On May 21, 2026, USCIS issued a new policy memorandum emphasizing that Adjustment of Status (“AOS” or Form I-485) is an “extraordinary” discretionary benefit and not something intended to routinely replace normal immigrant visa processing abroad.
The memo has understandably generated significant concern, and our office has been flooded with questions over the past several days.
At least for now, however, the headlines and social media commentary surrounding this memo sound substantially more alarming than the likely practical impact for many applicants — especially traditional employment-based applicants maintaining long-term lawful status in the United States.
What Is USCIS Actually Saying?
The core theme of the memo is that USCIS believes some applicants are improperly using temporary visas to enter the United States and then later seeking permanent residence through adjustment of status rather than through immigrant visa processing abroad.
USCIS repeatedly emphasizes:
- Adjustment of status is discretionary
- Adjustment is considered an “extraordinary” form of relief
- Consular immigrant visa processing abroad is the “normal” process
- Officers should weigh whether an applicant improperly circumvented the normal immigrant visa process
Importantly, the memo does NOT state that:
- all I-485 applications will be denied,
- adjustment of status is ending,
- or that applicants must now leave the United States to obtain green cards.
Rather, USCIS is signaling that officers may apply increased discretionary scrutiny in certain categories of cases.
Which Cases Are Likely Most Affected?
Based on the language of the memo, the cases most likely to face increased scrutiny are those where USCIS believes the applicant may have entered the United States in a manner inconsistent with the temporary purpose of the visa originally issued.
Examples may include:
- Entering the U.S. on a B-2 visitor visa and shortly thereafter marrying and filing adjustment of status
- Entering the U.S. on a B-2 visa while already having an approved I-130 petition and then quickly filing I-485
- Recent F-1 entrants who rapidly pivot into marriage-based adjustment cases
- Cases involving unauthorized employment, status violations, overstays, or inconsistent intent issues
- Situations where USCIS believes the applicant intended from the outset to permanently immigrate rather than temporarily visit or study
The memo specifically instructs officers to consider as adverse factors:
- violations of immigration law,
- fraud or false testimony,
- conduct inconsistent with the purpose of admission,
- failure to depart,
- and attempts to circumvent normal consular processing.
What About Employment-Based Cases?
For many traditional employment-based applicants, this memo may have far less practical impact than the headlines suggest.
The classic employment-based immigration pathway has long been:
F-1 → OPT/STEM OPT → H-1B → PERM/I-140 → I-485
That remains one of the most traditional and intended uses of adjustment of status.
Many employment-based applicants:
- entered lawfully,
- maintained status for years,
- obtained U.S. degrees,
- established careers and livelihoods here,
- paid taxes,
- and transitioned into H-1B status, which is itself a recognized dual-intent category.
The memo itself specifically acknowledges dual intent categories like H-1B.
As a result, traditional long-term employment-based applicants are probably near the bottom of the group USCIS is realistically concerned about under this policy.
Positive vs. Negative Discretionary Factors
USCIS officers may now place increased emphasis on balancing “positive” and “negative” discretionary factors.
Potential adverse factors include:
- overstays,
- unauthorized employment,
- status violations,
- preconceived immigrant intent,
- and failure to depart.
Potential positive factors include:
- strong U.S. family ties,
- long-term lawful presence,
- community integration,
- employment history,
- tax compliance,
- professional accomplishments,
- good moral character,
- and economic contributions to the United States.
For employment-based applicants, employer sponsorship itself may become an important positive discretionary factor.
H-1B Status Is Becoming Even More Important
One of the biggest practical takeaways from the new memo is that maintaining H-1B status while the I-485 remains pending may become increasingly important.
Even before this memo, our office generally recommended maintaining H-1B status whenever feasible during the green card process as an additional layer of protection in the event of:
- I-485 denial,
- delays,
- policy changes,
- or litigation.
The new memo likely strengthens that recommendation.
Employers should identify employees relying solely on adjustment-based EADs without underlying nonimmigrant status.
We Still Need More Guidance
Importantly, USCIS has NOT yet issued detailed category-specific implementation guidance.
The memo is broad and philosophical in tone, but it remains unclear:
- how aggressively officers will apply it,
- which categories will receive the most scrutiny,
- whether RFEs and interview questioning will materially increase,
- and whether future litigation may limit implementation of the policy.
Some aspects of the memo may be vulnerable to legal challenge given Congress’s long history of expanding adjustment eligibility rather than restricting it.
Bottom Line
At least for now:
- Traditional employment-based H-1B adjustment cases remain among the strongest categories of adjustment cases overall.
- Cases involving visitor visa entry followed quickly by green card filing will likely face increased scrutiny.
- Maintaining lawful status and documenting positive equities will become increasingly important.
- Applicants should avoid panicking based solely on headlines or social media commentary while awaiting further implementation guidance.
Our office will continue monitoring developments closely as USCIS releases additional guidance or adjudication trends emerge.