Mark Scheffler, a candidate in the WI-08 Democratic primary, has published an immigration framework that includes something he calls the SAFE Registry: Secure Accountability for Foreign Entrants. His website describes a “modern, secure, digital system” to document people who are required to register under federal law. His answer in the League of Women Voters candidate guide describes “a SAFE national immigrant registry for undocumented workers.”

His primary opponent, Rick Crosson, issued a statement today calling the proposal dangerous. This post is not that statement. This is the legal and technical case for why the proposal cannot do what it claims, walked through the way I would walk through any agency memo or policy announcement: by asking whether the instrument can deliver what the author promises. This one cannot, and the ways it cannot are revealing.

The registry already exists, and it is being used against the people on it

Alien registration is not a new idea waiting for a visionary candidate. It has been federal law since 1940. Section 262 of the Immigration and Nationality Act requires most noncitizens who remain in the United States for 30 days or more to register. Section 265 requires them to report every change of address within ten days. Willful failure to register is a federal crime.

For decades those provisions sat mostly dormant because there was no practical mechanism to comply. That changed in 2025, when DHS created Form G-325R and an online registration process and paired it with public messaging that registration was an enforcement priority. The federal government is, right now, operating an alien registry and treating non-registration as a hook for criminal exposure.

So when a congressional candidate proposes “creating” a registry that “would build upon existing federal registration requirements,” he is proposing to rebrand a system that already exists, is already mandatory, and is already functioning as an enforcement tool. There is no policy content in the proposal. There is a name, a gimmick.

The central promise is one no member of Congress can keep

Scheffler’s website says the registry “would not determine immigration status, nor would it be accessible by law enforcement (ICE).”

Read that sentence the way a lawyer has to read it. Registration is a DHS function. USCIS, which runs the current registration process, sits inside DHS. ICE sits inside DHS. The proposal never identifies which agency would administer the SAFE Registry, and there is no plausible option that is not an immigration enforcement agency or its sister component. The promised wall between the database and the enforcers is a wall inside one building.

Could Congress write statutory confidentiality protections? In theory. In practice, the history of confidentiality promises attached to government lists of noncitizens is a history of those promises failing:

• The 1940 census. Census confidentiality was suspended by statute during World War II, and census data was used to identify Japanese Americans for internment.

• NSEERS. The post-9/11 special registration program registered tens of thousands of men and boys from majority-Muslim countries. Thousands of registrants were placed in removal proceedings based on information they voluntarily provided. The program produced no terrorism convictions from the registration itself and was eventually shut down.

• DACA. Applicants were assured their information would generally not be used for enforcement. That assurance was agency policy, not statute, and every administration since has been free to revisit it.

• ITINs and tax records. For decades, undocumented workers were told that filing taxes was the safe, responsible thing to do, and that taxpayer data was walled off from enforcement. In 2025, the IRS signed a data-sharing agreement with immigration enforcement. The people who did exactly what the government asked are now findable because they did it.

The pattern is not subtle. A database of people organized by immigration status outlasts the intentions of whoever built it. The next administration inherits the list, not the promise.

The infrastructure is already built, and it runs on lists

The confidentiality problem is no longer only historical or legal. It is architectural. The federal government has spent the last two years building an enforcement apparatus whose entire design purpose is to fuse lists.

ICE operates ImmigrationOS, a Palantir-built platform layered on top of the agency’s case management system, designed to streamline the identification, prioritization, and removal of targets. Its tactical layer is a targeting tool called ELITE, short for Enhanced Leads Identification and Targeting for Enforcement. According to an internal user guide obtained by 404 Media and sworn testimony from an ICE officer in Oregon litigation, ELITE builds dossiers on individuals, assigns confidence scores to home addresses, maps neighborhoods by target density, and exports the lists that agents act on in the field. It ingests data from across the government and beyond: Health and Human Services records including Medicaid enrollment, USCIS files, Social Security data, license plate readers, and commercial data brokers.

Two details from that user guide matter here. First, ELITE is built to integrate new data sources. That is a feature, not a footnote. Second, the guide indicates that during special operations targeting “groups of pre-defined aliens,” normal safeguards in the tool may be turned off.

Sit with that phrase. Pre-defined groups. A registry of undocumented immigrants, complete with verified identities and current addresses, is not merely at risk of being absorbed by this system. It is the system’s ideal input. It is a pre-defined group with a confidence score of 100.

Nearly every database now feeding this apparatus was, at some point, promised to be safe. Medicaid enrollment was healthcare, not enforcement. Tax filings were revenue, not targeting. The proposal on the table asks voters to believe that one more list, this one composed entirely of the people the apparatus exists to remove, would be the exception.

