USCIS / USCIS

The United States Citizenship and Immigration Services (USCIS) issued a significant new policy memorandum on May 21, 2026, emphasizing that applying for a green card from within the United States ("Adjustment of Status" or "AOS") is a discretionary benefit, one that should be granted as an "extraordinary act" of administrative grace.

American Community Media briefing panelists explained how this policy may affect employment-based, family-based, parole-based, and other adjustment applicants. USCIS spokesman Zach Kahler said in a press statement that his agency was "returning to the intent of the law to ensure aliens navigate our nation's immigration system properly. From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances."

"Nonimmigrants, like students, temporary workers, or people on tourist visas, come to the U.S. for a short time and for a specific purpose. Our system is designed for them to leave when their visit is over. Their visit should not function as the first step in the Green Card process," stated Kahler.

Jeff Joseph, president of the American Immigration Lawyers Association, said that his organization is looking for plaintiffs who would be harmed by the new policy.

Stricter scrutiny for applicants who:

• violated immigration status,
• worked without authorization,
• overstayed visas,
• entered on parole programs,
• or appeared to use temporary visas as a pathway to permanent residence.

What This Means for Applicants

USCIS May Deny Cases Even if Technically Eligible

USCIS has signaled that meeting the minimum legal requirements may no longer be sufficient for officers to grant AOS applications and clarified that foreign nationals will bear the burden of showing why administrative discretion should be favorably exercised. Officers are instructed to evaluate the totality of the circumstances in exercising that discretion.

Greater Focus on Immigration History

USCIS officers have been instructed to closely review:

• visa compliance,
• prior status violations,
• unauthorized employment,
• inconsistent statements,
• prior immigration filings,
• intent at entry into the United States.

Consular Processing May Become More Important

The memo strongly favors the traditional immigrant visa process through U.S. consulates abroad. USCIS may increasingly question why applicants are seeking permanent residence from within the U.S. rather than through consular processing.

Parole Programs Could Face Increased Scrutiny

Applicants who entered through humanitarian or public benefit parole programs may face additional examination regarding whether adjustment of status is appropriate.

Dual Intent Categories Still Protected, but Maintaining Dual Intent Status Alone Will Not Warrant a Favorable Exercise of Discretion

USCIS confirmed that applying for adjustment is not inherently inconsistent with maintaining lawful status in recognized "dual intent" visa categories such as H-1B or L-1. However, maintaining valid dual intent status alone will not guarantee a favorable exercise of discretion in granting an AOS application. USCIS officers are instructed to still weigh all positive and negative factors, including family ties, immigration status and history, the foreign national's moral character, and any other relevant factor.

Practical Considerations and Risks

With this memo, employers and foreign nationals applying for adjustment of status should be prepared for:

• increased Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs),
• increased discretionary denials,
• longer adjudication times, and
• greater focus on intent and equities.

Recommended Action Items for Employers and Individuals

For Individuals

• Maintain lawful immigration status whenever possible.
• Avoid unauthorized employment.
• Preserve documentation showing compliance with visa terms.
• Be consistent in all immigration filings and interviews.
• Consult counsel before international travel or filing AOS applications.
• Carefully evaluate whether consular processing may be strategically preferable.

For Employers

• Review foreign national employee histories before filing AOS applications.
• Assess whether any prior status gaps or violations exist.
• Prepare stronger discretionary evidence packages.
• Document compliance with visa sponsorship obligations.
• Anticipate longer processing timelines and increased scrutiny.

For Applicants Using Parole Programs

• Obtain individualized legal review before filing adjustment applications.
• Prepare evidence supporting humanitarian equities, family ties, and positive discretionary factors.

Strategic Considerations

This memorandum reflects a broader policy shift toward:

• stricter discretionary adjudications,
• increased emphasis on immigration compliance, and
• restoration of consular processing as the preferred immigration pathway.

Although the memo does not create new law, it provides adjudicators with a framework that may lead to more aggressive discretionary denials in adjustment cases. Employers and applicants should expect USCIS officers to conduct more detailed discretionary reviews going forward.

"If people get put into additional processing steps, they could get stuck outside the U.S. for months," Julia Gelatt, associate director of the U.S. Immigration Policy Program at the Migration Policy Institute, said. "This can get very expensive. It could put their job at risk, and it could mean long periods of family separation from their loved ones in the U.S."

Discover more at New India Abroad