On May 21, 2026, USCIS issued a significant policy memorandum titled “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.”
While the memo does not create a new law or regulation, it signals a major policy shift in how USCIS may adjudicate Adjustment of Status (AOS) applications moving forward. The agency repeatedly emphasizes that adjustment of status is not an entitlement, but rather an “extraordinary” discretionary benefit that allows applicants to avoid the normal immigrant visa process through a U.S. consulate abroad.
For many applicants, this could mean increased scrutiny, more Requests for Evidence (RFEs), more Notices of Intent to Deny (NOIDs), and potentially more discretionary denials, even where the applicant is otherwise eligible for a green card.
What Is USCIS Saying in This Memo?
USCIS is reminding officers that Adjustment of Status under INA §245 is discretionary and should not be viewed as the default pathway to permanent residence. According to the memo, Congress intended consular processing abroad to remain the ordinary process for obtaining immigrant visas.
The memo directs USCIS officers to carefully weigh both positive and negative discretionary factors in every AOS case. It specifically highlights concerns about applicants who:
- Overstayed their authorized period of admission
- Violated the terms of their visa
- Worked without authorization
- Entered on temporary visas while allegedly intending to immigrate permanently
- Used parole programs and later pursued permanent residence
- Failed to depart after the purpose of their admission or parole was completed
USCIS further states that these factors may require applicants to demonstrate “unusual or even outstanding equities” to overcome negative discretionary concerns.
Who Is Most Likely to Be Impacted?
Although the memo broadly applies to discretionary adjustment applications, several categories of applicants are likely to face heightened scrutiny.
1. Applicants with Status Violations or Unauthorized Employment
Individuals who:
- Overstayed a visa
- Worked without authorization
- Failed to continuously maintain a lawful status
- Violated the terms of their non-immigrant classification
These individuals are likely to face increased discretionary review, even if statutory forgiveness provisions apply. Immediate relatives of U.S. citizens may still remain eligible under existing law, but USCIS officers may now place greater emphasis on discretionary factors when adjudicating these cases.
2. Parole-Based Applicants
The memo specifically discusses parole programs and reiterates that parole is intended to be temporary and granted only for urgent humanitarian reasons or significant public benefit.
Applicants who entered through humanitarian parole programs and later seek permanent residence through adjustment of status may receive closer scrutiny regarding:
- Compliance with parole conditions
- Whether they were expected to depart
- Whether consular processing was available instead
This language could particularly affect individuals who entered under:
- CHNV parole programs
- Certain humanitarian parole initiatives
- Border parole releases
- Other discretionary parole pathways
3. Applicants Accused of Misrepresentation or Preconceived Immigrant Intent
The memo directs officers to consider:
- Prior fraud or false testimony
- Conduct inconsistent with visa purposes
- Representations made to consular or DHS officers
- Actions after admission suggesting immigrant intent
This could lead to more aggressive scrutiny of applicants who:
- Entered on B-1/B-2 visitor visas and later married U.S. citizens
- Entered as tourists and quickly filed adjustment applications
- Used F-1, ESTA, or other temporary classifications before pursuing permanent residence
4. Employment-Based Adjustment Applicants
Employment-based applicants may also see increased scrutiny, especially where:
- There were prior status violations
- The applicant fell out of status before filing
- Unauthorized employment occurred
- The applicant relied on INA §245(k) forgiveness provisions
The memo repeatedly emphasizes that adjustment remains discretionary even when statutory eligibility exists.
5. Applicants Without Strong Equities
USCIS officers are instructed to evaluate the “totality of the circumstances,” including:
- Family ties
- Moral character
- Immigration history
- Compliance with immigration laws
- Overall suitability for permanent residence
Applicants with weak equities or significant immigration history issues may therefore face a higher risk of denial.
Who May Be Less Impacted?
The memo specifically acknowledges that certain categories are different, including:
- Dual intent visa holders (such as H-1B and L-1 visa holders)
- Categories where adjustment is the only available pathway
- Certain statutory exceptions under INA §245
However, USCIS also cautions that merely maintaining lawful status in a dual intent category does not automatically guarantee a favorable exercise of discretion.
What This Means Practically
At this stage, the memo appears designed to:
- Encourage stricter discretionary adjudications
- Lay groundwork for future policy changes
- Support increased denials in marginal cases
- Reinforce USCIS authority to deny adjustment applications even where eligibility technically exists
Importantly, the memo also states USCIS may issue additional policy guidance targeting “specific adjustment of status categories or discrete populations” in the future. This suggests further restrictions or heightened scrutiny may follow.
Key Takeaways for Applicants
Individuals pursuing Adjustment of Status should expect USCIS to place increased emphasis on:
- Immigration history
- Prior status compliance
- Unauthorized employment
- Visa intent issues
- Discretionary equities
- Overall credibility and conduct
Applicants with complicated immigration histories should carefully evaluate risks before filing and ensure that any discretionary concerns are proactively addressed with supporting evidence and legal strategy.
Final Thoughts
Although this memorandum does not immediately change statutory eligibility requirements, it reflects a clear shift toward more restrictive discretionary adjudication standards for Adjustment of Status cases. The practical impact may be substantial, particularly for applicants with prior immigration violations, parole-based entries, or facts suggesting immigrant intent inconsistent with their original visa classification.
As USCIS officers begin applying this guidance in real-world adjudications, applicants and practitioners should expect increased RFEs, NOIDs, and discretionary denials in cases that may previously have been approved.
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JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