What the data-driven dragnet does in the real world

This is where the analysis stops being abstract, because in the past week the country got two demonstrations of what happens when address-based targeting meets aggressive field enforcement.

On Monday morning in Biddeford, Maine, ICE agents surveilling the last known address of a man with a final removal order shot and killed 26-year-old Joan Sebastian Guerrero as he left for work. Guerrero was not the target. According to Maine’s congressional delegation and immigrant advocacy groups, he was authorized to work in the United States and had a Social Security number. His wife and three-year-old daughter were reportedly at the scene. Six days earlier in the Houston area, an ICE agent shot and killed 52-year-old Lorenzo Salgado Araujo during a traffic stop. He was not the target of that operation either. The administrative warrant named other men, one of whom agents believed was in the vehicle Salgado Araujo was driving.

Notice what connects the two deaths. Neither man was on the target list. Both were killed because enforcement data placed them near it: a last known address in one case, a suspected vehicle match in the other. That is how list-driven enforcement fails. The list does not have to be wrong about you. It only has to put armed agents in your proximity.

Now hold that reality next to a proposal asking undocumented residents to voluntarily file their names and home addresses with the federal government. The proposal does not just misjudge the risk to the people who would register. It misjudges the risk to everyone who lives with them, works with them, or happens to be leaving the driveway at the wrong time.

What does a registrant get? Nothing. That is not an oversight

Here is where the proposal stops being merely uninformed and starts contradicting itself.

The website version is explicit that the registry would not grant legal residency, would not provide work authorization, and would not create immigration benefits. Its purpose would be “administrative accountability.”

Strip away the language and look at the transaction. An undocumented person is asked to hand the federal government their name, address, and an admission of unlawful presence. In exchange they receive nothing. No status. No protection from removal. No work authorization. Not even a commitment that the information stays out of the targeting tools described above, because as we have covered, that commitment cannot be made.

No competent immigration attorney could advise a client to participate in that exchange. Registration under those terms is self-surrender with extra paperwork.

Now compare the LWV guide version, where the same candidate promises “temporary protected status for all registered immigrants” and a pathway to permanent residency or citizenship. Set aside that this flatly contradicts his own website. It is also a statutory impossibility. TPS is not a benefit an agency can hand out to registrants. Under INA 244, the DHS Secretary designates specific countries based on conditions in those countries, and eligibility flows from nationality. “TPS for everyone who signs up” is not a policy position. It is evidence that the candidate does not know what TPS is.

When a proposal changes its core promises depending on which audience is reading, that tells you what the proposal is for. It is not for immigrants. It is for voters.

The fear this proposal ignores is already reshaping daily life

Every immigration attorney in the country is having the same conversations right now. Clients skipping medical appointments. Parents rearranging school pickup so the undocumented spouse never has to be the one at the curb. Workers weighing whether an injury is bad enough to justify the risk of an ambulance. Families writing out guardianship plans at the kitchen table in case a knock comes.

These are people making daily calculations about whether it is safe to go to the grocery store, to send their kids to school, to show up at church. The proposal on the table asks them to voluntarily file their names and home addresses with the federal government, for nothing in return, during the most aggressive interior enforcement climate in modern memory, in the same week that climate produced two funerals for men who were not even targets.

Anyone who has spent an hour with the affected community knows how that lands. Which is the point. Among practitioners, the reaction to this proposal has been unusually uniform: it reads as the work of a candidate who has never sat across the table from the people his framework would touch, and who has not thought carefully about the issues he claims to solve. That is not a partisan judgment. It is a professional one.

The acronym is doing the work the policy cannot

There is one more thing worth naming, because it is the most honest part of the proposal.

The registry is called SAFE. Safe for whom? Not for the people registering, who assume all of the risk and receive none of the protection. The name is aimed at the anxious voter, the one who wants to feel that someone is keeping track, that order is being restored, that the situation is handled.

That is the double duty of the branding. The word “safe” reassures the audience the proposal is actually written for, while the mechanism it describes makes the people inside it less safe. When the most carefully engineered element of an immigration plan is its acronym, you are not looking at policy. You are looking at positioning.

For the lawyers

The statutory and documentary landscape, for readers who want the hooks:

• Registration duty: INA § 262, 8 U.S.C. § 1302 (registration for noncitizens present 30 days or more); INA § 265, 8 U.S.C. § 1305 (change of address within 10 days); 8 U.S.C. § 1304(e) (carry requirement).

