USCIS’s New Memo on Adjustment of Status Will Probably Come to Nothing

5/23/2026

USCIS issued a Policy Memorandum on May 21 which is causing widespread panic. It’s called “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” PM-602-0199.

The gist of the memo is that USCIS apparently wants to route almost all adjustment of status seekers through consular processing at U.S. consular posts in their home country rather than through adjustment of status with USCIS (presumably after denying the adjustment of status application for those already in process, although this would encounter serious due process issues).

As necessary background, the vast majority of U.S. green card applications are either processed through USCIS on a Form I-485 (“adjustment of status” or “AOS”) if you are present in the U.S. or through consular processing at a U.S. consular post on a Form DS-260. Filing a Form I-485 (“adjustment of status”) has numerous advantages: the individual gets to remain in the U.S. during the processing time and has the ability to file for work authorization. Consular processing can also take longer, is subject to randomly imposed delays, and, of course, for domestic applicants, may require an inconvenient trip abroad for several weeks. Also, pursuant to the way U.S. immigration laws are written, if applicants have accrued at least six months of “unlawful presence,” leaving the United States can trigger a bar to returning of either 3 or 10 years.  

However, I believe that this memo will come to nothing for the following reasons.

1.     The new memo is very poorly supported.

The memo’s primary argument is that “While aliens who were inspected and admitted or paroled may request adjustment of status, as a general matter the discretionary approval of such a request is extraordinary given Congress’s intent that aliens should depart once the purpose for which they sought parole or nonimmigrant admission from DHS has been accomplished.” But then it provides no citations to any statute or even any statement of Congress to this effect. This is remarkable given that INA 245(a) has been on the books since 1952. If it was Congress’s intent that adjustment of status be treated as an extraordinary remedy, why has no member of Congress ever said so in the last 70 years? The words “extraordinary remedy” are also not found in the statute anywhere. This language appears to trace back to dicta from one Sixth Circuit case from 1967. In fact, the whole memo appears to be the result of KeyCiting that one Sixth Circuit case (although it has been cited in other circuits, including the Fifth).

It is true that adjustment of status, like many benefit requests, is “discretionary.” But this only means it can theoretically be denied for sui generis reasons not listed in the statute. It is also true that in the 1960’s and 70’s, the issue of the Immigration Service’s “discretion” in granting AOS was discussed more often than it is now, but this seems to be because most of the discretionary bases upon which these decisions were once made are now the subject of explicitly defined rules. For example, several old cases uphold discretionary denials on the vague notion of “preconceived intent to establish permanent residence via the nonimmigrant route.” But “preconceived intent” is now almost universally discussed as a form of misrepresentation, requiring that an individual make a specific sworn statement to a consular or border officer and then, within a defined period of time after entry (such as 90 days), do something that overtly contradicts that statement. See 9 FAM 302.9-4(B)(3)(g)(2). “Preconceived intent” has therefore mostly been subsumed under the “admissibility” requirement for AOS (specifically, the ground for misrepresentation).

Similarly, working without authorization was once a potential basis for discretionary denial, but this was before work without authorization became its own basis for ineligibility under INA 245(c).

More importantly, the fact that USCIS still has (now rarely invoked) discretion does not logically lead to the conclusion that USCIS can arbitrarily deny any adjustment of status for any reason, nor does it legally support a blanket denial policy. 

The memo even attempts to point to specific limitations on adjustment of status (such as those in 245(c)) to draw the conclusion that adjustment of status as a whole is an extraordinary remedy. (“Congress established significant limitations on the eligibility of aliens to adjust status that do not apply to aliens seeking immigrant visas and admission from outside of the United States.”) But the logic is self-defeating. If congress provided specific limitations on adjustment of status (such as requiring that the applicant be admitted or paroled first), this just goes to show that adjustment of status for those who do meet the requirements is not today treated as an extraordinary remedy but a fairly mundane one. And it reinforces the conclusion that USCIS’s negative discretion is for extraordinary cases where all the regular boxes are checked but some other hurdle remains (like serious criminal behavior unusual enough that Congress hasn’t yet thought to list it). 

