On May 29, the New York Times reported that the DHS walked back their May 21 Policy Memorandum stating that Most Immigrants Won’t Need to Leave the US to Get Green Cards.
“This policy will have no noticeable impact on highly qualified applicants and skilled professionals who have followed the law,” DHS said in a statement to CBS News on May 30. “These aliens benefit the national interest and provide economic benefits to the United States and will continue to merit the favorable exercise of discretion.”
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. What are some common positive factors?
Common positive discretionary factors include:
| Positive factor | Examples of evidence |
|---|---|
| Close family ties in the U.S. | U.S. citizen/LPR spouse, children, parents; birth certificates; marriage certificate; proof of shared residence |
| Hardship to U.S. citizen or LPR relatives | Medical records, school records, financial documents, caregiving evidence |
| Long residence in the U.S. | Tax returns, leases, school records, employment records |
| Lawful entry or substantial compliance with immigration laws | I-94s, visas, approval notices, status maintenance documents |
| Steady employment and tax compliance | W-2s, pay stubs, tax transcripts, employer letters |
| Education, skills, or professional contribution | Degrees, licenses, certifications, publications, awards |
| Community service or good moral character evidence | Volunteer records, religious/community letters, charitable work |
| No criminal history or rehabilitation after past problems | FBI/state clearances, court dispositions, probation completion, counseling, rehabilitation records |
| Military service or family military connection | DD-214, service records, dependent documentation |
| Property, business, or economic ties | Home ownership, business ownership, investments, payroll records |
| Humanitarian factors | Medical conditions, age, disability, victimization, country conditions, dependency of relatives |
| Approved immigrant petition / visa availability / strong underlying eligibility | I-130/I-140 approval, current priority date, evidence supporting the immigrant category |
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.
