Important Update Regarding Adjustment of Status
MAJOR “ADJUSTMENT OF STATUS” MEMO1 ANNOUNCING IMMEDIATE CHANGE TO THE ADJUDICATION OF FINAL GREEN CARD APPLICATIONS FROM WITHIN THE U.S., AFFECTING NEW AND PENDING CASES ALIKE
What happened?
Unexpectedly (without advance notice this was coming, and dispensing with the traditional administrative law conventions of “notice and comment” under the Administrative Procedures Act or APA2, thus making it susceptible to litigation), USCIS on May 21, 2026 published a memo entitled, “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”. The memo is couched as “reminder” notification3 to their own officers about how Adjustment of Status applications are to be approached. In actuality though, it seeks to grossly change and greatly narrow the availability of the Adjustment solution to people seeking to so process in the U.S., “reminding” instead that the overseas channel of “consular processing” through the U.S. Department of State ought to be the standard one for most (and that was the original systemic idea that got lost over time). This, however, greatly defies and is wholly inconsistent with the practical reality in the field (especially in employment-based immigration, where Adjustment is and long has been the predominant tool for satisfactorily ending the Green Card process in the case of people already living and working here in the U.S.). In fact, approximately one-half million people each year, in employment, family and humanitarian contexts, will seek Adjustment of Status through USCIS. As those high and consistent annual numbers do serve to show, nothing about the Adjustment process is exceptional or extraordinary (as the memo counsels and reminds). It, to the contrary, is quite ordinary, common to pursue and covers a wide variety of applicants and different case settings. I personally have been doing Adjustment of Status work now routinely for over 25 years. It is one of the most basic processes we manage regularly and applies to a broad class of people and cases.
What is Adjustment of Status?
Adjustment of Status relates to the final step in the process of getting a Green Card issued from within the United States. It requires a separate “Immigrant Petition” (based either on a job or family relationship). In addition, the person’s “priority date” must also be “current”.
When and how was Adjustment of Status created?
Adjustment is nothing new; it was born some 70 years ago. Adjustment of Status, moreover, was a statutory creation of United States Congress, consistent with their Article I, Section 8 “plenary” or exclusive power over immigration, as found and documented in the United States Constitution. Since its time of first genesis several generations ago, Congress subsequently has revised and expanded the Adjustment of Status concept about twenty times altogether, including with reference to (among other examples we could offer) the Child Status Protection Act and 204(j) job portability. AC21 H-1B Extensions also are super common to have to seek in practice and they relate directly to the length of time that commonly is required to complete the Adjustment process (we wouldn’t have one without the other).
Adjustment emanating from an act of Congress is highly important legally. USCIS cannot contravene the will of Congress. It cannot arbitrarily expand nor restrict the scheme that Congress created (consistent with how the “separation of powers” concept works). It seems clear though that this is exactly what they have sought to do through this memo. It is ripe, accordingly, for judicial challenge through our courts.
Is Adjustment of Status discretionary?
YES, by express statutory language, found in section 245(a) of the Immigration and Nationality Act (“INA”), Adjustment is and has always been inherently discretionary. This is because of direct statutory language, found in the statute itself, providing that one’s temporary stay and status in the US “may be adjusted by the Attorney General, in his discretion”4 (as an alternative to consular processing overseas). However, it is a major stretch for USCIS to all of a sudden now do an “about face” and “remind” its staff that this “discretion” means the Adjustment remedy is intended to be “exceptional” and only intended for a small class of applicants. That flat-out is wrong; that has never been the way that it has worked; this was not what Congress had intended; and Congress has not touched a thing to effectuate any change. This memo gives our field and the immigration community another issue and major and illegal substantive change that we can and will next challenge and advance through the courts.
What happens next?
Do not panic. Stay committed to the same course and to what we were pursuing, prior to this memo coming down. The Adjustment process has not been eliminated. Clients do not have to assume they now must process overseas (note many of the early national headlines on this were misleading, outrageous and sensationalized). USCIS has added an extra test and new requirements to the process (that is what is questionable, as overstepping and contravening Congress). The Adjustment process though is still there and it is still available. USCIS cannot legally “close it”. Congress had created it and Congress is the proper rule-making body here.
