On May 22, 2026 USCIS published a memo 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” calling adjustment of status an extraordinary relief and consular processing is the primary way to process immigration to the United States.
In plain language the memo suggests all applicants for permanent residence must seek consular processing and not through adjustment of status as originally intended by the law makers. Green card applicants may seek adjustment of status only in extra ordinary circumstances based on USCIS officer’s discretion. What are those extraordinary circumstances is to be decided by the USCIS officers who will then consider several positive and negative factors and their overall effect in deciding if adjustment of status should be approved. The memo gives a few examples of the favorable and unfavorable factors but the list could be indefinite depending upon individual case facts. The memo raises concerns for adjustment applicants who have experienced status violations, lengthy visa backlogs or difficulty maintaining non-immigrant status while waiting for green card decision.
Nationwide, the memo has stirred up concerns among the foreign nationals awaiting decision on pending adjustment of status applications or contemplating filing one, and among the immigration lawyers who are pondering over the legality of this memo because it does away with the established government policy and dilutes the Immigration & Naturalization Act (the “Act”) provisions allowing ‘Adjustment of Status’ (processing lawful permanent residence while staying in the United States) for many immigrant categories. It must be noted that the “Act” treats “adjustment of status” on equal footing with “Consular Processing of immigrant visa” (processing lawful permanent residence staying outside the U.S.) but the memo suggests otherwise.
What does the Adjustment Memo Say?
The agency memo explains a policy shift and that it is in line with the congressional intent that disfavored adjustment of status and indicates consular processing is the primary way to obtain immigrant visa. The memo does not identify a specific statutory provision supporting its characterization of Congressional preference for consular processing as a pathway to permanent residence.
In fact, Immigration & Nationality Act (“Act”) specifically creates pathways to Lawful Permanent Residence by way of “adjustment of status” and defines specific eligibility criteria when applicants could seek adjustment and lists specific circumstances. Statutory provisions governing “adjustment of status” were expanded over time, suggesting that Congress intended “adjustment of status” to remain an important pathway to permanent residence.
It is unclear as to who all are subject to this memo and it is possible that its application could be expanded to more immigrant categories than those mentioned in the memo. More specifically the memo applies to adjustments under section 245 (a) of the “Act” which includes employment based permanent residence applicants, immediate relatives (parents and minor children of U.S. citizens) under family-based immigration categories, fiancé(e), VAWA, and special immigrants among others but since the memo regulates exercise of discretion it remains to be seen if asylees and U visa adjustment applicants would also be covered.
The memo states that “adjustment of status” is an extraordinary relief and agency grant of adjustment is an act of “administrative grace.” This language was used by Supreme Court in Patel v. Garland (2022) in the removal context. Any relief from removal is an act of grace. Unfortunately, the agency memo subjects all adjustment applicants to seek agency grace, even those not facing removal proceedings.
Higher Discretionary Review
The agency memo raises the level of discretionary review and suggests USCIS officers should decide whether the adjustment applicant has demonstrated circumstances warranting favorable exercise of discretion. It directs them to consider positive and negative factors in deciding whether the adjustment applicant deserved grant of discretion as a matter of grace. It then lists out negative factors and positive factors.
Status Violations and Other Highly Relevant Negative Factors
The memo notes positive and negative factors include family ties in the United States, immigration status and immigration history, applicant’s moral character, and any other relevant factor. It notes the current USCIS policy manual includes list of factors e.g.: violations of immigration laws or condition of non-immigrant status, fraud or false or inconsistent testimony to an immigration officer to obtain visa, admission or parole etc. which must be considered in the totality of circumstances, meaning all factors must be considered together. Memo also refers to the current policy manual that the adjudicating officer must consider all factors, be consistent and not be biased.
However, contrary to the existing policy manual the current memo seems to suggest that absence of negative factors would be insufficient for approval unless the applicant also demonstrates existence of positive factors. Individual’s circumstances determine what factors could be considered in the adjudication while adjustment of status has always been a discretionary benefit for many immigrant categories.
However, more disturbing is that the memo adds, “failure to comply with conditions of visa or parole” and “failure to depart” as highly relevant negative factors mandating, meaning the agency discretion would accord special negative consideration against visa or parole overstays. This part of the memo is difficult to reconcile with statutory provisions that expressly forgives certain violations by immediate relatives under family-based immigration, VAWA applicants and certain non-immigrants. The “Act” condones visa, or parole overstays in the case of immediate relatives and VAWA applicants for adjustment, and in the case of employment-based permanent resident adjustments, the “Act” expressly condones 180 days of being out of status under section 245(k) waiver, but the memo treats these instances as a highly relevant negative factor.
Impact on Employment-based Applicants
In the case of non-immigrant visas with dual intent which is H-1B, O-1 and L status holders, although the memo mentions that seeking adjustment is consistent with maintaining such non-immigrant status, it falls short of clearing the field for H-1B, O-1 and L workers who have long processing times. These adjustment applicants are also required to seek favorable discretion and should maintain their non-immigrant status while their I-485 remains pending. Questions may arise on how USCIS will interpret periods during which an applicant solely relies on adjustment-based employment authorization after the underlying non-immigrant status has lapsed in view of highly relevant negative factors “violating conditions of status” and “failure to depart upon lapse of status” even under the totality of circumstances allowing consideration of all other factors. A careful consideration and presentation of all favorable factors is advisable here.
Agency shift in policy may create additional uncertainty for adjustment applicants particularly in the employment-based permanent residence categories facing lengthy visa bulletin backlogs and extended USCIS processing delays. Visa bulletin retrogression and unavailability of immigrant visa often make it difficult for applicants and their dependent children to maintain non-immigrant status while awaiting adjudication of adjustment application. EB-2 and EB-3 category applicants have already waited years for immigrant visa availability. During the prolonged delays, some dependent children age out of eligibility under their parent’s permanent residence application and are forced to find independent pathways to immigration or depart United States after spending much of their lives here, resulting in family separation. U.S. employers may choose to continue to extend non-immigrant status of eligible employees. Some of these circumstances could be shown as positive factor. It remains to be seen whether USCIS requires maintenance of status throughout the length of the adjustment process.
Impact on F-1 and TN and Other Adjustment Applicants
Additional concerns arise for adjustment applicants who previously held F-1, TN status as well as DACA recipients who re-entered on parole and subsequently became eligible to adjust. Many of these applicants may have difficulty continuing to maintain their underlying non-immigrant status throughout the lengthy adjustment process because of the “single intent” doctrine in the case of F-1, and TN category. They may therefore be particularly affected by the policy changes that places heightened emphasis on maintaining lawful status or depart upon lapse of status. To the extent an applicant is unable to maintain or extend a prior non-immigrant status after having filed an adjustment application, that circumstance should be favorably considered in the discretion analysis. While these applicants may have relied upon statutory adjustment provisions in existence when seeking permanent residence, the memo creates uncertainty how USCIS officers would evaluate these factors when exercising discretion.
Potential Legal Challenges
Requiring consular processing in place of adjustment of status would further delay the process especially when Consulates are inundated with lengthy visa wait lines. Also, consular denials are non reviewable which takes away a major right to recourse.
USCIS memo invites legal challenges particularly if it is applied in a manner inconsistent with statutory provisions of the Immigration & Nationality Act.
Practical considerations for Adjustment Applicants:
- Maintain lawful status whenever possible,
- Document positive factors
- Address prior status violations honestly (truthful disclosure)
- Consult attorney before solely relying on adjustment-based employment authorization
- Monitor further developments and changes