On May 21, 2026, USCIS issued a new policy memorandum emphasizing the discretionary nature of adjustment of status. USCIS has stated that adjustment of status should be granted only as an exception in extraordinary circumstances. While the memorandum does not change the statutory eligibility requirements for adjustment of status, it signals a more restrictive approach to USCIS reviews of adjustment of status applications. As a result, green card applicants may now need to affirmatively demonstrate why they should be permitted to adjust status in the United States rather than pursue consular processing abroad.
This change affects both family-based and employment-based green card applicants. Applicants in visa categories that require nonimmigrant intent (including B-1/B-2, F-1, E-2, E-3, O-1 and TN) are likely to face greater scrutiny. Applicants in dual-intent visa categories (such as H-1B or L-1) are not exempt, however, as the memorandum makes clear that maintaining lawful dual-intent status alone is insufficient to warrant a favorable exercise of discretion.
For Individuals with Pending Adjustment of Status Applications
You should know that USCIS is already implementing this new policy and asking applicants these questions at green card interviews:
- Why did you apply for adjustment of status instead of consular processing?
- Are there any factors that prevent you from applying through consular processing?
- Why did you not return to your home country when your nonimmigrant status/authorized period of stay expired?
Regardless of where you are in the adjustment of status application process, you should be prepared to address these questions at an interview.
For Individuals Planning to File for Adjustment of Status
USCIS officers have been directed to weigh specific positive and negative factors when exercising their discretion and undertaking a totality of the circumstances analysis.
Negative factors include:
- immigration law violations or status condition violations, such as overstays or unauthorized employment
- fraud or false testimony with USCIS or any government agency
- conduct inconsistent with the purpose of admission on nonimmigrant or parole status
- failure to depart when the purpose of admission or parole was accomplished
- applying for adjustment of status where consular processing is available
- intent to circumvent the consular process
Positive factors may include:
- family ties to the United States
- long-term lawful presence
- the applicant’s good moral character
- national interest considerations, such as an applicant’s potential economic benefit to the country
Those planning to file adjustment of status applications after May 21, 2026 should carefully address any negative factors with mitigating explanations, supporting evidence, and legal arguments, while documenting all applicable positive factors.
Reach out for a consultation
Your best path to a green card should be evaluated carefully, taking into account your individual risk of a denial of adjustment of status, lengthy consular processing delays at some consulates abroad, any inadmissibility issues that could arise from departing the U.S., whether you are from a country affected by a separate visa issuance pause or a travel ban, and the limited availability of court review for consular visa refusals.
For some applicants, adjustment of status will remain the best option. All adjustment of status applicants should prepare strengthened applications that specifically address the discretionary factors and the heightened scrutiny signaled by the May 2026 USCIS memorandum.
Obtaining individualized immigration advice is now more important than ever. Schedule a consultation to discuss how this policy change may affect you.