On May 22, 2026, USCIS issued a memo seeking to dramatically limit the availability of adjustment of status to those who are seeking permanent resident status.
While we are still assessing the likely impact of the memo, we do think it has serious flaws, from the cases it cites to the way in which it characterizes the Immigration and Nationality Act and Congress’s intent when it passed the INA.
That being said, we do think there are a few important items to keep in mind.
- The USCIS memo does not eliminate adjustment of status, but reframes it as an “extraordinary” benefit, making I‑485 approvals more discretionary and difficult.
- Applicants should diligently maintain their nonimmigrant status while an adjustment of status case is pending, since USCIS may treat status gaps negatively.
- Even if the memo stands, there will still be ways to argue for favorable discretion; continue complying with U.S. immigration laws and consider consular processing where strategically appropriate.
Analyzing the Impact of the New Adjustment of Status Policy
A Shift Toward Discretion in Adjustment of Status Approvals
First, the memo does not eliminate adjustment of status. It does, however, attempt to make approval of adjustment of status (the I485) more discretionary and harder to acquire going forward. USCIS has done so by instructing its officers to treat adjustment of status as an “extraordinary” benefit rather than a normal path, and to expect applicants to complete their immigrant visa process abroad unless there are strong reasons not to.
The Importance of Maintaining Nonimmigrant Status
Also, those who are thinking about applying for an adjustment of status should continue to maintain their nonimmigrant status while the adjustment of status petition is pending. This gives you an independent basis to remain in the U.S. while the adjustment petition is pending. It is clear in the memo that USCIS interprets the failure to maintain an underlying status as a violation of immigration law that should be construed against the applicant.
Preparing for Discretionary Evaluation and Legal Challenges
Finally, even if the memo survives legal challenges, there would presumably remain avenues to claim that discretion should be applied, and that adjustment of status should be granted. As a result, continue to comply with U.S. immigration laws and to represent yourself as an upstanding member of your community.
Our Strategic Recommendation and Next Steps
Our general approach is to proceed with adjustment of status petitions as we have been, while remaining mindful of any updates that might stem from the announcement of this memo. We would be happy to discuss with you whether, based on your specific facts, consular processing would be strategically safer.
