On May 21, 2026, USCIS issued a Policy Memorandum 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 Memorandum directs USCIS officers to consider Adjustment of Status (AOS) as an “extraordinary discretionary relief” and to ask AOS applicants to complete their immigrant visa processing at U.S. consulates abroad. The memorandum treats the adjustment of status process as the exception, rather than the norm on which immigrants have relied for decades. The adjustment of status (AOS) process allows nonimmigrants to obtain permanent resident status within the U.S. It is unclear whether pending AOS applications would be impacted by this Memorandum.

Adjustment of status continues to be available to most applicants, but we expect higher scrutiny and potential denials of AOS applications involving prior immigration violations, criminal history, and other negative factors. The adjustment of status provisions of the Immigration and Nationality Act of 1952 have accorded the option for foreign nationals present in the United States to file for permanent residence in the country, through adjustment of status assuming they possess no adverse factors which might disqualify them for this privilege.

For over 60 years, USCIS has continuously clarified the option as a viable one, with accommodation for individuals to benefit from delayed quota backlogs, placing them in queue for residence with the ability to work and travel in the interim. Nationals of some countries who are subject to the per-country quota backlogs in this country, experience years of delay, and the adjustment of status option gives relief and confidence that residence will be granted while the foreign national maintains legal status in the United States.

Further Information Relating to Eligibility for Adjustment of Status

The Memorandum provides significant discretion to USCIS officers and directs them to consider several factors when deciding AOS applications, including:

• Family ties
• U.S. national interest
• Criminal history
• Immigration history, maintenance of lawful status, and immigration violations.
• Moral character
• Employment and business considerations

In general, there are two routes to obtain U.S. Lawful Permanent Resident (“Green Card”) status:

1. Consular Processing.  It requires foreigners to apply for immigrant visas at U.S. consulates outside the U.S. Consular processing presents various challenges to foreigners on employment visas in the U.S., who must show nonimmigrant intent when applying to renew their employment visas, while pursuing permanent residence in parallel. Consular processing does not allow foreigners to apply for employment authorization and other benefits available to AOS applicants.
2. Adjustment of Status. It allows foreigners admitted or paroled into the U.S. in a nonimmigrant visa status to apply to become U.S. Permanent Residents within the U.S. It also allows qualified applicants to apply for certain benefits, such as employment authorization (“work permit”) and advance parole (“travel document”). The AOS process requires that an immigrant visa number is available to the applicant in his/her immigrant category at the time of filing.

The Memorandum contends that AOS decisions made by USCIS adjudicators are non-reviewable by federal courts under INA § 242(a)(2)(B). We expect judicial challenges to the Memorandum and further clarification from USCIS in the coming weeks.

If the Memorandum stands, we expect some disruption to green card applicants by forcing applicants currently in the U.S. to depart the U.S. and wait for their green cards abroad. Some of the immediate implications include:

1. Increased scrutiny and denials of Adjustment of Status Applications. We expect USCIS to increase scrutiny and to deny a significant number of AOS applications based on their discretionary authority. AOS applicants should produce additional evidence of their good moral character, maintenance of lawful nonimmigrant status, employment offer and/or business-related opportunities, and other positive evidence of eligibility for adjustment of status in the U.S.
2. Persistent Consular Processing Delays. As an increasing number of AOS applicants turn to consular processing to obtain immigrant visas, consular processing delays will persist. Since 2020, immigrant visa applicants at U.S. consulates abroad have experienced significant processing delays due to staffing shortages and other factors. As a result of the USCIS policy shift, additional applicants applying for immigrant visas abroad will certainly lead to increased processing times at U.S. consulates abroad.
3. Family Separation. Although the Memorandum acknowledges that family ties are a positive factor in adjudicating AOS applications, AOS applicants who are immediate family members of U.S. citizens with criminal history, immigration violations, or any other negative factors may have to process their immigrant visas abroad. Those AOS applicants without a valid nonimmigrant visa permitting stay in the U.S. during the consular processing aspect of the case will be forced to depart the U.S. and wait for the process to unfold overseas, significantly delaying family reunification.
4. Travel and Employment Disruptions for Nonimmigrant Workers. Foreigners currently in the U.S. on nonimmigrant visas who are required to obtain immigrant visas through consular processing will have to continue to extend their nonimmigrant visas abroad to ensure no gaps in their ability to travel to and work in the U.S. Given persistent processing delays at U.S. consulates abroad, this will mean that foreign workers and their employers will have to plan for workers to be overseas for at least 2 to 3 weeks per period to renew their work visas. Administrative processing delays at consular posts might further delay immigrant visa issuance. Currently, 75 countries are barred from issuing immigrant visas to foreign nationals, and the only option available to foreign workers adhering to their nonimmigrant visa status in the United States, is the adjustment of status option. The Policy Memorandum was silent when addressing those specific nationals in this quandary.