by Emmanuel Gonzalez, Esq.

Law BlogJune 12, 20260 comments 0 Likes

USCIS’s New Adjustment of Status Memo: What Green Card Applicants Need to Know

In May 2026, USCIS issued a new policy memorandum addressing Adjustment of Status (AOS) applications and the role of discretion in deciding green card cases. The announcement generated significant concern throughout the immigration community because it suggested that many individuals who are eligible to adjust status inside the United States should instead return to their home countries and pursue immigrant visas through consular processing.

While the announcement’s language was alarming, the actual legal impact of the memo is more nuanced. Understanding what this guidance does, and does not mean is critical for anyone considering filing an adjustment of status application or currently awaiting a decision.

What Is Adjustment of Status?

Adjustment of Status allows certain individuals already present in the United States to apply for lawful permanent residence (a Green Card) without leaving the country.

For decades, adjustment of status has been one of the most important mechanisms for preserving family unity and avoiding unnecessary separation of spouses, parents, and children.

Many applicants who adjust status do so through:

• Marriage to a U.S. citizen;
• Family-based petitions;
• Employment-based petitions;
• Certain humanitarian programs; and
• Other immigration categories authorized by law.

What Did USCIS Announce?

On May 21, 2026, USCIS released a policy memorandum emphasizing that adjustment of status under INA §245(a) is a discretionary benefit.

The following day, USCIS published a public announcement stating that individuals who entered the United States temporarily and later sought permanent residence should generally return to their home countries to complete the immigrant visa process unless “extraordinary circumstances” existed.

This language caused immediate concern because it appeared to suggest a dramatic change in long-standing adjustment of status practices.

Does the Memo Change the Law?

No.

The memo does not change the Immigration and Nationality Act, nor does it eliminate adjustment of status as an option for eligible applicants.

In fact, the memo itself acknowledges that officers must continue evaluating each case individually and weigh all positive and negative factors under the totality of the circumstances.

USCIS cannot rewrite statutory eligibility requirements through a policy memorandum.

Applicants who are legally eligible to adjust status remain eligible to apply.

Who Is Potentially Affected?

The memo specifically focuses on adjustment applications filed under INA §245(a).

It appears to target individuals who:

• Entered the United States legally;
• Were admitted or paroled;
• Later overstayed their authorized stay; and
• Became eligible for permanent residence while remaining in the United States.

According to the memo, USCIS officers may treat visa overstays and expired parole periods as negative discretionary factors when evaluating adjustment applications.

Who Is Likely Not Affected?

Several immigration categories appear to fall outside the scope of this guidance, including:

• Special Immigrant Juvenile Status (SIJS);
• U Visa adjustment applicants;
• T Visa adjustment applicants;
• Refugees;
• Asylees;
• VAWA self-petitioners; and
• Certain other special adjustment categories.

These categories are governed by different statutory provisions and humanitarian considerations.

Why Immigration Advocates Are Concerned

The primary concern is that USCIS may attempt to treat lawful adjustment applicants more harshly simply because they remained in the United States after their visa or parole expired.

Historically, Congress specifically created adjustment of status to promote:

Family Unity

Adjustment of status allows families to remain together while pursuing permanent residence.

Administrative Efficiency

Rather than requiring applicants to leave the United States and process immigrant visas abroad, adjustment permits eligible individuals to complete the process domestically.

Humanitarian Considerations

Many applicants would face significant hardship if forced to leave the United States during the immigration process.

Critics argue that treating an overstay as a heavily negative factor conflicts with the very purpose of adjustment of status.

What Should Applicants Expect at Interviews?

Reports from attorneys around the country indicate that some USCIS officers have begun asking additional questions, including:

• Why did you remain in the United States after your visa expired?
• When did you decide to stay permanently?
• Why are you applying for adjustment of status rather than consular processing?
• What positive factors support a favorable exercise of discretion?

Applicants should be prepared to answer these questions honestly and consistently.

Building a Strong Adjustment Case

Given the current climate, adjustment applicants should ensure their applications clearly demonstrate positive equities.

Examples include:

Strong Family Ties

• Marriage to a U.S. citizen.
• U.S. citizen children.
• Long-term family relationships in the United States.

Community Involvement

• Volunteer activities.
• Religious participation.
• Community service.

Employment History

• Stable employment.
• Tax compliance.
• Professional contributions.

Hardship Factors

• Medical conditions.
• Financial hardship.
• Family separation concerns.
• Safety concerns in the home country.

The stronger the evidence, the easier it becomes to demonstrate that discretion should be exercised favorably.

Should You Leave the United States and Process Abroad?

Not without first consulting an experienced immigration attorney.

For some individuals, departing the United States can trigger serious immigration consequences, including:

• Three-year unlawful presence bars;
• Ten-year unlawful presence bars;
• Prior removal order consequences;
• Inadmissibility issues;
• Waiver requirements;
• Extended family separation.

What appears to be a simple solution can create significant legal problems.

Every case requires an individualized analysis before any decision to leave the United States is made.

The Bottom Line

The May 2026 USCIS Adjustment of Status Memo has created uncertainty, but it has not eliminated adjustment of status as a pathway to permanent residence.

Eligible applicants may still apply for adjustment of status, and USCIS remains legally obligated to evaluate cases under existing immigration laws. However, applicants should expect increased scrutiny regarding overstays, intent at entry, and the reasons they are seeking adjustment within the United States rather than pursuing consular processing abroad.

More than ever, preparation matters. A well-documented application that clearly demonstrates strong positive equities can make a significant difference in today’s immigration environment.

If you are considering filing for adjustment of status or currently have a pending application, consult with an experienced immigration attorney to evaluate your options and develop a strategy tailored to your circumstances.