If we are actively building an Adjustment of Status case for you to near point of imminent filing, we will contact you soon to schedule an appointment to discuss, plan and strategize. There are a couple of tools we can share that illustrate the new criteria and how it will be applied. Using them would enable us to develop and include extra supporting documents at the initial filing stage, designed to address the memo.
Those with pending Adjustment applications, already filed, do not need to take any action at this time. Understand a lot could change with this over time. Sit tight and stay patient. This all is so new. Our advice is to be patient, stay the course and watch for updates. If, ultimately, they want to issue an “RFE” or Request for Evidence under the new memo, we will get it in time and can simply await its arrival. There is not anything we need to affirmatively do at this time. Your case stays right where it is and will not be expunged.
USCIS’ memo also indicates that further visa-specific guidance will be forthcoming. The agency did seem to also back-peddle a bit on Saturday, May 23rd, suggesting the memo will not be as far-reaching as first originally feared, and that a person’s economic value, contribution and worth will carry strong weight.5 That was promising for the employment-based community to hear (though we do need to learn more). The memo did also contain an acknowledgment of “dual intent”. That is a doctrine that protects H-1B and L-1 populations when seeking Green Cards through the Adjustment process specifically. The memo did also state, however (in footnote 20), that simply maintaining dual intent status alone is not enough.6
What best illustrates, then, what would be this new standard, if this stands (which it shouldn’t over time)?
The USCIS Policy Manual (“PM”), available at https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10, today represents the best source of insight on this new guidance, showing how it looks and will play out in practice, with officers now expected to use this protocol when making their decisions. What’s fascinating is that this information resource (serving as guidance to USCIS officers on how they should handle these issues when adjudicating such applications and when doing their jobs), it is not nearly as scary as how the actual memo itself (more theatrically) reads (in a rather chilly way). Relevant portion of the PM identifies two columns analytically, with the “good facts” you want on the left and the bad ones you don’t want on the right. Directive to the officers is that “good” must outweigh “bad” in order for Adjustment discretion to be exercised. If they’re being fair with us (which itself is an open question), then most cases and clients would not have a problem meeting this standard (especially on the business side in employment-based cases). Take a look at what it says for yourself, breathe easier and exhale. Table was cut-and-pasted directly from the PM at https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-10.
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2. Issues and Factors to Consider in the Totality of the Circumstances
The following table provides a non-exhaustive list of factors or factual circumstances that officers generally should consider in exercising discretion with respect to an application for adjustment of status to that of LPR. EDITOR’S NOTE: We plan to add a new case development process around this for new Adjustment matters, going forward; and will be able to put together and include a special supporting document package for people, designed just to address this new emphasis on discretion under the 05/21/2026 agency memo. It will use this same chart, above, and will apply it to differing client factual and legal circumstances. We think this would work well, if we find we need it. If so, we should be able to provide overwhelming visuals in favor of discretion being exercised and for such applications being approved (as traditionally always has been the case).
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What also serves to best illustrates the new standard?
During Memorial Day Weekend, several stakeholders did report early receipt of RFEs or Requests for Evidence under application of this new memo already. We provide it to you below for reference on the next page. Clients, however, with pending Adjustment applications should not simply assume that all parties necessarily will get this. The system simply is not that systematic, the officers do have the discretion to approve applications without requesting any more documents, and many of the standard Adjustment items (that historically are required in these cases, routinely over time) already do address this new added documentary territory. This (below) is an example of what you may be asked to show, upon RFE, in order to justify a favorable exercise of discretion and process in the United States (as has long been the case and available some 70 years). No one with a pending Adjustment case needs to start taking any action independently at this time toward collecting such items (unless and until USCIS puts it in issue and we do get a notice). This sample RFE though is good information to share, so people can see how they break it down in these and seek to apply the new memo in them. Clients should also be comforted in recognizing there is a lot here in this list that we can produce in support of continuing client eligibility for Adjustment of Status and that’s very good.
Thank you so much for your attention to this important message. Please also note this is the height of a developing situation. As new details on this continue to emerge (and things did continue to shape and evolve throughout the weekend), we will write and share more with you and bring you that new information. We appreciate the continuing partnership on your immigration.
Shaun Foster, Principal
Foster Immigration, Woburn, MA