• Penalties: 8 U.S.C. § 1306(a) (willful failure to register: misdemeanor); § 1306(b) (address violations, with deportability consequences).

• Current implementation: DHS interim final rule establishing Form G-325R and the USCIS online registration process, effective April 2025, promulgated without notice and comment and litigated shortly after.

• NSEERS: special registration implemented by regulation at 8 C.F.R. § 264.1(f), delisted in 2011, regulatory structure removed in December 2016.

• TPS: INA § 244, 8 U.S.C. § 1254a. Designation is country-based and Secretary-initiated. There is no mechanism for conferring TPS on individuals as a class of registrants.

• Enforcement infrastructure: ImmigrationOS and ELITE were developed under modifications to Palantir’s long-running ICE delivery order (70CTD022FR0000170). The ELITE user guide and the Oregon fugitive-operations deposition describing its field use were obtained and reported by 404 Media in January 2026.

The through line: registration authority already exists and already carries criminal exposure; confidentiality would require statutory protections that neither history nor current data architecture supports; and the benefits promised in one version of this proposal are ones the cited instruments cannot deliver.

The bottom line

A proposal that duplicates existing law, promises confidentiality that both history and ICE’s own targeting infrastructure contradict, offers registrants nothing, changes its terms between platforms, and misstates how TPS works is not a serious contribution to immigration reform. It is a signal sent to voters, wrapped in an acronym, at the expense of people who are already afraid to answer the door, in a week when the cost of being near the wrong list was paid twice.

Northeast Wisconsin’s immigrant communities deserve candidates who understand the system before proposing to expand its reach. So does everyone else.

Wisconsin will hold its primary election on August 11th, where this candidate is seeking the Democratic nomination for Congress in Wisconsin’s 8th Congressional District, and is running against Ret. Lt. Colonel Rick Crosson and Katrina DeVille. The winner on August 11th will seek to unseat “Trump-Endorsed” Tony Wied.

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What Happened

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.”

The accompanying

press release goes further than the memo itself. It tells the public:

From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.

That sentence is doing a lot of work. It is also not what the underlying statute says, not what the regulations say, and not what the memo itself, read carefully, actually authorizes.

This post walks through the gap between the press release and the law, and what that gap means in practice.

TL:DR

The press release overshoots the memo. The memo does not eliminate adjustment of status. It does not rewrite eligibility rules. It tells officers to weigh discretion more heavily against applicants and to treat the existence of consular processing as itself an adverse factor.

1. The framing is legally vulnerable. Treating adjustment as a near-presumptive denial conflicts with the statute (INA § 245(a)), with binding regulations (8 CFR Part 245), with the USCIS Policy Manual, and with decades of case-by-case adjudication practice.

2. A real change of this scope requires notice-and-comment rulemaking under the Administrative Procedure Act. A policy memo cannot do it.

3. For people with pending I-485s, do not leave the country. Departure without advance parole is regulatory abandonment of the application, and the press release inviting applicants to “return to their home country” is, for most pending applicants, a direct invitation to lose their case.

4. Dual-intent visa holders and long-resident nonimmigrants are squarely in the crosshairs of how this memo will be applied, even though they are exactly the group Congress designed the adjustment for.

Section 1: What the Memo Actually Says (and Doesn’t Say)

The memo’s stated purpose is to “remind” officers that adjustment of status is “a matter of discretion and administrative grace” and an “extraordinary” form of relief. It cites Matter of Blas, 15 I&N Dec. 626 (BIA 1974), and a string of Supreme Court and circuit court decisions for the proposition that adjustment is a matter of grace, not entitlement.

That part is not new. It has been the law since the 1970s.

What is new is the framing the memo bolts on top of that doctrine:

• Adjustment exists to let applicants “dispense with” the ordinary consular process.

• Nonimmigrant admission and parole come with an expectation of departure.

• A nonimmigrant’s attempt to adjust status, instead of leaving and consular processing, is itself “a contravention of Congressional expectations” and an “adverse factor.”

• Absence of negatives is not enough. Applicants must show “unusual or even outstanding equities.”

In plain language: the memo instructs officers to start the discretionary analysis from a presumption that adjustment is disfavored, and that the applicant’s choice to file in the U.S. rather than depart and consular process is itself a reason to deny.

That is a substantive change in how discretion is exercised, even though the memo is careful never to say so directly.

What the memo does NOT do

• It does not change eligibility under INA § 245(a) or § 245(c).

• It does not say adjustment is unavailable for any specific category.

• It does not eliminate dual intent for H-1B, L-1, O-1, or other dual-intent classifications.

