The Policy Memorandum published by USCIS on May 21, 2026 has been a topic of much discussion among immigration lawyers, not to mention individuals who have filed—or plan to file—applications for adjustment of status (“AOS”).
We read the memorandum as a policy-direction document that reframes how officers may exercise discretion in AOS cases under INA §245. While it does not amend the statute, create new inadmissibility grounds, or eliminate existing adjustment pathways, it does emphasize that adjustment is discretionary relief that should not routinely replace immigrant visa processing through a U.S. consulate abroad.
USCIS appears to be directing officers to scrutinize more closely cases involving individuals who entered the United States temporarily, remained in the country, and later sought permanent residence through adjustment rather than consular processing. In particular, remaining in the United States after temporary admission or parole is framed as a potentially significant adverse discretionary factor – whereas before it was a violation of status that was typically forgiven in immediate relative family-based immigration cases.
At the same time, the guidance expressly preserves individualized adjudication and totality-of-the-circumstances review, and confirms that dual-intent classifications, including H-1B and L-1 status, remain legally permissible. As a result, adjustment of status has not been abolished or limited solely to extraordinary cases. What appears to be changing is the discretionary posture applied in closer cases, which could indicate that the current administration intends to step up efforts to curb legal immigration to the United States.
I. What the Memorandum Actually Says
A central theme throughout the memorandum is that adjustment of status is “a matter of discretion and administrative grace” and should be viewed as “extraordinary relief.” That premise is not entirely new. Existing USCIS Policy Manual provisions already describe adjustment as discretionary and require officers to weigh favorable and adverse equities.
The memorandum relies heavily on prior precedent decisions and repeatedly stresses that Congress expected many nonimmigrants and parolees to depart the United States once their temporary purpose concluded. It further suggests that choosing adjustment instead of consular processing may itself weigh negatively in discretionary review, particularly where immigrant visa processing abroad remained available.
The language regarding failure to depart after temporary admission or parole is notably strong. USCIS states that such conduct may be “highly relevant” to discretion, especially where an individual intended permanent residence while remaining in the United States.
Officers are also reminded to conduct robust discretionary analysis by evaluating immigration violations, fraud, unlawful employment, status violations, and conduct inconsistent with prior representations made to immigration or consular officials.
Importantly, dual intent is expressly preserved. USCIS confirms that seeking adjustment is not inconsistent with maintaining lawful status in classifications such as H-1B and L-1. Still, lawful status alone is described as insufficient to guarantee favorable discretion.
The final section signals that future guidance may target “certain adjustment of status categories or discrete populations,” suggesting this document may serve as a broader policy framework for later category-specific restrictions or adjudicative standards.
II. Does the Memorandum Change Existing USCIS Policy?
From a formal legal perspective, probably not substantially. Nothing in the guidance amends INA §245, changes existing regulations, creates new eligibility requirements, or eliminates adjustment categories. It also repeatedly acknowledges that adjustment decisions remain case-specific and dependent on totality-of-the-circumstances review.
Many of the underlying principles already appear in the USCIS Policy Manual, including the concepts that adjustment is discretionary, immigration violations may be adverse factors, and unusually strong equities may be required in problematic cases.
Operationally, however, the practical impact could be significant. Historically, many family-based and employment-based adjustment cases were treated primarily as eligibility determinations unless substantial negative factors existed. The new emphasis reframes the decision to remain in the United States and pursue adjustment, rather than to leave and pursue consular processing, as potentially adverse in and of itself.
This new guidance also elevates failure to depart after temporary admission or parole into a more prominent discretionary concern. In practical terms, officers may increasingly view consular processing as the preferred baseline while treating adjustment as exceptional relief requiring stronger affirmative equities.
III. Impact on Pending Adjustment Cases
The guidance does not specifically address pending applications, and no grandfathering provision is included. This raises serious questions for individuals who have already filed for AOS. Because it appears to function as adjudicative direction rather than a substantive rule change, officers may apply it immediately to cases that remain undecided, but that is far from certain.
We anticipate the practical impact will likely vary depending on the adjustment category. Marriage-based cases involving B-2 entrants, ESTA entrants, parolees, or applicants with overstays may receive increased scrutiny concerning immigrant intent, failure to depart, and the availability of consular processing abroad. That does not render such applicants statutorily ineligible, but discretionary denials could become more common in marginal cases. We could also see an increase in requests for evidence (RFE) and notices of intent to deny (NOID).
Employment-based applicants in dual-intent classifications may be less affected because the guidance expressly preserves dual intent. Individuals who maintained lawful status and complied with visa conditions likely remain comparatively strong discretionary candidates.
Parole-based adjustment cases may face the greatest uncertainty. USCIS repeatedly emphasizes that parole is temporary and that parolees are generally expected to depart the United States. However, no specific parole programs or populations are identified.
The memorandum also leaves unanswered whether already-interviewed cases, supervisory recommendations, or applications awaiting visa availability could be reevaluated under the new framework.
IV. Impact on Future Adjustment Cases
Looking ahead, applicants should likely expect more extensive discretionary review, including additional RFEs and greater scrutiny regarding immigrant intent and the decision to pursue adjustment instead of consular processing. Positive equities may take on increased importance. For example, the memorandum repeatedly references “unusual or outstanding equities,” including family hardship, lengthy lawful residence, military service, community ties, employment history, humanitarian concerns, rehabilitation, and national-interest considerations.
The overall direction appears designed to steer at least some intending immigrants toward immigrant visa processing abroad where feasible, although no categorical rule requiring consular processing has been created.
Bottom-Line Legal Assessment
The new guidance does not alter the statutory requirements for AOS under INA §245. Applicants who remain statutorily eligible today continue to remain eligible despite this apparent shift in policy.
The significance of the memorandum instead lies in how USCIS may choose to exercise discretionary authority moving forward. Officers are clearly being directed to treat adjustment as exceptional relief and to view reliance on adjustment, rather than consular processing, as a potentially adverse factor in many cases.
How far this shift will ultimately extend remains uncertain. Much will depend on whether USCIS formally incorporates this language into the Policy Manual, issues category-specific guidance, or faces judicial limitations on its interpretation of discretionary authority.
This Policy Memorandum likely will not be the final word on how AOS cases will be adjudicated under the current administration. We expect it will be subject to legal challenges in short order, and whether it ultimately survives judicial scrutiny is far less certain than USCIS’s language may suggest. Federal courts have historically afforded immigration agencies substantial discretion in adjustment adjudications, particularly where Congress expressly used discretionary language in INA §245. However, that discretion is not unlimited. If USCIS officers begin relying on the memorandum to issue broad categorical denials based primarily on an applicant’s decision to pursue adjustment rather than consular processing, challengers will likely argue that the agency is effectively imposing new eligibility restrictions Congress never enacted. Plaintiffs may also contend that the policy operates as de facto rulemaking without notice-and-comment procedures required under the Administrative Procedure Act, particularly if the memorandum is applied uniformly rather than through genuine individualized adjudication. For that reason, while portions of the memorandum will likely survive because USCIS unquestionably retains discretionary authority, more aggressive applications of the guidance could face substantial litigation risk, including requests for preliminary injunctive relief and temporary restraining orders in federal court.
It will be important for foreign nationals pursuing permanent residence in the United State to stay apprised of current events as the legal landscape surrounding AOS evolves in the coming months.
Please contact the attorneys at Polatsek Boheme & Wilkowski if you would like legal advice on how USCIS’s recent Policy Memorandum may impact your immigration goals. Initial consultations are free.
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