The U.S. Department of Homeland Security (DHS) has issued new guidance concerning the detention and re-screening of resettled refugees who have failed to adjust to lawful permanent residence (LPR) status as required under U.S. immigration law. Refugees admitted to the United States are legally required to apply for permanent residence one year after arrival. This adjustment process allows immigration authorities to conduct a second round of vetting before granting permanent resident status.
The one-year inspection is not discretionary; it is a statutory step designed to determine whether a refugee remains eligible to stay in the United States as an LPR, whether refugee status should be terminated, or whether the individual should be placed in removal proceedings.
Under the new policy, federal immigration officers may arrest refugees who have not applied for adjustment of status and detain them pending re-screening. This marks a significant shift from the practice followed for decades, during which failure to apply for adjustment of status alone was generally not treated as sufficient grounds for detention.
Under the new policy, federal immigration officers may arrest refugees who have not applied for adjustment of status and detain them pending re-screening.
The policy aligns with the Trump administration’s broader reassessment of refugees resettled under the Biden-Harris administration, given the scale of admissions and the extent of programmatic changes in the refugee resettlement program implemented during the Biden years. It also follows the launch of Operation PARRIS (Post-Admission Refugee Reverification and Integrity Strengthening) in Minnesota, an initiative designed to identify fraudulent refugee applications and strengthen post-admission oversight.
According to DHS, re-vetting refugees during the adjustment process adds an important safeguard intended to protect “national security, public safety, and the integrity of the immigration system.” Prior policies did not enforce reinspection measures; refugees who did not apply for adjustment of status but could nevertheless remain in the United States, were, in essence, only subject to “an artificially time-limited vetting process” during the admission process that was far from perfect.
In practice, the refugee resettlement adjudication process – from referral to the U.S. Refugee Admissions Program (USRAP), to assistance and pre-screening by Resettlement Support Centers (RSCs), through multiple layers of security vetting, adjudication by a USCIS refugee officer, and ultimately admission to the United States – was far from flawless, particularly under the prior administration. Each stage contained vulnerabilities and discretionary gaps that warrant ongoing review and reassessment.
A Potential Additional Safeguard: Conditional Permanent Residence
The adjustment process itself could incorporate another safeguard. Several years ago, I suggested introducing a two-year conditional green cards for refugees (see here and here) rather than immediately granting permanent residence.
Under current law, refugees must apply for adjustment to lawful permanent resident status one year after admission to the United States. Once granted permanent residence they enjoy nearly all the benefits of a U.S. citizenship except for the right to vote and hold public office, and may apply for U.S. citizenship four years later (the five-year residency requirement for naturalization begins on the date of arrival for resettled refugees, not the date of adjustment to permanent residence).
Instead of granting permanent residence at the adjustment stage, policymakers could consider issuing refugees two-year “conditional permanent residence” similar to the conditional status granted to marriage-based immigrants.
Conditional permanent residents receive a green card valid for two years which is not renewable. During the 90-day period preceding its expiration, they must file a petition to remove the conditions on their residence. If the petition is denied (or not filed) the individual loses permanent resident status.
Granting conditional residence, as with marriage-based immigrants, would create an additional opportunity for case review several years after resettlement.
Applying such a framework to refugee cases would create an additional opportunity for case review several years after resettlement (at least three years – one year until the granting of conditional permanent residence, plus the two years of conditional residence). This could help identify fraudulent persecution claims that may not have been detected during the initial adjudication process and potentially reveal emerging security concerns or radicalization. It could also help reveal real motivations (including opportunistic stands) and assess whether meaningful integration into American society is taking place. Moreover, if fraud is discovered (or worse, underlying national security threats are uncovered), conditional green cards are far easier to revoke than permanent ones.
Furthermore, this three-year window could allow refugees to reconsider their stay. Refugees might find life in the U.S. too hard or too different, or simply feel homesick. The situation in their home countries could have also evolved, as we’ve seen with Syria this past year, making return not just desirable but possible.