• It does not change the regulations at 8 CFR Part 245.

• It does not, on its face, override the USCIS Policy Manual.

• It explicitly states it “may not be relied upon to create any right or benefit, substantive or procedural, enforceable under law.”

That last point cuts both ways. The agency is saying the memo binds no one — but it is being used as cover for press messaging that very clearly tells the public the rules have changed.

Section 2: Practical Guidance by Group

If you have a pending I-485

Do not leave the United States without advance parole. This is the most urgent point in the entire post.

Under 8 CFR § 245.2(a)(4)(ii)(A), the departure of an adjustment applicant who is not in removal proceedings is “deemed an abandonment of the application.” Departure without an Advance Parole document, or for H-1/H-4 and L-1/L-2 holders without a maintained valid status under the limited exception at 8 CFR § 245.2(a)(4)(ii)(C), terminates the pending application.

The press release tells you to “return to your home country.” The regulation says doing that ends your case. Both cannot be right.

Consult with your immigration attorney before you take next steps.

Other practical points:

• Keep maintaining your underlying status if you have one.

• Continue to comply with employment authorization conditions if you are working on a pending I-485 EAD.

• Document equities aggressively now that include family ties, employment, community involvement, tax compliance, length of residence, and any factors that would qualify as “unusual or outstanding.”

• Anticipate longer adjudications and more Requests for Evidence focused on discretionary factors.

If you are considering filing AOS now

The eligibility rules have not changed. INA § 245(a) still allows adjustment for applicants who were inspected and admitted or paroled, are admissible, and have an immediately available immigrant visa. INA § 245(c) bars still apply, and the existing exceptions (immediate relatives, § 245(i), § 245(k) for employment-based, VAWA, etc.) still apply.

Before filing, weigh three questions:

1. Are you in a strong discretionary posture? Long-standing presence, family ties to U.S. citizens or LPRs, clean record, consistent status maintenance, tax compliance.

2. Is consular processing actually a worse option in your situation? For some applicants, particularly those with potential inadmissibility issues that would trigger 3- or 10-year bars upon departure, or those with complex travel histories, adjustment remains the only safe path.

3. Can you wait for the inevitable litigation to play out? Filing now means being adjudicated under this memo’s framing. Some applicants may have flexibility on timing.

If you are an H-1B, L-1, or other dual-intent holder

The memo includes a critical concession buried in the analysis:

“USCIS reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.”

It then adds the limiting principle:

“However, maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.”

In plain language: dual intent still protects you from being treated as having lied about your intent. But the memo signals that officers should not automatically grant discretionary credit to a dual-intent nonimmigrant who follows the rules.

For H-1B and L-1 workers with pending or contemplated I-485s, this means:

• The pathway is intact.

• The discretionary analysis just got harder.

• Documenting equities such as U.S. citizen or LPR family members, length of contribution, employer support, and community ties matters more than ever.

If you are an employment-based AOS applicant

INA § 245(k), the provision that forgives certain status and unauthorized employment violations for employment-based applicants, is statutory. A policy memo cannot override it.

But the memo’s framing creates pressure on the discretionary side of EB adjudications. Expect:

• More scrutiny of any gaps in status, even forgiven ones.

• More questions about the timing of filing.

• Discretionary denials in cases that would previously have been routine approvals.

If you are a student (F-1) who has been in the U.S. for years

This is one of the groups most exposed by the memo’s logic. F-1 is not a dual-intent classification. Years of presence on a nonimmigrant visa, followed by an adjustment filing through marriage to a U.S. citizen or an employer-based path, is exactly the fact pattern the memo characterizes as “contravention” of congressional expectations.

If you are in this group, the eligibility framework has not changed, but you should expect officers to weigh your long F-1 history against you as an alleged signal of “intent to remain.” Documentation of your good-faith student status throughout your years here will matter.

Section 3: The Legal Problems With This Memo

This is where the gap between the press release and the law becomes a litigation roadmap. The memo’s framing collides with at least four bodies of authority.

1. The statute (INA § 245(a))

Section 245(a) of the INA reads, in relevant part, that the status of an alien “may be adjusted by the Attorney General [now the Secretary of Homeland Security], in his discretion and under such regulations as he may prescribe.”

Congress created this pathway deliberately. It expanded it through §245(i), §245(k), VAWA, and the trafficking and crime victim provisions of §245(l) and §245(m). The statute does not characterize adjustment as a deviation from a default consular process. It treats it as a parallel pathway for people physically present in the United States.

