What the New USCIS Memo Says
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199, 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."
The memorandum reminds USCIS officers and the public that adjustment of status under section 245 of the Immigration and Nationality Act (INA) is granted only as a matter of discretion and "administrative grace." It is not an entitlement, even when an applicant meets every other eligibility requirement.
USCIS instructs officers to treat adjustment of status as an "extraordinary" form of relief that allows an applicant to avoid the regular consular immigrant visa process. Officers must weigh all positive and negative factors in the totality of the circumstances. The memo highlights adverse factors including violations of immigration laws, fraud or false testimony, failure to depart after a temporary admission or parole, failure to maintain lawful status, unauthorized employment, and conduct inconsistent with the purpose of the original admission. Positive factors that an applicant offers must, in the memo's words, amount to "unusual or even outstanding equities" to outweigh those negatives.
Maintaining a dual-intent nonimmigrant status (such as H-1B or L-1) is still permitted while an adjustment application is pending, but the memo states that maintaining dual-intent status is not, by itself, sufficient to warrant a favorable exercise of discretion. Certain statutorily non-discretionary categories (for example, refugee and asylee adjustment under INA § 209(a)(2), NACARA, HRIFA, and specific National Defense Authorization Act provisions) are not subject to this discretionary balancing.
Below, Attorney Demian S. Serianni answers the questions our office is hearing most often from clients about how this policy change affects pending and future green card cases.
Common Questions and Answers
1. Which visa applicants are most likely impacted by this change, and are some categories more protected than others?
The new USCIS AOS Policy Memo will greatly and negatively affect nonimmigrants who would otherwise be eligible to remain in the U.S. and adjust status, which has been the normal option and procedure for decades. Foreign national "immediate relatives" of U.S. citizens would be most affected because they would be forced to depart the U.S. and undertake a very long three step process with three different U.S. government agencies to obtain an immigrant visa abroad, resulting in long-term family separation. Nonimmigrants with temporary employment status, which sometimes is valid for multiple years, could also be affected.
2. Does this memo cancel adjustment of status, or is it still a legal way to get a green card?
Adjustment of status will still remain a legal processing option, but if USCIS strictly enforces the guidelines in the memo, then they will make it very difficult for immediate relatives, employment based nonimmigrants, foreign students, and visitors to qualify or be eligible to process green cards from within the U.S.
3. We've already filed (or are about to file) our I-485. Does this apply to us, or are pending cases grandfathered in?
Yes, pending adjustment of status applicants will have to meet the new standard of "extraordinary circumstances" in the memo and prove favorable criteria in order to be approved. If denied, then they will have to seek the lengthy multi-step process of immigrant visa processing overseas.
4. Does it matter whether we go the fiancé (K-1) route or marry first and apply for a marriage-based green card?
Foreign nationals in K-1 status in the U.S. should still be eligible for adjustment of status if they marry within 90 days of entry, because AOS is part of the normal process. If married, then their options would be to apply for a K-3 spousal visa and file for adjustment of status after entry, or simply process an immigrant visa overseas. However, the previously decades old option of adjusting status from within the U.S. after entry as a visitor will most likely no longer be viable.
5. Will this cause delays, or mean more requests for evidence and tougher interviews?
Yes, currently pending AOS cases and newly filed AOS cases could become delayed because USCIS could issue requests for evidence (RFEs) requesting explanations and evidence to support the "extraordinary circumstances" standard under the memo being used to determine if applicants will be allowed to adjust status. There are already reports that green card applicants are facing additional and unusual questions at interviews by officers who are determining AOS eligibility under the new memo.
6. What positive factors can we show to strengthen our case under the new discretionary review?
Possibly one of the best arguments for immediate relatives of U.S. citizens would be family unity, and that long term family separation would cause substantial harm, financially and emotionally. The factors listed in the memo include:
- your immigration history;
- family ties in the United States;
- moral character;
- how long you have lived here lawfully; and
- any benefit you bring to the United States through your skills, employment, or contributions to your community.
7. Can my spouse or fiancé(e) still work and travel while the green card application is pending?
Yes, as long as they have a valid EAD/work permit and advance parole travel document. However, if USCIS denies an adjustment application under the new memo, they will also eventually cancel the work permit and travel document as well.
8. Would it be safer to do consular processing abroad instead of adjusting status in the U.S.?
Yes, for most AOS applicants, until there is a "track record" of how USCIS has implemented the new memo, either favorably or unfavorably, because both legal fees and the USCIS filing fees are a substantial amount of money that could be lost, as well as valuable processing time.
9. What's the difference between adjustment of status and consular processing, and why does the memo prefer one over the other?
Adjustment of status is the process of applying for lawful permanent residence (or "green card") from within the U.S. and allows the concurrent filing of both the family petition and green card application. Applicants are authorized to lawfully remain in the U.S. during the process and can obtain an EAD/work permit and advance parole travel document for international travel. This allows for family unity instead of a lengthy separation. Immigrant visa processing at a U.S. embassy or consulate consists of three separate cases or steps that must be processed one after the other with USCIS, the National Visa Center (NVC), and the embassy or consulate. Each case or step has its own separate processing times that collectively can add up to a couple of years or more. During processing, applicants cannot live or work in the U.S. or remain in the U.S. long term while awaiting the issuance of an immigrant visa. They can visit the U.S. if they have a valid visitor's visa or are eligible for the Visa Waiver Program. USCIS claims that they are targeting "abuse" of the adjustment of status process by temporary nonimmigrants who never intended to leave the U.S., and that immigrant visa processing is the proper process under the law.
10. What should we do right now, and what should we avoid doing based on this news?
Foreign nationals contemplating adjustment of status should first consult with an experienced and reputable licensed immigration lawyer to review their circumstances and eligibility for AOS under the new USCIS policy memo. There are circumstances in which AOS will remain viable for many foreign nationals, but immigrant visa processing may be a better option for others.
To discuss how the new memo affects your specific case, request a consultation with Attorney Demian S. Serianni.