Shifting the Balance: How Discretion Now Plays a Greater Role in Adjustment of Visa Status

On May 21, 2026, the United States Citizenship and Immigration Services (USCIS) issued a new Policy Memorandum – PM-602-0199 (“Memo”) regarding adjustment of status (AOS) determinations. AOS is the immigration process that allows a non‑citizen who is already physically present in the United States to obtain lawful permanent resident status (commonly known as a green card) without leaving the country. The Memo directs adjudicating officers to apply heightened scrutiny when evaluating the dispositive factors that may warrant a favorable exercise of discretion in AOS applications, marking a significant shift in both employment, family, and other humanitarian-based immigration adjudications. 

The policy redefines how USCIS officers are to exercise discretionary authority under the Immigration and Nationality Act (INA) by repeatedly emphasizing that AOS consideration is an “administrative grace” and the granting of the relief is “extraordinary,” since it permits applicants to avoid the  immigrant visa process abroad. 

It is important to note, however, that this Memo does not preclude foreign nationals from applying for AOS, as has been widely reported in the media. Further, it does not prevent USCIS officers from approving AOS applications as long as one meets the criteria and the appropriate discretion is applied.

At the time of publication of the Memo, USCIS spokesman Zach Kahler described the meaning of the Memo as follows: 

We’re returning to the original intent of the law to ensure aliens navigate our nation’s immigration system properly. From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances. This policy allows our immigration system to function as the law intended instead of incentivizing loopholes.

One day after publication of the Memo, however, USCIS gave the following explanation of the true meaning of the Memo:

While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances. 

AOS Explained   

To qualify for AOS, an applicant must meet the requirements set out in Section 245(a) of the INA. These include:

• Inspection and admission or parole — the applicant must have been lawfully inspected and admitted or paroled into the United States.
• Eligibility for an immigrant visa — the applicant must be eligible to receive an immigrant visa.
• Visa availability — the applicant must be immediately available both at the time the application is filed and when it is decided.
• Admissibility — the applicant must be allowed to enter or remain in the United States and cannot fall under any of the “inadmissibility grounds” under the Section 212 of the INA.

Through this process, an individual may “adjust” from a non‑immigrant status to that of a permanent resident.

What Has Changed?

The Memo does not outright prohibit or stop the AOS process or subject all applicants to undergo consular processing. Under the law, the grant of AOS has never been purely automatic but has always been a discretionary benefit after meeting statutory eligibility. This discretionary authority has long existed with federal and immigration courts consistently recognizing that meeting the technical eligibility requirements alone does not guarantee approval.¹ While the statutory requirements for eligibility remain unchanged, the Memo emphasizes that AOS is an extraordinary benefit and a matter of administrative grace, even after an applicant satisfies the required statutory criteria. This is a very limiting interpretational change. The Memo essentially changes the default presumption regarding eligibility and how USCIS officers weigh factors in making the AOS decision—i.e., AOS is a benefit that must be earned, creating a more demanding merits/equities standard even after technical eligibility is established. 

Through this Memo, USCIS officers are directed to review an applicant’s entire record and give enhanced weight to the negative and positive factors relative to the privileges, rights, and responsibilities of legal permanent resident status. Once the officer has weighed each factor, the officer is directed to consider all the factors cumulatively to determine whether the positive factors outweigh the negative ones. 

Additionally, the Memo’s language seems to imply that adjustment applicants are trying to avoid the “normal” process of applying through a U.S. consulate abroad, which does not align with the underlying statute, Section 245(a) of the INA, or congressional intent of permitting eligible, physically present non-citizens to adjust their status and obtain permanent residence without departing for consular processing. The entire purpose of adjustment of status was administrative efficiency, humanitarian flexibility, and continuity of lawful presence.

Who Is Impacted? 

All eligible non-immigrants, including those who hold a dual-intent visa (i.e., a temporary visa, such as H-1B or L-1, that allows a foreign national to enter the U.S. temporarily on a work visa while also intending to pursue permanent residence without violating their status), who apply for AOS are impacted by the Memo. Although the Memo acknowledges that adjustment is not inconsistent with being on a dual-intent visa, this fact “is not sufficient, on its own, to warrant a favorable exercise of discretion” granting the AOS. Thus, those categories may remain comparatively insulated over the non-dual intent categories (e.g., F-1, J-1, TN, E-3, B-1/B2, parole, TPS etc.), which have greater vulnerability since USCIS may now further look into their decision to remain and adjust applying the heightened discretionary standard. 

The implementation of this Memo will greatly affect both employers and employees, as it may lead to delays in securing permanent resident status for their talent pool. This could pose a risk of business disruption for employers if essential workers are required to exit the United States to continue the green card process abroad, resulting in potential project delays, loss of qualified employees, costs associated with the delay, or the need for reassignment of other employees to substitute for the foreign national while they seek consular processing. For employees, this may lead to reduced certainty in green card adjudications, a potential need to depart the United States during processing, and exposure to visa delays, extended administrative processing, and travel-related risks. 

Conclusion 

There remains significant uncertainty regarding how this Memo will be applied in practice, and its full impact will not be clear until it is evaluated against specific fact patterns. The applicability of the Policy Memo will depend on specific facts of each case and how the USCIS ultimately applies the Memo’s AOS decision-making factors. As in almost all changes in immigration law, it is likely that legal challenges will be filed.² For now, companies whose employees have pending applications or will be filing AOS applications are encouraged to consult immigration counsel for proper guidance for compliance.