The memo’s repeated framing of adjustment as something that “permits the alien applicant to avoid the prescribed, ordinary consular visa process” is editorial. The statute prescribes both processes. Neither is more “ordinary” than the other in the statutory text.

2. The regulations (8 CFR Part 245)

This is the strongest legal problem with the press release messaging.

8 CFR §245.2 governs the application process and explicitly contemplates pending applications, including:

• Departure of an applicant not in removal proceedings is abandonment unless the applicant has advance parole (§ 245.2(a)(4)(ii)(A))

• A limited exception for H-1/H-4 and L-1/L-2 nonimmigrants who maintain valid status (§ 245.2(a)(4)(ii)(C))

• Procedures for renewal of denied applications in removal proceedings

• Treatment of unauthorized employment during pendency under § 274a.12(c)(9)

These regulations were promulgated through notice-and-comment rulemaking. They establish the framework for pending applications. The press release’s “return to your home country” message conflicts directly with the abandonment rule telling applicants to do precisely what the regulation says will terminate their cases.

A policy memo cannot override duly promulgated regulations. Under United States v. Nixon, 418 U.S. 683 (1974), and a long line of administrative law, an agency must follow its own regulations until it changes them through proper procedure.

3. The USCIS Policy Manual

The memo cites the USCIS Policy Manual, Volume 7, Part A, Chapter 10 (”Legal Analysis and Use of Discretion”) as the existing guidance officers are to consider. That chapter, which has not been formally amended by this memo, directs adjudicators to:

• Weigh positive and negative factors in totality.

• Treat positive factors (family ties, length of residence, employment history, community ties, tax compliance, hardship) as substantively meaningful.

• Apply Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996), as a balancing standard, not a thumb on the scale.

The memo grafts a new framing on top of this Policy Manual chapter without rewriting it. Adjudicators are now told to read the Policy Manual through a lens that treats the act of filing AOS itself as adverse. That is internally inconsistent guidance, and it sets up appellate challenges in every denied case.

4. The Administrative Procedure Act

This is the doctrinal heart of the legal vulnerability.

The APA, at 5 U.S.C. § 553, requires notice-and-comment rulemaking for substantive rules. The exception for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” is narrow.

Under the D.C. Circuit’s framework, an agency action requires notice-and-comment if it (1) alters the rights or interests of parties, (2) makes a substantive change to the regulatory regime, and (3) has present binding effect. See Electronic Privacy Information Center v. U.S. Department of Homeland Security, 653 F.3d 1 (D.C. Cir. 2011).

This memo, paired with its public messaging, looks like it satisfies all three:

• Alters rights or interests: Applicants who would previously have received favorable discretion in routine cases will now face heightened scrutiny and likely denial.

• Substantive change: Treating the filing of AOS itself as an adverse discretionary factor is a substantive shift from the Mendez-Moralez totality-of-the-circumstances framework.

• Present binding effect: The memo directs officers to apply this framing. The press release tells the public the rules have changed.

The agency’s standard disclaimer language, that the memo “may not be relied upon to create any right or benefit”, does not insulate it from APA challenge. The D.C. Circuit has repeatedly rejected the argument that agency self-labeling controls. What matters is whether the agency action functions as a substantive rule.

If the agency wants to fundamentally restructure adjustment of status discretion, it has to do so by notice-and-comment rulemaking, with all the procedural protections that entails including public comment, reasoned response, and a final rule subject to APA review.

Section 4: What to Watch For

A few signals will tell us how this plays out:

1. Denial rates. If routine I-485 denials spike, particularly for dual-intent nonimmigrants and long-resident applicants, that is evidence the memo is operating as a substantive rule.

2. Denial notice language. The memo requires officers to articulate the positive and negative factors in any discretionary denial. Sampling those notices will reveal whether officers are treating “the choice to file AOS” itself as a negative factor.

3. Litigation. Expect challenges from AILA, the ACLU, state attorneys general, and individual applicants. Watch for APA notice-and-comment challenges, regulatory conflict claims, and as-applied challenges in individual cases.

4. Subcategory guidance. The memo signals that USCIS “may provide policy guidance specific to certain adjustment of status categories or discrete populations.” That is the agency telegraphing that more memos will come, targeted at specific groups. Each one will be its own legal flashpoint.

5. The Policy Manual. If USCIS amends Volume 7, Part A, Chapter 10 to formally incorporate this framing, the legal posture shifts. Until then, the memo is sitting on top of unchanged regulations and unchanged Policy Manual guidance.

Section 5: The Pattern

This memo fits a recognizable pattern: an agency uses guidance documents to do what it would have to do by rulemaking, then relies on the friction of litigation, the cost of challenge, and the chilling effect on applicants to achieve the policy outcome regardless of legality.

