On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued a policy memo addressing how officers should exercise their discretion when adjudicating Adjustment of Status (AOS) applications (Form I‑485) filed within the United States.
Historically, nonimmigrant visa holders in the U.S. (such as those on temporary worker, student, or tourist visas) have frequently transitioned to permanent residency by filing an AOS application directly with USCIS. Under the newly announced policy, USCIS is signaling a preference toward consular processing and directing officers to more carefully examine whether a particular applicant warrants in‑country adjustment.
The memo does not ban AOS or require everyone to obtain an immigrant visa through a consulate. Eligible applicants can still adjust status. But USCIS is clearly reframing AOS as an “extraordinary” discretionary remedy and reminding officers that the “ordinary” route to permanent residence is consular processing abroad.
Key Takeaways from the Announcement
- Renewed Emphasis on Consular Processing: USCIS’s revised policy asserts that individuals seeking permanent residency while in the United States on temporary visas should generally pursue consular processing—meaning they apply for their immigrant visas through a U.S. consular post abroad. Adjustment of status is framed as an extraordinary exception to this regular process, not the default. However, this is not a blanket bar to adjustment of status.
- Discretionary, Case‑by‑Case Review: The memo directs USCIS officers to exercise their discretion and evaluate each application individually. Officers must weigh the totality of the circumstances, including both favorable and unfavorable factors, before making any determination. Adjustment of status is (and has always been) a discretionary benefit, and this memo reinforces that officers must engage in a full, balanced analysis rather than relying on categorical approvals or denials. The burden remains on the applicant to show they merit this “act of grace.”
- What Officers Will Look At: Positive factors (such as a strong employment history, long‑standing ties to the U.S., approved immigrant petitions, and family circumstances) and negative factors (such as prior immigration violations, failure to maintain status or depart as required, or other adverse history) will be considered together. No single factor is automatically determinative, but the memo highlights status violations and remaining in the U.S. instead of using an available consular process as “highly relevant” adverse factors. The memo recognizes an important nuance for dual‑intent nonimmigrants such as most H‑1B and L‑1 workers; USCIS reminds officers that applying for AOS is not inconsistent with maintaining a dual‑intent nonimmigrant status, although lawful dual‑intent status alone does not guarantee a favorable exercise of discretion.
- Stated Rationales: USCIS states that this policy aims to align adjudications with the underlying framework of nonimmigrant visa categories and to allocate agency resources more efficiently. At the same time, the discretionary nature of the review means that individual facts and circumstances remain central to each outcome, and officers must explain the specific positive and negative factors they rely on in any discretionary denial.
How This Fits a Broader Trend
This memo aligns with a broader pattern in recent USCIS policy:
- August 2025 guidance made good moral character for naturalization a more explicit “totality of the circumstances” inquiry, emphasizing both positive equities and rehabilitation.
- Around the same time, USCIS instructed officers to consider certain “anti‑American activities” and related expressive conduct in a long list of discretionary benefit types, including AOS.
- USCIS also revived “neighborhood investigations” in some N‑400 cases and expanded its law‑enforcement‑style authorities, signaling a more investigative, character‑focused posture.
Taken together, those changes and the new AOS memo push the system toward greater reliance on discretionary judgments about an applicant’s conduct, compliance, and “fit” for permanent residence, even where statutory eligibility is met.
What This Means at a High Level
For most applicants, the legal eligibility rules for AOS have not changed. What has changed is how USCIS wants officers to think about granting or denying cases that are technically eligible, and the expectation that AOS will be treated as an “extraordinary” exception to the normal consular process that must be justified by the applicant’s overall equities and compliance history.
More Details to Come
The guidance closes by stating that “USCIS may provide [further] policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process.” We will provide updates as we learn more.
Jennifer Carr & Claire Pratt © Jewell Stewart Pratt Beckerson & Carr PC 2026
