New USCIS Policy Memorandum Signals Heightened Scrutiny for Adjustment of Status Applications

On May 22, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum addressing how officers should exercise discretion in adjustment of status (AOS) adjudications. The agency simultaneously released public statements emphasizing that immigrant visa processing abroad should be viewed as the preferred route to permanent residence, while adjustment of status inside the United States should be treated as a discretionary alternative.

The announcement immediately generated concern among employers, foreign nationals, and immigration practitioners because it appeared to signal a substantial shift away from long-standing adjustment adjudication practices.

Importantly, however, the memorandum does not eliminate adjustment of status, prohibit concurrent filing, or require employment-based applicants to process immigrant visas abroad. USCIS has since clarified that applicants whose cases provide “an economic benefit or otherwise are in the national interest will likely be able to continue on their current path,” suggesting that employment-based adjustment adjudications are expected to continue, albeit under heightened discretionary review.

The memorandum instead changes how USCIS officers are instructed to exercise discretion in otherwise approvable cases. In practice, the policy appears designed to increase scrutiny of adjustment applicants’ immigration history, maintenance of status, intent at entry, and the availability of consular processing as an alternative path to permanent residence.

What the Memorandum Actually Says

Initial USCIS press statements suggested a far broader policy change than the memorandum itself appears to support. USCIS spokesperson Zach Kahler stated that individuals temporarily present in the United States who seek permanent residence generally “must return to their home country to apply, except in extraordinary circumstances.”

That language, however, does not appear in the memorandum itself.

The operative guidance instead directs officers to consider the availability of consular processing as part of the discretionary analysis in adjustment cases. Specifically, the memorandum instructs officers to consider prior court and Board of Immigration Appeals decisions describing adjustment of status as an “extraordinary discretionary relief” and an “act of administrative grace.”

The statutory framework governing adjustment eligibility under INA § 245 remains unchanged. Applicants who are otherwise eligible to file adjustment applications inside the United States may still do so. Concurrent filing remains available where permitted by statute and visa availability.

What the memorandum changes is the framework through which USCIS officers are instructed to evaluate discretion.

A Shift in Discretionary Analysis

Historically, USCIS officers exercising discretion in adjustment cases generally followed long-standing agency and Board of Immigration Appeals precedent recognizing that favorable discretion ordinarily should be exercised where applicants established statutory eligibility and did not present significant adverse factors such as fraud, criminal conduct, or serious immigration violations.

The new memorandum signals a broader and potentially more restrictive discretionary review process.

USCIS now directs officers to conduct a more expansive review of the applicant’s immigration history, including:

• Compliance with the terms of prior nonimmigrant admissions;
• Whether the applicant engaged in conduct inconsistent with the purpose of admission;
• Whether the applicant maintained lawful status;
• Whether the applicant departed the United States when expected; and
• Whether consular processing was available as an alternative to adjustment of status.

The memorandum also emphasizes that temporary visas are intended for limited-duration stays tied to a specific purpose and suggests that nonimmigrant status should not function as a routine pathway toward permanent residence.

Reframing Adjustment of Status as “Extraordinary”

One of the more consequential aspects of the memorandum is its repeated characterization of adjustment of status as “extraordinary” relief.

Historically, the cases cited by USCIS used that language to describe the procedural nature of adjustment itself. Adjustment of status allowed eligible applicants already present in the United States to complete the immigrant visa process domestically rather than departing for consular processing abroad.

The memorandum, however, appears to use the term more aggressively, suggesting that adjustment should be viewed as disfavored or exceptional relief rather than a routine immigration mechanism authorized by Congress.

That interpretation is difficult to reconcile with the legislative history of INA § 245, which has generally expanded access to adjustment of status over time.

Congressional amendments repeatedly broadened eligibility and expanded discretionary authority, including:

• The 1958 amendments broadening adjustment eligibility;
• The 1960 amendments removing the “good faith” requirement;
• The creation of INA § 245A under IRCA in 1986;
• The enactment and expansion of INA § 245(i); and
• The LIFE Act amendments extending adjustment opportunities to additional applicants.

The overall legislative trajectory of § 245 has historically favored broader access to adjustment rather than limiting it to rare or exceptional circumstances.

Potential Practical Impact

Although the memorandum does not change statutory eligibility requirements, it may significantly affect how adjustment applications are adjudicated in practice.

Increased Scrutiny of Intent at Entry

The memorandum revives analysis associated with Matter of Cavazos and similar cases focusing on the applicant’s intent at the time of admission.

Applicants who entered on B-1/B-2 visitor visas or other single-intent classifications and later pursue adjustment of status may face heightened scrutiny regarding whether they intended to immigrate at the time of entry. USCIS may issue additional Requests for Evidence seeking documentation relating to intent and immigration history.

Greater Importance of Maintaining Nonimmigrant Status

The memorandum also elevates compliance with the terms of nonimmigrant admission as an important discretionary factor.

Under prior practice, many applicants allowed their underlying nonimmigrant status to lapse after filing Form I-485 and obtaining employment authorization and advance parole documents. The new guidance suggests USCIS may now treat failure to maintain status during the pendency of an adjustment application as a negative discretionary consideration.

Where possible, applicants may wish to continue extending and maintaining underlying nonimmigrant status throughout the adjustment process. This may be particularly important for individuals in single-intent or short-duration visa classifications where adjustment processing times may extend beyond the original authorized period of stay.

The memorandum may also affect advance parole travel decisions, especially for applicants whose underlying nonimmigrant status has already expired.

More Detailed Discretionary Denials

The memorandum states that discretionary denials should include written analysis explaining the positive and negative factors considered by the adjudicating officer.

This requirement may create a more developed administrative record for purposes of motions to reopen, appeals, or future litigation challenging discretionary denials.

Who May Be Affected

Potentially affected groups include:

• Employment-based adjustment applicants;
• H-1B, L-1, TN, O-1, and other temporary workers pursuing permanent residence;
• Family-based adjustment applicants;
• EB-1 and National Interest Waiver self-petitioners;
• Dependent spouses and children; and
• Applicants relying on concurrent filing strategies.

The memorandum also reiterates that pursuing adjustment of status is not inherently inconsistent with recognized dual-intent classifications such as H-1B and L-1 status. However, USCIS notes that maintenance of lawful status alone may not be sufficient to warrant favorable discretion in every case.

For employers, the memorandum may require reassessing immigration strategies for sponsored employees, anticipating additional Requests for Evidence or adjudication delays, and evaluating whether consular processing may be preferable in certain cases depending on the employee’s immigration history and long-term plans.

Looking Ahead

The ultimate impact of the memorandum remains uncertain and will likely depend on how USCIS officers apply the guidance in practice. Additional agency guidance, administrative decisions, or federal litigation may further define the scope of the policy.

For now, individuals with pending or anticipated adjustment applications should consider proactively strengthening the discretionary aspects of their cases. Documentation relating to tax compliance, employment history, family ties, long-term residence, community involvement, and other favorable equities may become increasingly important in adjustment adjudications moving forward.

USCIS Original Post： Click