The chilling effect is the point. If applicants believe adjustment has become a near-presumptive denial, fewer will file. If pending applicants believe they should “return home,” some will leave and abandon their cases. The policy goal is achieved by deterrence, not adjudication.

The statute has not changed. The regulations have not changed. The Policy Manual has not changed. The case law cited in the memo, Blas, Mendez-Moralez, Patel v. Garland — has not changed.

What has changed is the messaging, and the framing officers are told to apply when exercising discretion. That is a substantive shift dressed in interpretive clothing.

It will be tested in court. In the meantime, the people most affected are those with the least margin for error: pending applicants, long-resident nonimmigrants, and dual-intent workers whose lives are built around the legal framework in place yesterday.

Read the Policy Memo (PM-602-0199)

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Because these claims are circulating widely within transgender communities and immigrant advocacy networks, it is important to examine what the rule actually does and what it does not do.

Many transgender immigrants are understandably deeply concerned about immigration policy changes affecting identity documentation, particularly given recent federal actions affecting gender markers in government records. That context makes careful analysis especially important.

This rapid analysis examines the regulation's text, the broader policy environment, and what the rule realistically means for Diversity Visa applicants.

What Actually Happened

On March 11, 2026, the Department of State published a final rule updating regulations governing the Diversity Immigrant Visa (DV) Program1

The rule takes effect April 10, 2026, and will first apply to the DV-2027 lottery cycle, not to individuals currently applying under earlier program years.

The regulation is primarily designed to strengthen identity verification in the Diversity Visa lottery process and reduce fraudulent entries.

The most significant procedural change is that applicants entering the Diversity Visa lottery must now:

• Provide valid passport information

• Upload a scan of the passport biographic page when submitting a lottery entry

The State Department alleges the change responds to widespread fraud in the DV program, including large numbers of entries submitted by third parties or automated systems without applicants’ knowledge.

The concern surrounding this rule reflects the constant political and legal attacks transgender communities are currently facing, and that concern is understandable. But in immigration law, effective advocacy depends on distinguishing real legal risk from procedural changes that may appear more significant than they are. Careful analysis helps ensure that attention and energy are focused where they can make the greatest difference.

What the Rule Literally Says

The regulation makes several procedural updates to the Diversity Visa program requirements.

Passport verification requirement

Applicants entering the lottery must provide passport details and upload a scan of the passport’s biographic page unless they qualify for a narrow exemption.

The purpose is to ensure that lottery entries correspond to verifiable identity documents.

Terminology updates

The rule replaces certain terminology in the DV regulations:

• “gender” is replaced with “sex”

• “age” is replaced with “date of birth.”

The State Department explains that these changes align the regulatory language with terminology used in immigration processing systems.

Clarification of procedural instructions

The regulation also standardizes the language used in instructions to consular officers reviewing Diversity Visa cases.

Why Transgender Communities Are Rightfully Concerned

The concern circulating online is not occurring in isolation. Recent federal policy changes have affected how gender markers appear in federal identification documents, including passports and immigration records.

For many transgender individuals, identity documents may contain different gender markers due to:

• Changes in gender identity documentation

• Differing legal standards across countries

• Prior immigration filings using earlier documents

• Inconsistent recognition of gender identity across government systems

Because of this context, any immigration regulation replacing the word “gender” with “sex” can trigger concern among transgender communities.

Some online commentary has suggested that this rule could create new risks of immigration fraud if identity documents do not match.

However, that interpretation does not reflect what the regulation actually changes.

Myth vs. Reality

Myth: The Diversity Visa rule allows the government to accuse transgender applicants of fraud if their documents contain different gender markers.

Reality: The regulation does not create new fraud or misrepresentation standards.

Under U.S. immigration law, fraud or misrepresentation generally requires:

• a false statement

• intent to mislead

• and a material effect on the immigration benefit sought.

Differences between identity documents do not, in and of themselves, constitute fraud. The DV rule focuses on identity verification during lottery entry, not on creating new fraud enforcement mechanisms.

What This Rule Actually Changes for Transgender Applicants

For transgender individuals considering the Diversity Visa program, the rule introduces one primary procedural change: a requirement to provide a digital scan of the passport’s biographic page.

The rule does not create a separate fraud standard targeting transgender applicants.

However, transgender applicants, like many immigrants, may encounter situations where identity documents differ, such as passport gender marker, birth certificate, national identity records, or prior visa applications

Differences between documents are not unusual in immigration cases and typically require explanation rather than creating automatic fraud findings.

