On May 21, 2026, U.S. Citizenship & Immigration Services (USCIS) issued a new Policy Memorandum, “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,” that is causing alarm among many foreign nationals in the United States who either have pending I-485 applications for adjustment of status to lawful permanent residency (green card) or will soon be filing I-485 applications with USCIS.
Do not panic (yet). While the USCIS Policy Memo suggests that it could be more difficult for foreign nationals applying for adjustment of status in the United States under Section 245(a) of the Immigration and Nationality Act (INA) to have their cases approved, the USCIS Policy Memo does not bar eligible people from applying for adjustment of status. The USCIS Policy Memo encourages its officers to carefully review I-485 applications and the foreign national’s immigration history as a significant “discretionary” factor in deciding whether the foreign national applicant merits approval of their I-485 application.
Background
Before delving into the details of the USCIS Policy Memo, let’s first a review the two primary ways that a person can obtain lawful permanent residency in the United States.
Consular Processing of Immigrant Visa – outside of the United States
For foreign nationals outside of the United States (or foreign nationals currently in the United States who plan to travel abroad to process their case), if they are the beneficiary of an approved I-130 (Family Based) or I-140 (Employment Based) immigrant visa petition; have an immigrant visa number immediately available to them; and are otherwise “admissible” (eligible) for lawful permanent residency, they can apply for their immigrant visa through the U.S. State Department’s National Visa Center (NVC) and U.S. Embassy in their home country.
This process is typically at least two separate steps. Step 1 is either a family member or employer filing an I-130/I-140 petition on behalf of the foreign national relative/employee, having the I-130/I-140 petition approved, and waiting for a visa number to become available to them. Depending on the category and country of nationality, this wait could be anywhere from 0 to 70+ years.
Once the immigrant visa is available to the foreign national, for Step 2, they submit a DS-260 application for an immigrant visa to the U.S. State Department and attend an in-person interview at the U.S. Embassy abroad. If their immigrant visa is approved and issued, the foreign national must then use the valid, unexpired immigrant visa to enter the United States and when they enter the country, they enter as a lawful permanent resident.
The immigrant visa process is not discretionary. If an applicant for immigrant visa demonstrates that they meet all eligibility requirements, the Consular Official must issue the immigrant visa.
Adjustment of Status – inside the United States
Adjustment of Status is an application (Form I-485) for lawful permanent residency filed by foreign nationals who are already physically present in the United States and will remain in the United States while the application is processed.
To be eligible for adjustment of status, the foreign national must be physically present in the United States after having been lawfully admitted or paroled into the country; be the beneficiary of an approved I-130 (Family Based) or I-140 (Employment Based) immigrant visa petition; and have an immigrant visa number immediately available to them. The foreign national must be “admissible” (eligible) for lawful permanent residency. In other words, the person must not have any serious criminal issues, prior fraud, health-related issues, or national security issues that would prevent the approval of their application.
Additionally, the foreign national must demonstrate that they merit approval of their application in the exercise of USCIS’ discretion.
What is the new USCIS Policy Memo about?
First, the USCIS Policy Memo reminds its officers that foreign nationals who are in the United States applying for adjustment of status are often also eligible to apply for their immigrant visa through the consular process abroad. USCIS suggests that if these people are eligible for consular processing of their immigrant visa, they should be consular processing abroad instead of applying for adjustment of status in the United States.
Please note that USCIS does NOT require that foreign nationals in the United States apply for their immigrant visas through consular processing abroad instead of adjustment of status in the United States. It simply reminds USCIS officers that this is an available pathway for certain foreign nationals and is a factor to be considered.
Second, the USCIS Policy Memo reminds USCIS officers of current law and associated USCIS agency guidance that has been in effect for years: that foreign nationals applying for adjustment of status in the United States should be carefully reviewed, and that USCIS officials should exercise their discretion carefully before approving I-485 applications. This is not a change in immigration law or policy; USCIS has always had the discretion to approve or deny I-485 applications for adjustment of status.
In terms of discretion, the USCIS Policy Memo reminds its officers that under existing policy, the discretionary factors that a USCIS officer should consider when reviewing a pending I-485 application include an applicant’s violations of our immigration laws and conditions of immigration status held; current or previous instances of fraud or false testimony with USCIS or other government agencies; and whether an applicant’s conduct after an admission as a nonimmigrant or parolee was inconsistent with the purpose of the nonimmigrant or parolee status in which they were admitted. The USCIS Policy Memo emphasizes that a foreign national’s failure to comply with the terms of their nonimmigrant status or failure to depart the United States on time is a highly relevant discretionary factor.
How could this memo impact my family-based adjustment of status application?
It is too early to tell how the USCIS Policy Memo will impact family-based adjustment of status applications.
The USCIS Policy Memo suggests that people who entered lawfully into the United States but let their status expire or violated the terms of their nonimmigrant visa before applying for adjustment of status could have the fact that they overstayed/violated their status considered as a strong negative factor in the exercise of discretion. It is possible that we could see a significant increase in Requests for Evidence or Notices of Intent to Deny I-485 applications for people who entered lawfully in the past but overstayed their visas. It is also possible that we won’t see much of a change in adjudication patterns at all.
Over the next weeks and months, we will see how this USCIS Policy Memo impacts pending family-based I-485 applications.
How could this memo impact my employment-based adjustment of status application?
It is also too early to tell how the USCIS Policy Memo will impact employment-based adjustment of status applications.
Since the USCIS Policy Memo highlights a violation of nonimmigrant status, which could include overstaying a nonimmigrant status or violating the terms of said status, as a negative discretionary factor, foreign national adjustment applicants in the United States on nonimmigrant statuses/visas who are eligible to continue to extend their nonimmigrant status should continue to extend their nonimmigrant status while their I-485 application is pending with USCIS.
Foreign nationals who have let their nonimmigrant status expire while their I-485 application is pending, or who are on a nonimmigrant status that does not permit “dual-intent,” could have their cases scrutinized more closely, and/or the failure to maintain status considered a negative discretionary factor.
Over the next weeks and months, we will see how this USCIS Policy Memo impacts pending employment-based I-485 applications.
What other immigration cases does the USCIS Memo impact?
None.
The USCIS Policy Memo is only about adjustment of status applications pursuant to INA § 245(a).
The Policy Memo does not impact other non-discretionary I-485 applications such as refugee/asylee adjustments, VAWA adjustments under INA § 245(m), special immigrant juvenile adjustments under INA § 245(h), or adjustments of status for victims of trafficking under NA § 245(l).
The Policy Memo does not impact other applications for immigration benefits such as Naturalization (N-400), I-751 petitions to remove conditions on residency (I-751), DACA Renewals (I-821D), petitions for nonimmigrant statuses such as H-1B, E-2, L-1, O, P, Q, R, TN (I-129), Employment Authorization Document (EAD) applications, I-589 Applications for Asylum, etc.
Bottom Line?
Only time will tell how this USCIS Policy Memo will impact how currently pending (and future) adjustment of status applications are handled by USCIS.
As always, the team at Kolko & Casey, P.C. is monitoring immigration agency trends locally and nationally and will provide updates as they are available.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Immigration law and policy change rapidly. Always consult an attorney or accredited representative for advice about your specific situation.
About the Author
Jennifer Casey is Managing Partner at Kolko & Casey, P.C. Jennifer specializes in employment based and family based immigration matters.
