourist visa is given six months to stay. Of course, it does not mean that they have to stay the six months. Obviously they come for one week, I do not know, ten weeks, ten days to visit their relatives or to walk around, vacation, but that is the same. The same with the one who enters with a student visa. But what happens is that life is not linear.

Lourdes Ubieta:
Black and white, that is right, of course.

Attorney Martha Arias:
Life is not linear.

Lourdes Ubieta:
But it is that one has to go case by case, attorney. That is it, one has to go case by case.

Attorney Martha Arias:
Each human being has, let us say, some turns, some changes in normal life. Some changes that are from one moment to another.

For example, how many times does it not happen with all these young people who come to study, to complete a career here, and they are offered a tremendous job? And they are offered a tremendous job because they have the intellectual capacity, because they have the skills.

Lourdes Ubieta:
That is good for the United States. It is good for the United States.

Attorney Martha Arias:
And that, for example, is a reason. Elon Musk himself entered first with an H-1B visa, which is a visa of extraordinary abilities, and he stayed and has generated wealth, employment, and things in the United States. Albert Einstein himself, did he not enter as a man who entered with intellectual capacity? This country is made up of a quantity of foreigners with levels that have stood out worldwide because of their own abilities.

Life changes, life turns. Those who come to study and study a career of three or four years and find the love of their life there and get married and decide to stay here because they already have three or four years studying here, they already have work and all the careers: doctors, engineers, any career that you want. In other words, life turns. That person initially surely had the intention of returning to their country, but they found that and why not?

The same thing we see in the same administration. We see the wives of many people who are in the administration who entered here with whatever other visa it may have been and stayed and found love, joined together and married and received adjustment of status. In other words, that is life. Life brings us turns and it may be that what one planned does not come out. Life is not linear.

So that is the point. Suddenly, I do not know, we are placing things, flexibility, and the same law is set forth in that form. If the person entered legally, they have the possibility of requesting adjustment of status, the law says it. In other words, that concept of flexibility is in the law. What happens is that now the administration wants to establish the administrative policy more strictly, perhaps without looking much at the human factor of understanding.

It is true that there are abuses, Lourdes, you and I know it and everyone knows it.

Lourdes Ubieta:
Of course.

Attorney Martha Arias:
It is that there must always be a middle line.

Lourdes Ubieta:
Case by case is the answer, my attorney. Case by case.

Attorney Martha Arias:
Yes, case by case, but also a middle line, because there are people who come, yes, with the tourist visa and come already with the preconceived intention of staying. I personally, as an attorney, have quantities of cases that call me to consult me. An American citizen tells me: “I want to bring my partner. She has or he has a tourist visa.” And I tell him: “Look, the correct way is with the fiancé visa or for the person to petition for them while they are there, because with a tourist visa it is not the correct thing.”

That has never been advice that one, for example, as an honest attorney gives. But people sometimes do those crazy things. They enter with their tourist visa and stay here, and that is it.

So those are the things that have to be seen, because obviously what is incorrect is sanctioned, but not everyone has that malice either. Sometimes they come innocently. I had a client who came, a lady innocently, she was visiting her son and her son was diagnosed with a terrible illness and she had to stay to take care of her son because the wife had to continue working to maintain the house, to maintain the children they had, and she was cooking for him and taking care of the son. In other words, imagine those things that happen. That is life.

Lourdes Ubieta:
Very well, attorney, I thank you very much for attending us this morning and sharing this very important information with the listeners. Information in immigration. We are a country of immigrants in the United States, listening friends.

Martha Arias, immigration attorney. Attorney, happy week. Thank you for joining me.

Attorney Martha Arias:
Thank you, have a nice day.

Lourdes Ubieta:
Likewise.