On May 22, 2026, U.S. Citizenship and Immigration Services (USCIS) announced a new policy memorandum, issued May 21, 2026, that addresses how officers should exercise discretion in adjustment of status (AOS) adjudications. USCIS said that it views immigrant visa processing at a U.S. consulate abroad as the default route to a green card for most people, with AOS applications filed inside the U.S. treated as a discretionary option.
What Has Changed
Historically, USCIS officers exercising discretion in adjustment cases followed longstanding agency and Board of Immigration Appeals precedent recognizing that favorable discretion ordinarily should be exercised where applicants establish eligibility and do not present significant adverse factors such as fraud, criminal conduct, or substantial immigration violations.
The new memorandum shifts this framework. It instructs officers to conduct a broader evaluation of each applicant’s immigration history. The memo does not mention any positive factors, such as compliance with immigration requirements, U.S. citizen family members, or gainful employment, and stresses that officers must consider negative factors, including any history of status violations or conduct inconsistent with the purpose of the applicant’s original nonimmigrant entry. The memorandum also signals that officers may consider why an applicant chose adjustment of status over consular processing as part of the discretionary analysis.
Overall, the new memo signals a major policy shift toward restrictive discretionary adjudication. USCIS specifically emphasized that:
- Temporary visas are intended for limited-duration stays tied to a specific purpose;
- Nonimmigrant status should not serve as a “first step” toward permanent residence;
- Consular processing abroad should become the default path for obtaining immigrant visas; and
- USCIS resources should be focused instead on other agency priorities.
The memo’s title, and the accompanying press communications, characterize adjustment of status as an “extraordinary measure” rather than the routine process it has been for most applicants—although the memorandum itself does not go that far.
Potential Impact
Potentially affected groups include:
- Employment-based adjustment applicants;
- H-1B, L-1, TN, O-1, and other temporary workers pursuing permanent residence;
- Family-based adjustment applicants;
- Self-petitioners, including EB-1 extraordinary ability and National Interest Waiver applicants;
- Dependent spouses and children; and
- Individuals relying on concurrent filing strategies.
The memorandum reiterates that pursuing adjustment of status is not inconsistent with maintaining lawful status in recognized dual intent classifications such as H-1B and L-1 categories. USCIS notes, however, that maintenance of lawful status alone does not necessarily warrant a favorable exercise of discretion in every case.
For employers, practical implications may include the need to reassess immigration strategies for sponsored employees, anticipate potential delays or increased Requests for Evidence in pending adjustment cases, and evaluate whether consular processing may be preferable for certain employees depending on their individual circumstances.
The new policy memorandum promises additional guidance on the application of the discretionary standard to specific categories of adjustment applicants. Questions regarding the scope and implementation of this policy may ultimately be addressed through future agency guidance or litigation.
