On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) announced a new policy memorandum emphasizing that adjustment of status (AOS) is a discretionary immigration benefit and should not be treated as a routine alternative to immigrant visa processing through a U.S. consulate abroad.
The policy signals a potentially more restrictive approach to adjudicating Form I-485 adjustment of status applications and may have significant implications for employers and foreign nationals pursuing permanent residence from within the United States.
Understanding the Two Main Paths to U.S. Permanent Residence
For readers less familiar with the U.S. immigration system, there are generally two primary pathways through which foreign nationals obtain lawful permanent residence (a “green card”).
The first pathway is adjustment of status. In many employment-based and family-based immigration cases, individuals already lawfully present in the United States apply for permanent residence without leaving the country. Typically, the individual first enters or remains in the United States in a temporary nonimmigrant classification — such as H-1B, L-1, F-1, TN, O-1 or another visa category — and later files Form I-485 with USCIS to “adjust” from temporary status to lawful permanent resident status while remaining in the United States.
The second pathway is consular processing. Under this process, a U.S. employer or qualifying family member files an immigrant petition — typically Form I-140 for employment-based cases or Form I-130 for family-based cases — requesting immigrant visa processing through a U.S. embassy or consulate abroad. Once approved, the petition is transferred to the National Visa Center (NVC), and the foreign national ultimately attends an immigrant visa interview outside the United States, usually in the individual’s country of nationality or residence.
Importantly, consular processing does not necessarily mean that a foreign national must remain outside the United States throughout the green card process. In many cases, the individual may continue living and working in the United States in a valid nonimmigrant status while awaiting immigrant visa processing abroad. However, unlike adjustment of status applicants, individuals pursuing consular processing generally must maintain an underlying nonimmigrant status until the time they depart the United States for their immigrant visa appointment abroad.
Consular processing may also involve additional costs, international travel and potential employment or personal disruptions associated with attending a visa appointment outside the United States. Depending on the U.S. embassy or consulate involved, applicants may remain outside the United States for several weeks or longer following the interview due to visa issuance timelines, administrative processing or other adjudicatory delays.
In some countries, immigrant visa processing is centralized at a single U.S. embassy or consulate serving the entire country. For example, immigrant visa processing in Canada is handled through the U.S. Consulate General in Montreal. As a result, appointment availability and overall processing timelines can vary significantly depending on the location involved, and in some cases immigrant visa interview scheduling may take many months.
Historically, adjustment of status has become the preferred option for many eligible applicants already present in the United States because it allows them to remain in the country during processing and often provides access to interim employment authorization and travel authorization while the application is pending.
The new USCIS policy is significant because it suggests the agency may no longer view adjustment of status as the routine or preferred path to permanent residence in cases where consular processing may instead be available.
USCIS’s New Policy Framework
The policy applies to adjustment of status applications filed under INA §245. While adjustment of status has always technically been discretionary under the Immigration and Nationality Act, USCIS is now expressly directing officers to place greater emphasis on whether applicants should pursue immigrant visa processing abroad rather than permanent residence from within the United States.
USCIS states that adjustment of status was not intended to “supersede” the ordinary immigrant visa process through U.S. consulates abroad and repeatedly characterizes adjustment as an extraordinary form of relief and an act of “administrative grace.”
Under the new guidance, USCIS officers are instructed to evaluate the “totality of the circumstances” when determining whether adjustment of status should be granted as a matter of discretion.
The policy directs officers to closely examine issues such as:
- Maintenance of lawful immigration status
- Prior immigration violations
- Unauthorized employment
- Compliance with the terms of admission
- Conduct inconsistent with nonimmigrant intent
- Prior overstays or periods of unlawful presence
At the same time, USCIS states that officers should weigh favorable discretionary factors, including family ties, long-term lawful residence, employment history, economic contributions, humanitarian considerations and other positive equities.
Importantly, the policy notes that the absence of adverse factors alone may not be sufficient to warrant approval. According to USCIS, applicants may still need to affirmatively demonstrate equities supporting a favorable exercise of discretion.
Discretionary Factors Identified by USCIS
USCIS states that officers should balance both positive and negative factors in each case.
Examples of adverse factors may include:
- Immigration status violations
- Unauthorized employment
- Fraud or misrepresentation
- Failure to maintain lawful status
- Conduct inconsistent with the terms of admission
- Failure to depart following expiration of authorized stay
- Prior immigration violations or noncompliance
Examples of favorable factors may include:
- Strong family ties in the United States
- Long-term lawful residence
- Stable employment history
- Economic contributions
- Good moral character
- Community involvement
- Humanitarian considerations
The guidance appears intended to encourage more individualized discretionary analysis in adjustment adjudications, even where applicants are otherwise statutorily eligible for permanent residence.
Applicants Potentially Most Impacted
The new policy may have greater relevance for applicants with more complicated immigration histories or who are no longer maintaining underlying nonimmigrant status.
Examples may include individuals with:
- Prior overstays or status violations
- Unauthorized employment history
- Reliance solely on adjustment-based employment authorization (EAD)
- Pending adjustment applications filed after expiration of status
- Non-dual intent classifications such as TN, F-1, J-1 or B-1/B-2 status
The policy specifically acknowledges dual intent classifications such as H-1B and L-1 status, which generally permit individuals to pursue permanent residence while maintaining temporary status. However, USCIS notes that maintaining lawful status in a dual intent category alone may not automatically result in a favorable exercise of discretion.
Practical Considerations for Employers and Foreign Nationals
The policy introduces additional strategic and procedural considerations for employers and foreign nationals pursuing permanent residence through adjustment of status.
Items that may warrant review include:
- Maintenance of underlying nonimmigrant status
- Reliance on adjustment-based work authorization
- Prior immigration status history
- Timing of adjustment filings
- Documentation supporting positive discretionary factors
- Whether consular processing may be a more appropriate strategy in certain cases
For many employers and applicants, adjustment of status has historically provided greater continuity and stability by allowing foreign nationals to remain and work in the United States while permanent residence applications are pending. Increased scrutiny of discretionary factors may therefore create additional uncertainty for some applicants who previously viewed adjustment of status as a routine final step in the green card process.
In light of the policy shift, employers and applicants may also consider preparing supplemental discretionary support materials for inclusion with Form I-485 filings. Depending on the case, this may include evidence of:
- Long-term lawful presence in the United States
- Employment history and economic contributions
- Family ties and community involvement
- Humanitarian or hardship considerations
- Evidence of good moral character
- Compliance with prior immigration obligations
In employment-based cases, supporting documentation from employers regarding the employee’s role, specialized knowledge, operational importance or broader business impact may also become increasingly relevant under the new discretionary framework.
USCIS has also indicated that additional guidance addressing specific adjustment categories or applicant populations may be issued in the future.
WNJ will continue monitoring developments related to adjustment of status adjudications and related USCIS guidance.