2.     It will almost certainly get shot down in court

An agency does not have the authority to change an established policy at will for any reason. And a court will find an agency's decision to be “arbitrary and capricious” under the Administrative Procedure Act when a reasonable explanation for the agency's decision cannot be discerned. See Gulluni v. Levy, 85 F.4th 76, 82 (1st Cir. 2023) (quoting Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

There is no question that domestic adjustment of status is an established policy. It has been reported that nearly 1.2 million I-485s were pending in the final quarter of FY2025, with an ongoing 89.6% approval rate. https://www.americanimmigrationcouncil.org/uscis-immigration-filing-trends/  

The memo is full of language which is intended to reassure courts that it is merely a “reminder” of what the proper procedure has always been and officers are not being ordered to decide any case in a particular way. “This policy memorandum is intended solely for the guidance of USCIS personnel in the performance of their official duties, but it does not remove their discretion in making adjudicatory decisions.” But if the number of I-485 approvals goes from nearly 1.2 million per year to zero, or even substantially less, no court will believe that this is not intended as a binding policy change. 

The memo attempts to spin adjustment of status as a rare exception to the “regular” procedure of consular processing. This may have been true in 1960 (who’s to say?), but it’s preposterous to portray adjustment of status as exceptional in 2026 when nearly 1.2 million cases are filed each year.

Because it is absolutely a binding policy change, the courts will ask if the logic of the memo gives a reasonable explanation for the abrupt change or whether the change is “in accordance with the law.” The agency will be forced to back up its claims that adjustment of status has always been considered an exceptional and not a “regular” procedure adjudicated mainly on well-defined criteria. It will be forced to back up the claim that USCIS officers need to be freed up to handle other matters and that this justifies a vast disruption in expensive benefit proceedings.

The courts will also ask whether the new policy is “in accordance with the law.” They’ll wonder why, if it’s true that an “alien’s failure to comply with the conditions of their nonimmigrant admission or parole and an alien’s failure to depart as expected,” are as crucial as USCIS now claims (citing case law from the 1960’s), Section 245 merely requires an “admission or parole” and that the applicant be in lawful status “on the date of filing the application for adjustment of status.”

The court will additionally note that much of what USCIS now wishes to rely on as discretionary factors has already been precluded by Congress in its updated rules and exceptions for misrepresentation, work without authorization, etc. For example, in 2026 an officer who denies an immediate relative adjustment applicant “in his discretion” for work without authorization would be butting heads with clear congressional intent in 245(c)(2).  

See Matter of Khan, 17 I. & N. Dec. 508, 510 (BIA 1980) (“In this regard, we note that as of January 1, 1977, section 245(c) of the Act has expressly precluded certain aliens from adjusting their status if they engaged in unauthorized employment. … We decline to adopt a rule regarding the exercise of discretion which could in effect expand this statutory bar beyond the limits set by Congress and prevent adjustment of status to all aliens who engaged in unauthorized employment.”)

3.     USCIS officers may end up just ignoring this memo

U.S. federal agencies cannot create what are called “legislative rules”—rules binding on officers—without going through notice and comment procedures where they inform the public beforehand, give the public time to respond, and then publish responses to the public comments. In this case, the agency has bypassed notice and comment procedures, issuing this memo as “guidance,” rather than a binding policy. The reason agencies do this is to avoid having courts decide they’ve created an illegal legislative rule and throw it out. However, by framing it as “guidance,” or re-statement of present policy, the agency is forced to admit that it isn’t actually law and can’t be relied upon as a law.

Last year, USCIS issued a similar memo about naturalization which induced a similar panic. Supposedly naturalization applicants were going to have to do more than prove they hadn’t committed any crimes but affirmatively show they were valuable, contributing members of society. However, as far as we know, nothing changed. Naturalizations are still adjudicated the way they always have been. And one of the likely reasons is that USCIS leadership cannot order the officers to rule in a certain way or the rule becomes binding and therefore illegal (for violating the notice and comment rules). In other words, the officers mostly ignored the new naturalization policy, and it seems to have gone away. There is a strong likelihood that will also be the fate of the May 21 Adjustment of Status memo.