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On May 21, 2026, the U.S. Citizenship and Immigration Services (USCIS) issued a significant policy memorandum signaling a substantial shift in how the agency will evaluate applications for adjustment of status (“AOS”) filed within the United States.
The memorandum asserts that the ability to adjust status in the United States, rather than process for an immigrant visa abroad, is a “matter of discretion and administrative grace”. While the memo does not prohibit the filing of adjustment applications, it is designed to increase scrutiny and narrow the circumstances under which USCIS will exercise favorable discretion.
For employers sponsoring foreign national employees, as well as individuals with pending or future AOS applications, the memo will likely have far-reaching implications.
Increased Discretionary Review: Historically, adjustment of status eligibility focused primarily on statutory requirements. The new memorandum indicates that USCIS officers will place increased emphasis on discretionary considerations and the “totality of the circumstances” when determining whether an applicant merits approval. Importantly, the memo indicates that the absence of negative factors alone will not be sufficient to warrant approval. USCIS officers are instructed to evaluate whether favorable discretion should affirmatively be exercised. The memorandum identifies several potenial negative factors, including:
- Prior violations of immigration status;
- Allegations or findings of fraud or misrepresentation;
- Conduct inconsistent with a foreign national’s nonimmigrant intent at the time of entry; and
- Other discretionary concerns related to the applicant’s overall immigration history and conduct.
The memo also references “moral character” considerations, language that resembles the standards often associated with naturalization adjudications. However, USCIS provides little guidance regarding what positive factors may outweigh adverse considerations or how officers should balance competing equities.
Emphasis on consular processing: The memo characterizes adjustment of status as an alternative to avoid “the prescribed ordinary consular visa process” requiring the foreign national to apply at a U.S. consulate. This emphasis on requiring foreign nationals to process for immigrant visas at U.S. consulates abroad is particularly concerning in light of recent U.S. Department of Status (DOS) policy changes.
DOS now requires that foreign nationals must consular process only in their home country or country of last residence. See here. Additionally, global consular operations remain strained around the world due to wars and conflict, staffing shortages, and security concerns. There have been significant reduction in staff at U.S. consulates worldwide.
Compounding these challenges, DOS recently paused the processing of all immigrant visas for foreign nationals of 75 countries. See here. Requiring foreign nationals from these countries to depart the United States to consular process is basically telling them to leave without a way to come back – at least any time soon.
Dual intent visas – H and L: The memo specifically “reminds its officers that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a category with dual intent. Dual intent visas are H-1B and L-1. Then in a footnote, it indicates that “maintaining status in a dual intent nonimmigrant category is not sufficient, on its own, to warrant a favorable exercise of discretion.” Therefore, the weighing of the factors indicated above will still be required.
Significant clarification is still needed: While the memorandum signals a substantial policy shift, important questions remain unresolved, including:
- How USCIS will adjudicate currently pending adjustment applications;
- What specific positive factors will support a favorable exercise of discretion;
- Whether certain applicant groups will face heightened scrutiny;
- How broadly USCIS officers will apply discretionary denials; and
- Whether additional implementing guidance or policy memoranda will follow.
Practical implications for employers and foreign nationals: This memorandum has the potential to materially affect workforce planning, long-term immigration strategies, and permanent residence sponsorship processes for employers. Foreign nationals with pending adjustment applications, backlogged priority dates, prior status issues, or complex immigration histories should expect increased scrutiny and potentially longer adjudication timelines.
Potential law suits: It is anticipated that there will be quick litigation on this memorandum that could bring about a stay or preliminary injunction on its implementation.
Webinar on Friday, May 29th at 1pm: In response to the significant interest and volume of inquiries regarding this policy development, Trow & Rahal, P.C. will host an open webinar for employers, HR professionals, referral partners, and foreign nationals on Friday, May 29, 2026, at 1:00 PM ET.
The webinar will address key provisions of the USCIS memorandum and the possibly impact on pending and future applications to adjust status, keeping in mind the broad sweeping nature of the memorandum and the many unanswered questions.
Due to the volume of calls and emails received regarding this development, our attorneys and paralegals may not be able to respond individually to all inquiries. We encourage interested participants to register for the webinar by clicking here.
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