The February DHS Memorandum
The new policy was formalized in a memorandum issued last month titled “Detention of Refugees Who Have Failed to Adjust to Lawful Permanent Resident”.
The memorandum revises guidance governing when U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) officers may detain refugees who have not complied with the statutory requirement to seek adjustment of status.
The Trump administration determined that prior policy decisions and operational guidance had resulted in incomplete implementation of section 209 of the Immigration and Nationality Act (INA) which governs the adjustment of status of refugees.
Under INA § 209(a)(1), 8 U.S.C. § 1159(a)(1), the admission of refugees is conditional, and refugees are subject to mandatory review by USCIS for admission to the United States as an LPR after one year of physical presence in the country.
The statute, entitled "Adjustment of Status of Refugees", provides that a refugee who has been physically present in the United States for at least one year “shall, at the end of such year period, return or be returned to the custody of the Department of Homeland Security for inspection and examination for admission to the United States as an immigrant.”
According to DHS, the previous failure to enforce this statutory requirement created a population “of conditional refugees who had not been fully re-screened, with associated public safety and national security risks.”
Under the revised policy, the one-year mark must be treated as a “mandatory re-vetting point” for all refugees, making sure they are either scheduled to return to custody or, if they do not comply, that they “be returned”.
The new memorandum rescinds earlier guidance – including the 2010 USCIS Chapparo Memorandum – which held that failure to apply for adjustment of status alone for refugees was not “a sufficient ground to place them in removal proceedings, and therefore not a basis for detaining them” and that, if detained, refugees had to be released within 48 hours unless other grounds for detention existed.
Under the revised policy, the one-year mark must be treated as a “mandatory re-vetting point” for all refugees, making sure they are either scheduled to return to custody or, if they do not comply, that they “be returned”. The policy also notably removes the prior requirement that DHS release unadjusted refugees within 48 hours or initiate removal proceedings immediately. Instead, detention may last for the “reasonable length of time it takes to inspect and examine” admissibility.
This new “detain-and-inspect” requirement ensures that “refugees are re-vetted after one year, aligns post-admission vetting with that applied to other applicants for admission, and promotes public safety.”
The second round of vetting is intended to help identify immigration fraud, including the use of false identities, forged documents, or misrepresentation of facts in refugee applications. Individuals found ineligible for admission as LPRs may have their refugee status terminated and may be placed in removal proceedings.
The new policy can also help identify those with ties to terrorism, criminal organizations, or hostile foreign entities, reducing the likelihood of giving permanent residence to individuals who could pose a threat to the national security of the United States.
Legal Challenges
The February 18 memorandum has already been challenged in court.
The “Detention of Refugees Who Have Failed to Adjust to Lawful Permanent Resident” policy surfaced in litigation in U.H.A. v. Bondi, a case filed in federal court in Minnesota challenging the Trump administration’s review of refugee cases admitted under the Biden-Harris administration.
In U.H.A. v. Bondi, plaintiffs contested the arrest and re-interview of refugees in Minneapolis under Operation PARRIS. The lawsuit was filed by the International Refugee Assistance Project (IRAP), with Berger Montague and the Center for Human Rights and Constitutional Law acting as co-counsel. The plaintiffs include a group of refugees as well as “The Advocates for Human Rights”, a nonprofit organization with offices in Minnesota that provides pro bono immigration legal services.
A separate lawsuit, Jean A. et al. v. Noem, challenging the new DHS Detention of Refugees memo was filed on February 27 in federal court by Democracy Forward and IRAP on behalf of six refugees, Jewish Family Service of Western Massachusetts, and the International Institute of New England.
In that case, a federal judge in Minnesota issued a preliminary injunction blocking enforcement of the February 18 memo, characterizing it as “a new and erroneous statutory interpretation [used] to terrorize refugees.” The Trump administration has yet to appeal the ruling.
As with many immigration policy initiatives, their ultimate scope and legality will ultimately be determined in court.