Two months after U.S. Citizenship and Immigration Services issued a sweeping policy memo recharacterizing adjustment of status as an "extraordinary" form of relief, the practical fallout is becoming clearer — and for thousands of noncitizens with pending green card applications, the uncertainty is deepening.
USCIS announced the new policy memo on May 22, 2026, stating that "consistent with long-standing immigration law and immigration court decisions, aliens seeking adjustment of status must do so through consular processing via the Department of State outside of the country."
Officers are directed to consider all relevant factors and information on a case-by-case basis when determining whether an applicant warrants this extraordinary form of relief.
What the Memo Says — and What It Doesn't
The policy memorandum, designated PM-602-0199, is 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."
USCIS emphasized that applying for U.S. Permanent Residence from within the United States "is not an entitlement, but rather a discretionary, extraordinary form of relief."
The memo instructs officers to consider and weigh all relevant evidence, taking into account the totality of the circumstances, to determine whether approval is "in the best interest of the United States."
Critically, however, several immigration law firms have noted a significant gap between the agency's press release and the memo itself.
The phrase "only in extraordinary circumstances" that appeared in the USCIS press release does not appear anywhere in the body of the memo itself.
One law firm characterized USCIS Spokesman Zach Kahler's statement that applicants "must return to their home country to apply, except in extraordinary circumstances" as "misleading," noting that the memo "does not require all green card applicants to file immigrant visa applications abroad."
Confusion from Day One
Following the memo's release, a sequence of conflicting agency statements on May 22, 2026, created significant confusion.
After immediate pushback from the business and legal communities, the agency clarified via email that applicants whose cases provide a clear "economic benefit" or are in the "national interest" will likely be allowed to continue adjusting status domestically.
By May 29, USCIS provided further clarification, stating that the memorandum "does not establish a new policy" and that adjustment of status "remains available for many eligible applicants."
The agency indicated that only certain individuals may be required to complete their immigration process through consular processing outside the United States.
The Heightened Discretionary Standard
Despite the walkbacks, the memo fundamentally changes the calculus for adjustment applicants.
Immigration attorneys who have reviewed the guidance note that the absence of negative factors is no longer sufficient — applicants must "affirmatively demonstrate positive equities," meaning they must show why approval is warranted, not just that nothing works against them.
The totality-of-the-circumstances analysis now requires adjudicators to carefully weigh immigration violations such as overstays and unauthorized employment, compliance with visa or parole conditions, fraud or misrepresentation, conduct inconsistent with stated purpose of entry, and moral character and overall equities.
Applicants who seek adjustment of status after violating their status or remaining in the U.S. instead of departing may face adverse discretionary findings, and individuals in such cases "may need to demonstrate unusual or outstanding favorable factors to overcome these concerns."
Dual-Intent Visa Holders May Face Less Scrutiny
The memo acknowledges possible exceptions, including nonimmigrant visa categories that allow "dual intent" — meaning the applicant can hold a temporary visa while also pursuing a green card — and cases where adjustment of status is the only available pathway to permanent residence.
The new policy may be less applicable to dual-intent nonimmigrant categories such as H-1B, L-1, and their H-4 and L-2 dependents, where applying for adjustment of status is not inconsistent with maintaining status. The scrutiny may be "much less for dual-intent visa holders."
Those in visa categories that do not permit dual intent — meaning they may not have had the intent to seek a green card when they entered the United States — are "particularly at risk for AOS denial."
Emerging Practical Effects
Immigration attorneys are already reporting that USCIS officers are issuing Requests for Evidence and asking interview questions about why applicants chose to apply for a green card in the U.S. rather than through a consulate abroad.
Practitioners anticipate the most likely near-term consequence to be an uptick in RFEs and Notices of Intent to Deny (NOIDs) as officers document their discretionary analysis more thoroughly, which could slow processing timelines significantly.
The guidance has already "contributed to greater uncertainty and closer scrutiny in some cases," with immigration attorneys noting that approval is no longer guaranteed even when statutory requirements are met.
Meanwhile,
a particularly important concern has emerged for applicants currently working only with an Employment Authorization Document (EAD) based on a pending I-485 who let their underlying status lapse — these individuals "may be at higher risk of a discretionary denial under the new policy."
The Risks of Departing the U.S.
For applicants who might consider switching to consular processing, immigration lawyers warn of serious traps.
If an individual leaves the U.S. and a new travel ban, executive order, or administrative delay pauses consular operations, they may be blocked from returning for months or years. Additionally, individuals who have ever had an undocumented gap or status violation could trigger statutory three-year or ten-year bars to re-entry upon departing.
If a case involves more than 180 days of unlawful presence, leaving the U.S. for consular processing could trigger those bars, and the I-601A provisional waiver that might help currently takes about two years to process.
Legal Challenges Taking Shape
At least one law firm is actively building a multi-plaintiff lawsuit, recruiting individuals with pending I-485 applications filed before May 21, 2026, stating: "We believe this policy is unlawful."
Legal experts anticipate challenges under the Administrative Procedure Act, which requires that substantive federal agency policy changes undergo a strict notice-and-comment process through the Federal Register.
The American Immigration Council has noted substantial disagreement with USCIS's assertion that the policy is consistent with the law enacted by Congress, observing that the agency has "effectively changed substantive policy without providing advance notice and an opportunity to comment through rulemaking."
What Applicants Should Do Now
Immigration professionals are offering consistent advice amid the uncertainty:
- Do not withdraw pending applications.
- Prepare strong positive equity packages.
- Be ready for RFEs and tougher interviews.
- Consult an immigration attorney. Given the evolving nature of this policy, professional legal guidance is more critical than ever for anyone navigating the green card process.
It is not yet clear how significantly the new guidance will affect approval rates or adjudication practices, and the policy does not change the statutory eligibility requirements for adjustment of status or create any new filing requirements.
But for the hundreds of thousands of noncitizens whose lives and livelihoods hinge on the outcome of their I-485 applications, the memo has already changed the landscape in profound and unsettling ways.
ClinchLaw is monitoring this rapidly evolving situation and will provide updates as additional agency guidance, adjudication trends, and litigation outcomes emerge. If you have a pending adjustment of status case or are considering filing, contact an experienced immigration attorney to evaluate your options.