Where Real Documentation Issues May Arise

While the DV rule itself does not create new fraud standards, practical documentation issues can arise whenever identity documents do not match.

This occurs in immigration cases for many reasons, including:

• name changes

• updated identity documents

• differing national record systems

• historical immigration filings using older documentation

In practice, immigration adjudicators generally evaluate these discrepancies based on context and documentation, rather than through automatic fraud determinations.

For transgender applicants, the most important issue remains consistency and documentation across immigration filings whenever possible.

Could This Lead to Loss of Green Cards or Citizenship Later?

Some online commentary suggests the rule could expose immigrants to fraud accusations years later, potentially leading to loss of permanent residence or even denaturalization. This concern appears to stem from a misunderstanding of how immigration law treats fraud findings.

Loss of permanent residence

Lawful permanent residence can be challenged if the government proves that permanent residence was obtained through fraud or material misrepresentation.

However, the Diversity Visa regulation itself does not create new retroactive enforcement authority. It primarily changes lottery entry procedures, not the legal standards governing immigration fraud.

Denaturalization

Denaturalization is even more limited. To revoke citizenship, the government must generally prove that naturalization was obtained through:

• material misrepresentation

• or concealment of a material fact

and must meet a very high evidentiary standard in federal court. Denaturalization cases are relatively rare and typically involve clear fraud, such as concealed criminal history, use of false identities, and undisclosed immigration violations

The Diversity Visa rule does not create new grounds for denaturalization.

Practical reality

Immigration benefits are always subject to review if they were obtained through fraud. But this rule does not change that principle and does not create a new category of retroactive immigration violations.

What Transgender DV Applicants Should Keep in Mind

For transgender individuals considering participation in the Diversity Visa lottery:

1. Ensure you have a valid passport before entering the lottery

2. Use identity information that matches your current passport whenever possible

3. Keep copies of prior documents in case explanations are needed later

4. If documentation differs, this typically requires clarification rather than creating automatic fraud findings

Applicants with complex documentation histories may benefit from consulting an immigration attorney before proceeding with later visa processing stages.

What We Still Don’t Know

As with many immigration policy changes, the most important question will be how the rule is implemented in practice.

Issues to watch include:

1. How strictly passport verification is enforced in the DV-2027 cycle

2. How Consular Officers Interpret Documentation Discrepancies

3. Whether similar terminology changes appear in other immigration regulations

Monitoring implementation will provide clearer insight into how the rule operates in real cases.

Why Careful Analysis Matters

Immigration policy changes often spread quickly online, especially when they intersect with communities already facing uncertainty about government policies.

But interpreting immigration regulations requires looking at the actual legal text and the legal standards that govern immigration decisions, not just viral interpretations.

For immigration lawyers, journalists, and advocates covering this issue, the key distinction is between procedural changes in the DV lottery system and broader immigration enforcement authorities.

Understanding that distinction helps prevent misinformation from spreading while still acknowledging legitimate concerns about evolving federal policies affecting identity documentation.

Bottom Line

The new Diversity Visa rule does not create a new fraud standard targeting transgender applicants, and differences between identity documents do not automatically constitute immigration fraud.

At the same time, broader federal policy changes affecting gender markers on identification documents may mean documentation issues remain a concern for some applicants.

Immigration Docket will continue monitoring developments and practitioner signals as the DV-2027 cycle approaches.

On December 10, 2025, the Trump administration unveiled an new immigration mechanism: the Trump Gold Card Program, introduced under Executive Order 14351 earlier this year. The program allows foreign nationals to bypass the traditional evidentiary requirements of the EB-1A and EB-2 National Interest Waiver (NIW) categories by making a substantial financial “gift” to the U.S. government.

What is currently a process bogged down by burdensome Requests for Evidence (RFEs) and unpredictable final merits denials for many extraordinarily qualified foreign nationals may now be fast-tracked—not with more evidence, but with more money.

What Is the Trump Gold Card Program?

The Trump Gold Card is not a new immigrant visa category. It is a new petition pathway via two existing ones:

• EB-1A (Extraordinary Ability – INA §203(b)(1)(A)), and

• EB-2 NIW (National Interest Waiver – INA §203(b)(2)(B))

Applicants use a new form, I-140G, to file their petition without submitting evidence of merit or field acclaim, as required under the normal EB-1A or NIW standards. Instead, petitioners:

• Select one of the two classifications (EB-1A or EB-2 NIW),

• Submit Form I-140G electronically,

• Pay a non-refundable $15,000 filing fee, and

• Make an unrestricted gift to the U.S. Department of Commerce:

  • $1 million for self-petitioners

  • $2 million if filed by a sponsoring corporation or entity

What Does the Applicant Need to Prove?

