In a press release issued on May 22, 2026, U.S. Citizenship and Immigration Services Will Grant ‘Adjustment of Status’ Only in Extraordinary Circumstances | USCIS, U.S. Citizenship and Immigration Services (“USCIS”) announced its intention to frame the process of Adjustment of Status to Permanent Residence, filed through an application filed from within the United States, and as “extraordinary relief” as distinguished from its alternative counterpart, Consular Processing and Immigrant Visa at a U.S. Embassy or Consulate abroad.
There are two pathways to obtain family or employment-based permanent residence during the last step of the Green Card process: either by filing an Application for an Immigrant Visa (DS-260) at a U.S. Embassy or Consulate abroad; or, when the applicant is physically present in the United States and meets certain requirements, through an Application for Adjustment of Status to Permanent Resident (I-485) at USCIS. During the Adjustment of Status process, applicants are viewed as being in a period of authorized stay in the United States and may receive interim benefits such as an open-market work authorization document and an advanced parole travel permit while awaiting final adjudication. For many years, the Adjustment of Status process has been a widely used framework relied upon in employment-based and family-based immigration, providing safety and security to eligible applicants and their families during the final step of the process to obtain permanent residence.
In a six-page policy memo, PM-602-0199-AdjustmentOfStatusAndDiscretion-20260521.pdf (“Policy Memo”) dated May 21, 2026, USCIS reminded its officers and the public that adjustment of status to permanent residence from within the United States is a matter of “discretion and administrative grace” that is “not designed to supersede the regular consular processing of immigrant visas.”
Specifically, the Policy Memo states: “Where adjustment of status is in the discretion of USCIS, officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion.” As part of its discretionary analysis, and consistent with existing guidance found in Volume 7, Part A, Chapter 10 of the USCIS Policy Manual, officers are instructed to consider a non-exhaustive list of factors under the totality of the circumstances, including family and community ties; immigration status and history; business, employment and skills; community standing and moral character; or other indicators that may bear on whether an applicant warrants a favorable exercise of discretion. Examples of adverse factors include violations of immigration laws and the conditions of any immigration status held, current or previous instances of fraud or false testimony in dealings with USCIS or any government agency, and unauthorized employment in the United States, among others.
The Policy Memo also reminds officers that “applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent.” However, in a footnote to this statement it provides: "maintaining lawful status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion." Dual intent categories include Temporary Worker (H-1B) classification and Intra Company Transferee (L-1) classification.
The Policy Memo goes on to state that USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process. USCIS also notes that the instant policy does not apply to certain adjustment of status provisions, such as refugee adjustment, that are non-discretionary – that is, if the applicant satisfies all statutory and regulatory eligibility requirements, USCIS must approve the application without considering whether the applicant warrants a favorable exercise of discretion.
For employers whose foreign national employees are pursuing employment-based Green Cards, the Policy Memo adds a new layer to the planning structure of the Green card process, and greater uncertainty due to consular resource limitations which may lengthen the process further. For individuals and families, the implications may be more dire, as they may no longer be able to depend on the adjustment of status process to provide lawful status and work authorization through completion of the process. The Policy Memo may also have broader implications for certain foreign nationals in light of recent U.S. Department of State and USCIS measures impacting the adjudication and processing of immigration benefits for individuals from designated countries.
Legal challenges are anticipated with respect to the Policy Memo. Gunster’s Immigration Practice Group will continue to monitor the implementation of the Policy Memo and any forthcoming litigation challenging it. In light of these evolving developments, foreign nationals and employers should consult with immigration counsel to evaluate case-specific considerations and the potential impact of Policy Memo in the final adjudication of adjustment of status applications.
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