28 May New USCIS Policy on Green Card applications and adjustment of status

What is the status of new USCIS Policy of requiring green card applicants to apply in their country and not in the US for adjusting status?

As of late May 2026, USCIS has issued a new policy memorandum (dated May 21, 2026) that signals a significant shift in how Adjustment of Status (AOS) applications are processed.

It is important to clarify that this is not an outright ban on adjusting status within the U.S., but rather a directive to USCIS officers to treat in-country adjustment as a matter of “discretionary grace” and “extraordinary relief” rather than a standard procedure.

Key Points of the New Policy

• Discretionary, Not Guaranteed: The memo reiterates that adjustment of status is a privilege, not a right. Officers are now instructed to conduct a more rigorous, case-by-case analysis to determine if an applicant truly warrants an exception to the “ordinary” process of consular processing (applying from abroad).
• Focus on Consular Processing: The policy effectively directs that applicants should, as a general rule, return to their home country to complete the immigrant visa process through a U.S. consulate.
• “Extraordinary Circumstances”: While the memo does not provide a rigid definition of what qualifies as an “extraordinary circumstance,” it directs officers to consider factors like immigration law compliance, family ties, and potential negative factors (such as failure to depart the U.S. as expected).
• Impact by Visa Category:
  o H-1B and L-1 Holders: These categories are generally viewed as “dual-intent” (the legal right to intend both a temporary stay and future permanent residency). Legal experts suggest these applicants remain in a relatively stronger position, though they are still subject to the new, more stringent discretionary review.
  o F-1 Students & B-1/B-2 Visitors: These groups are expected to face the highest level of scrutiny, as these visas are intended for temporary stays without immigrant intent. Filings made shortly after entering on a tourist visa, in particular, may face heightened suspicion.

Can an application for adjustment of status still be filed?

• It is not a total halt: USCIS is still accepting Adjustment of Status (Form I-485) applications.
• Increased Scrutiny: You should expect longer processing times, a higher likelihood of receiving Requests for Evidence (RFEs), and a much greater emphasis on documenting your “positive equities” (such as community ties, employment history, and tax compliance) to justify why you should be allowed to adjust status within the U.S.
• Legal Guidance is Crucial: Because the outcome now depends heavily on an officer’s individual discretionary judgment, legal experts strongly recommend consulting with an immigration attorney to build a robust, well-documented case that addresses these new, higher thresholds.

What will happen to the I-485 filings already accepted by USCIS?
The new policy memo (PM-602-0199) issued by USCIS on May 21, 2026, does apply to already pending Form I-485 applications.
Because the favorable exercise of discretion is evaluated at the time of final adjudication—not at the time of initial filing—officers have been instructed to apply these new, more rigorous discretionary standards to any case that has not yet been approved.

Here is a breakdown of what this means for your currently pending case:

1. No Immediate Action Required
USCIS has not instructed applicants to withdraw, amend, or refile pending cases. You do not need to take proactive steps to change your application status simply because of this policy change.

2. Expect Increased Scrutiny
Even though your application was accepted under the previous, more routine environment, it is now subject to the “new lens” of the May 2026 memo. You should be prepared for:

• Requests for Evidence (RFEs): Officers may issue RFEs specifically asking for documentation of “positive equities” (e.g., strong family ties, community contributions, or why returning to your home country for consular processing would be an undue hardship).
• Interview Focus: If your case requires an interview, expect the officer to probe more deeply into your intentions at the time of your last entry into the U.S. and why you are seeking to adjust status locally rather than through a consulate.
• Written Explanations: The policy requires that if an officer denies an application based on this discretionary standard, they must provide a detailed written explanation of how they weighed the positive and negative factors in your specific case.

3. Risk Factors
The memo instructs officers to perform a “totality of the circumstances” analysis. You may face higher risk if your record includes:

• Status Gaps: Periods where you were out of status or working without authorization.
• Inconsistent Conduct: Actions taken after your admission that contradict the original purpose of your visa (e.g., entering as a tourist and immediately seeking employment or permanent residence without a clear change in circumstances).
• Prior Issues: Any history of past misrepresentations, fraud, or violations of immigration law.

What You Should Do Now

• Stay Informed: This policy is very new and is already expected to face legal challenges. Stay updated on any class-action lawsuits or court injunctions that might pause or invalidate this memo in the coming weeks.
• Consult Your Attorney: If you have any “risk factors” (like a previous status gap or a short time between arrival and filing), contact the attorney or representative handling your case. They may want to proactively bolster your file with additional evidence of your “equities” (good moral character, community ties, etc.) in anticipation of an RFE or interview.
• Avoid Unauthorized Travel: If you have an Advance Parole document, use it with extreme caution. While the memo does not invalidate your travel document, if your I-485 is denied, any underlying travel permission or Employment Authorization Document (EAD) linked to that pending adjustment of status is likely to be revoked.

Note: This is not legal advice

Chris Caday Lozano, Esq. is an active member of the State Bar of California, the American Immigration Lawyers Association and San Francisco Trial Lawyers. He has practiced immigration law, bankruptcy, and income tax representation since June 1999. His contact phone is 1-877-456-9266, email: info@CCLlaw.net Website: www.crispinlozanolaw.com/ with offices in Hayward and Cerritos, CA.