Officials are directed to treat adjustment of status applications as an “extraordinary act of discretion” rather than a routine, and often faster and more efficient, alternative to consular processing
For many foreign workers who live and work in the United States, filing a Form I-485 “adjustment of status” (AOS) application with the United States Citizenship and Immigration Services (USCIS) has long been part of an established pathway to permanent residence (a “green card”) under the Immigration and Nationality Act (INA). For employment-based applicants, AOS has allowed continued work authorization and stable employment relationships throughout the often-prolonged green card processing period. For individuals and families, especially those in backlogged preference categories, who are employed and caring for U.S.-born children, the AOS provided a stable mechanism to keep families together while government processing continued.
On May 21, 2026, the USCIS announced a significant policy change in how it intends to handle AOS applications in the future. Given the breadth of this policy change, AOS’s pivotal role in immigration processing for many years, and the fact that the change likely applies to pending adjustment applicants, legal challenges are inevitable.
How AOS has worked until now
Since 1952, most applicants for permanent residence through employment and family-sponsored routes have completed the green card process through AOS. A foreign national who wants to become a lawful permanent resident in the United States and has an approved immigrant visa has two paths to securing their green card. One path is through consular immigrant visa processing, which involves an interview at a US consular office outside the United States — usually in the applicant’s home country. This process can take several months (or years).
The other path to a green card is to request an adjustment of status while still in the United States. The foreign national files Form I-485, “Application to Register Permanent Residence or Adjust Status,” directly with USCIS, thereby completing the green card application process without leaving the country.
The AOS process has generally been available to most employment-sponsored applicants who are lawfully present in the United States on a temporary visa (such as an H-1B) after being inspected and admitted by Customs and Border Protection. AOS, when approved, enables the applicant to remain lawfully in the United States during visa adjudication and provides interim employment authorization.
What was ordinary is now extraordinary
Under the recent Policy Memorandum PM-602-0199 (the Memorandum or Memo), 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, adjudicators are directed to treat adjustment of status applications as an “extraordinary act of discretion,” rather than a routine alternative to consular processing. Per the Memorandum, the USCIS also wants immigrants applying for adjustment of status to do so through consular processing outside the United States.
The Memorandum does not change eligibility requirements, prohibit the filing of Form I-485 applications, or eliminate any green card category. The Memorandum also does not address the USCIS stance on AOS applications already in the system.
USCIS justifies the change as a reaffirmation of a “consistent and longstanding approach” and as a return to the “original intent” of INA 245(a) as codified under 8 USC 1255. In a statement to the press the day after the announcement, USCIS made its intentions clear.
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. When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows and remain in the U.S. illegally after being denied residency.
— Zach Kahler, USCIS spokesperson
INA 245(a) states that “any alien who has been lawfully admitted for temporary status… such status not having been terminated, may apply for adjustment of status…” and that status “may be adjusted by the Secretary, at his discretion.” The language of INA 245(a) clearly grants discretion, but nowhere does it say that an AOS must be extraordinary or rare.
Historically, USCIS adjudications in employment-based and family-based cases focused on statutory eligibility and policy manual guidance regarding discretion. Eligible applicants — particularly employment-based applicants in H-1B or L-1 visa categories and the immediate relatives of United States citizens in family-based cases — were not treated as asking for “extraordinary” relief merely because they were seeking to adjust status rather than leaving the United States for consular processing.
The Memorandum repeatedly emphasizes the extraordinary relief that an adjustment of status provides and that it is the responsibility of consular officers and USCIS officials to carefully evaluate an AOS request, and to consider “all relevant factors and information in the totality of the circumstances” in exercising their discretion. This includes “family ties, immigration status and history, and the applicant’s moral character.”
The Memo does not define or provide examples of what constitutes “extraordinary circumstances” warranting AOS processing in the United States. Instead, the Memo frames AOS as “extraordinary relief” and directs adjudicators to apply a “broad, totality-of-the-circumstances” discretionary analysis on a case-by-case basis. Importantly, the Memo’s own discretionary framework requires officers to weigh positive equities in every case, and documented hardship remains a recognized factor that can support a favorable exercise of discretion.
According to the USCIS, requiring applicants to apply for AOS from their home country “reduces the risk of denied applicants remaining in the United States illegally and frees up agency resources to focus on other priorities.” If AOS visa processing truly shifts to consular offices, we can expect the backlog at those offices to grow significantly in the coming months. Moreover, in December of 2025, the Federal News Network reported that in July of 2025, the Department of State had laid off more than 1,300 employees in “the largest and most complex workforce reduction of its kind.” This action left consulate offices severely understaffed, and the coming onslaught of AOS applications, if it happens, will further swell their caseloads at those offices.
For employers and applicants
The consequences of this policy change could be significant for employers and applicants. If USCIS officials begin to routinely decline adjustment cases and effectively require consular processing, employers should be prepared for more frequent travel disruptions, essential employees being stuck abroad awaiting consular processing, and increased delays and logistical and legal costs.
USCIS has indicated that additional category-specific guidance is forthcoming, and further memoranda focusing on particular AOS processes and applicant populations are expected. In the meantime, it’s more important than ever to present a clear argument for why the applicant deserves to adjust status. USCIS will be applying heightened scrutiny to the process, and AOS applicants should be prepared to provide a more robust I-485 evidence package with the initial filing, including evidence of family ties in the United States, tax compliance, professional contributions, community involvement, charitable activity, and “moral character.”
While the Memorandum doesn’t change the statutory framework, it establishes an interpretive position that will affect how both employment-based and family-based AOS applicants are handled. If seemingly arbitrary denials begin to pile up, applicants and their attorneys may be expected to challenge them in federal court.
Currently, adjustment of status remains a viable option. Applicants may still file adjustment of status applications and respond to requests for evidence. However, in this environment, employers and sponsored employees are advised to consult with immigration counsel to review their current green card filing strategy and future AOS applications.
If you have any questions about how this new policy— or any emerging immigration regulation — affects you and your business, don’t hesitate to contact Orr & Reno for assistance.
