On May 21, 2026, the USCIS issued a Policy Memorandum entitled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permit Applicants to Dispense with Ordinary Consular Visa Process”
The Memo attempts to discourage persons in the United States who want green cards from filing Applications for Adjustment of Status with USCIS. Instead, it instructs them to return to their home countries to apply for green cards at the US Embassy.
The Memo is vague about who is impacted by the new rule and how it will be implemented. It will certainly be clarified in the future. And it will be challenged in Federal Court. In my opinion, the Memo is clearly unlawful.
Here, we answer some questions about how the Memo will be applied, who will be affected and your best strategy going forward while the Memo is in place:
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Q. Does the Memo apply only to adjustment of status applications filed after May 21, 2026 or also to those whose applications are pending on that date?
A. Since the Memo does not say, we assume that it applies to both pending and future applications for adjustment of status.
Q. Are there any classes of adjustment applicants specifically exempted from the restrictions imposed by the Memo?
A. Yes, asylees, persons who entered the US through the diversity lottery, 245(i) applicants and U visa victims of crimes.
Q. Which classes of immigrants traditionally adjust status in the US?
A. Most Employment-Based immigrants and Immediate Relatives in the Family-Based categories. Together, these amount to over 50% of all immigrants to the US.
Q. What factors will the USCIS officer consider in determining whether an applicant for adjustment of status warrants a favorable exercise of discretion?
“All positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether (he/she) warrants a favorable exercise of discretion.”
Q. What are some common negative factors?
A. Visas overstays, traffic tickets, DUIs, etc.
Q. What can I do to overcome these negative factors?
A. Be proactive. When you file your I-485, submit evidence of positive factors. Volunteer activities, things you have done to aid your community, your children, your elderly parents, evidence of rehabilitation, etc. If your I-485 is pending, bring this evidence with you to your interview or submit this in response to an RFE or NOID.
Q. If my I-485 is denied, what can I do?
A. If you are NTA’d, you can reapply for adjustment of status in Immigration Court. If you remain in nonimmigrant status, you can reapply before the USCIS.