TL;DR – Nothing. The instructions claim a rigorous background check will be conducted. However, we have repeatedly seen this administration prioritize money over security. Expect “ability for the cash to clear the bank” to be the only requirement.

Notwithstanding what we expect to be the practice, there are two eligibility requirements stated in the official Form I-140G and its instructions:

• That the funds used for the gift were obtained lawfully, and

• That the beneficiary is admissible for permanent residency under existing INA provisions when the time comes to adjust status or pursue consular processing.

There is no requirement that the petitioner:

• Submit evidence of extraordinary ability (for EB-1A),

• Satisfy the three-prong Dhanasar framework (for NIW),

• Submit publications, letters of recommendation, media, judging history, or comparable evidence or anything else required of the typical applicant for the EB-1A or EB-2 NIW classifications.

Even for EB-2 NIW cases, the only technical requirement is submission of an uncertified ETA-9089 (PERM form)—a procedural placeholder rather than a labor certification or evidentiary hurdle. It remains unclear whether this is a genuine requirement or an error in the form instructions, given the absence of evidentiary requirements for the employment-based visa classification.

The Gold Card program ultimately replaces evidentiary merit with financial contribution. It monetizes access to the I-140 approval process while retaining standard adjustment eligibility rules.

What Happens After I-140G Approval?

Approval of a Gold Card petition does not allegedly guarantee a green card. The beneficiary must still:

• Wait for a current priority date (as listed in the Department of State’s Visa Bulletin),

• Be eligible to adjust status (in the U.S.) or complete consular processing abroad,

• Demonstrate they are not inadmissible under INA §212 (e.g., no grounds of fraud, criminal bars, public charge, etc.).

Applicants from retrogressed countries (e.g., India or China under EB-2) will still experience delays due to visa availability, unless the allocation of visa numbers is changed.

Is This Legal Without Congress?

That question is likely to be tested. The program walks a fine line between executive discretion and overreach.

The administration will likely argue this is legal because:

• The INA gives the executive branch discretion over immigration petition procedures.

• No new visa categories are created; it simply alters how a person can petition for a preexisting classification.

• The gift is not a “fee” or “payment for benefit” under existing regulations.

• The President claims to have unlimited authority in all actions and things he deems to be legal.

Reasons this new visa scheme may not be legal:

• The lack of evidentiary review raises due process and equal protection concerns—particularly for otherwise qualified individuals without the means to pay.

• Conditioning access to immigration benefits on a financial donation may violate the Appropriations Clause or raise anti-corruption concerns.

• Courts may find this an ultra vires executive action, particularly post-Loper Bright (which curtailed Chevron deference).

• The program runs contrary to congressional intent when creating these pathways for individuals of extraordinary ability and whose contributions are in the national Interest.

Even if facially lawful, the optics of “green cards for sale” may invite congressional hearings, litigation, or agency challenges.

Does It Undermine the Meaning of Merit-Based Immigration?

For years, highly qualified individuals, including scientists, artists, engineers, and policy experts, have seen their EB-1A and NIW petitions denied not because they lacked merit, but because of inconsistent adjudications, AI-driven RFEs, or shifting internal guidance. The Gold Card offers a path free of those barriers.

Yet, by eliminating merit-based review, the program effectively turns extraordinary ability into extraordinary liquidity.

The system no longer assesses whether you’re at the top of your field or of importance to the U.S. as a nation.

It only asks: Can you afford to donate a million dollars?

Final Thoughts

The Trump Gold Card could reshape how elite global talent (and wealth) interact with U.S. immigration. It offers a fast track to approval, but not necessarily to a green card, without the evidentiary battles that have come to define EB-1A and NIW adjudication.

This is a grift that undermines much-needed top talent for the United States. This does not make America great. It diminishes the United States’ ability to compete globally for STEM and other top talent. Truly qualified top talent must fight hard with the government for these approvals, then wait for the paltry number of visas to become available to complete their path. These are people who have spent years studying in the United States, advancing critical technologies and research, building exceptional companies, and becoming top experts in fields where the U.S. has a shortage of advanced skills.

Now, instead, an extraordinary wallet means more than extraordinary talents.

Whether this is a temporary relief mechanism, a constitutional time bomb, or a long-term shift in how the U.S. defines merit remains to be seen. Whatever the case, it reflects a new era of immigration strategy—where procedural efficiency is no longer earned, but bought.

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