May 26, 2026
On May 21, 2026, USCIS released a policy memorandum entitled “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 memorandum states that adjustment of status is a “matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas.” Concurrently, USCIS released the following statement:
We’re returning to the original intent of the law to ensure aliens navigate our nation’s immigration system properly. 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. This policy allows our immigration system to function as the law intended instead of incentivizing loopholes. When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the U.S. illegally after being denied residency.
For clarity, adjustment of status is the process by which nonimmigrants in the United States apply for permanent residence or a green card. The memorandum and statement indicate that most noncitizens should apply for permanent residence to the United States from abroad and that adjustment of status should only be granted to those who demonstrate “extraordinary circumstances.” The memorandum cites related caselaw that appears to support this statement. However, the memorandum fails to cite other precedential case law, which confirms that adjustment of status should generally be granted as a matter of discretion. Thus, due to this and the fact that the policy violates the face and intent of the underlying adjustment of status, it is ripe for litigation. Thus, we are cautiously hopeful that it will eventually be struck down.
Notably, the memorandum was issued without advance notice and without an effective date or clarity on whether the policy applies to pending adjustment of status applications. Thus, to clients with pending adjustment of status applications, we cannot, at this time, confirm whether this policy will apply to your case. For clarity, here is what we can presently confirm about the policy:
- It directs officers to use a totality of the circumstances approach that weighs all positive and negative factors in adjudicating adjustment of status applications. This includes family ties, immigration status and history, and the applicant’s moral character.
- Officers are further directed to review and consider the following:
- Prior violations of U.S. immigration laws
- Conditions relative to any nonimmigrant status or parole held
- Current or prior instances of fraud or false testimony in dealings with USCIS or any government agency
- Whether an applicant’s admission or parole into the United States violated the laws, regulations, and/or policies in place at the time
- Any conduct of the applicant inconsistent with the purpose of their nonimmigrant status or parole or with representations made to consular or DHS officers
- “Highly relevant” factors to the analysis include an applicant’s failure to comply with the conditions of their nonimmigrant status or parole, failure to depart as expected, and any underlying intention to reside permanently in the United States.
- It suggests that failure to maintain a valid nonimmigrant status throughout the pendency of the adjustment of status application is a negative factor
- It implies that applicants in a dual intent status such as H or L should be viewed more favorably
In light of this policy and the uncertainty relative to its application, we advise clients to do the following:
- For those with pending or prospective adjustment of status applications, collect documentation to confirm positive factors such as:
- Family members and employment in the United States. This might include securing statements from family members and/or employment contracts and/or letters of reference from employers
- Community service or other volunteer activities
- Ownership of U.S. property
- Evidence of U.S. investments
For the time being, clients should maintain this documentation in their possession.
- For those with approved petitions (I-130, I-140, I-526, I-526E) selecting adjustment of status, consider filing Form I-824 to initiate consular processing as an option. In particular, this may be important for those who entered the United States in a status such as B or F and/or were paroled in.
In general:
- For those with pending adjustment of status applications, we are NOT currently advising withdrawal of the applications.
- This policy should NOT be interpreted as a bar to adjustment of status. In particular, for those in dual intent statuses such as H and L with positive factors such as employment and other ties to the United States, adjustment of status may still continue to be a viable option.
As and when new information about the policy becomes available, we will update this memorandum and guidance.
