USCIS Policy Memorandum Impacting Adjustment of Status Applications

By Corinne Brooks, Melina LaMorticella, Alan Perkins, and Melany Savitt

U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum on May 22, 2026: “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.” While the May 22 Memorandum signals a significant departure from decades of past policy and practices in processing green card applications, USCIS backtracked some of its assertions a week later. Currently there is no clearly articulated guidance on how USCIS will apply the May 22 Memorandum.

To put the May 22 Memorandum (which relates to options for pursuing a green card) into context, there are generally two available paths for individuals to become U.S. permanent residents:

• Pathway 1: Adjustment of Status with USCIS (I-485) for applicants physically present in the United States
  • If approved, temporary status is adjusted to permanent residence/green card issued without needing to leave the United States

• Pathway 2: Consular processing outside the United States
  • Requires an interview at a U.S. embassy or consular post abroad
  • After entering the United States on an immigrant visa, the green card is issued

May 22 Memorandum General Impact

In brief, with the May 22 Memorandum, USCIS signaled an intent to depart from decades of standard practice, to make completion of the green card process within the United States (under pathway #1, adjustment of status) more difficult and require more individuals to apply from abroad under pathway #2 (consular processing) stating “[t]he nature of adjustment of status relief remains best understood as extraordinary because it permits the alien applicant to avoid the prescribed, ordinary consular visa process to obtain lawful permanent residence without leaving the United States.” There are many impacts and considerations associated with this memorandum, many of which are client specific depending on individual case facts.

Adjustment of Status has always been a discretionary benefit. However, in practice, Adjustment of Status has been used by the vast majority of employment based permanent residence applicants over the past decades with Congressional support for the same. While Adjustment of Status is discretionary, Congress enacted laws as recently as 2000 to promote Adjustment of Status for employment-based applicants.

Discretionary Factors USCIS May Consider with More Scrutiny

Discretionary factors to be considered with more scrutiny to determine eligibility for Adjustment of Status:

• Family ties
• Immigration status/history
• Good moral character
• Other relevant factors
  • Paying taxes
  • Community contributions
  • Work history
• Violations of immigration laws
• Violations of other laws (both U.S. and abroad)
• Fraud and misrepresentation

May 29 Announcement

USCIS appeared to backtrack from some of its assertions and clarified that the May 22 Memorandum is intended as a reminder to USCIS officers to exercise discretionary authority already provided under existing law. USCIS confirmed it did not announce any new regulations or eligibility requirements. In the absence of clearly articulated guidance, questions remain about how the policy will be applied in practice.

Next Steps

For our clients that have already filed Adjustment of Status applications, we will continue to monitor cases closely and advise on collection of additional supporting evidence to provide if requested by USCIS. For clients preparing to file for Adjustment of Status, we will advise on additional supporting documentation to support the positive equities of your application based on the discretionary factors listed above. In some cases, we will analyze consular processing as an alternative.

This client alert is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact any of the attorneys in our Business Immigration Practice Group, or the attorney with whom you normally consult.