USCIS announced on May 22, 2026 a new policy to create confusion and fear for all immigrants within the United States. The new memorandum is titled: 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.
It appears that the memorandum has been carefully designed to create as much confusion and fear as possible within the entire non-US citizen population of the United States.
What a Worst Case Scenario would look like...
For those that have already filed an Adjustment of Status or that are planning to soon file for Adjustment of Status it's important to understand what a Worst Case Scenario may look like. For most the worst case scenario will be manageable, and there will not need to be any waivers to complete the process to obtain their Green Card via Consular Processing.
Where an Adjustment is denied, the the underlying I-130 or I-140 should still be approved by USCIS. The case may then be automatically forwarded to the National Visa Center to complete processing, or it may require the filing of an I-824 Petition for action on an approved case to trigger the movement of the case to the National Visa Center. From this point the case would be completed as a Consular Processing case as if it had been filed in this manner from the beginning.
Unless the Beneficiary or Applicant has been maintaining another underlying non-immigrant status inside the US all along, such as on an F-1, J-1, H-1b, L-1, etc they will need to depart the US upon the denial of their case in order to avoid accruing unlawful presence that would trigger a bar for future admission upon their departure for their Consular Processing interview.
For those that maintained their non-immigrant status, they should be permitted to remain in the US until departing for the Consular Processing interview, and their time outside the US should be limited to perhaps a month or so as they take the steps for the medical exam with the civil surgeon, attend their visa stamping appointments, and then return on their immigrant visa stamp.
The biggest factor for those that did not maintain their underlying non-immigrant status will be weather the Beneficiary or Applicant of the Adjustment of Status had +179 days of Unlawful Presence within the US prior to filing their Adjustment of Status. If they have less, then pivoting to Consular Processing and departing the US should not trigger a bar for future admission on an Immigrant Visa. Similarly if the Beneficiary or Applicant was younger than 18.5 years old when their Adjustment was filed their Unlawful Presence will have been limited due to their age and more forgiving treatment to minor children. The trouble here is that departure from the US will need to happen almost immediately upon the denial of the Adjustment the denial of an Adjustment of Status is not appealable in general. Then the Applicant or Beneficiary will need to wait outside the US until their case completes the Consular Processing steps, a process that can take months, and often years.
If the Applicant or Beneficiary has 180 days or more unlawful presence, more extreme remedies may be required, including an I-601(a) provisional waiver for unlawful presence or seeking Adjustment of Status in the EOIR Immigration Court system.
Every case will be unique, so it will be important to anyone going through Adjustment of Status to work with an immigration attorney so that they have a firm grasp on both their Best Case Scenario and the Worst Case Scenario.
Old Practice vs. New Policy
The old unwritten deal (for decades):
For decades, the deal was this: if you followed the rules, kept your status, got your I-130 or-140 approved, and waited your turn, your green card through adjustment of status was essentially a sure thing once your priority date became current. The officer reviewing your file mostly asked, "Does this person qualify?" If yes, approved. In other words, adjustment of status had become routine in practice. As long as you met the technical eligibility requirements, approval was nearly automatic. Discretionary denials were rare.
The new standard:
Eligibility is no longer enough. Worthiness is the new standard. The memo tells officers to actively scrutinize whether applicants deserve to bypass the consular process, not just whether they technically qualify.
What Specifically Changed
1. Staying in the US is now a negative factor. Previously, being in the US and applying for a green card here was unremarkable. Now, the memo frames it as going against Congressional intent — you're expected to leave and apply from abroad, and choosing not to is something you have to justify.
2. "No bad history" is no longer enough. Under prior practice, a clean record was essentially sufficient. The new memo explicitly states that the absence of adverse factors, by itself, does not demonstrate the "unusual or outstanding equities" needed for approval.
3. Who's most at risk: The people most exposed to a negative discretionary finding are those whose time in the country already shows a problem — visitors who entered on a B-1/B-2 tourist visa and then decided to stay, F-1 students who stopped studying or worked without authorization, and people who overstayed any temporary status.
4. More denials must now be written and explained. Officers are now required to issue detailed written denials explaining exactly why negative factors outweighed positive ones — which suggests USCIS is anticipating and preparing for more discretionary denials.
The Important Caveat
The memo is careful to note that the law itself hasn't changed — the discretionary authority always existed. USCIS is essentially saying "we're going to actually use the discretion Congress gave us, instead of rubber-stamping eligible applications." The memorandum explicitly reaffirms that the standard, expected pathway to lawful permanent residence is through ordinary consular visa processing abroad. The bottom line: the law is the same, but the culture of adjudication is shifting from "approve unless there's a reason not to" toward "deny unless there's a compelling reason to approve."
For many applicants — particularly employment-based cases with clean records — the practical impact may be limited. For others, especially those with any immigration irregularities in their history, the risk of denial is meaningfully higher.
According to the new USCIS policy, in "normal" circumstances people who want to become US permanent residents (get a green card) have to leave the US and go through a US consulate abroad. "Adjustment of status" is a shortcut that lets certain people already inside the US apply for a green card without leaving. This memo is about that shortcut.
What does the new memo say? USCIS is reminding its officers — and the public — of three key points:
- It's a privilege, not a guarantee. Even if you technically qualify for adjustment of status, you are not automatically entitled to it. Officers have the power to say no, and this memo tells them to use that power seriously.
- The default expectation is that you leave. If you came to the US on a visa or parole, Congress expected you to go home when it expired. Choosing to stay and apply for a green card instead goes against that expectation, and officers should treat that as a negative mark against you.
- You have to earn it. To overcome any negative factors (like overstaying a visa), applicants need to show "unusual or outstanding" positive circumstances — not just a clean record. Simply having no bad history is not enough on its own.
What do officers have to consider? When deciding whether to approve an application, officers must weigh the full picture, including:
- Any immigration law violations or visa overstays
- Fraud or dishonesty in dealings with the government
- Whether the person followed the rules of their visa or parole
- Family ties, moral character, and other personal circumstances
What happens if they deny someone? Officers must put the denial in writing and clearly explain which negative factors outweighed the positive ones.
What this means practically This memo signals that USCIS intends to be more selective about approving green card applications filed inside the US, especially for people who overstayed visas or were paroled in (including, potentially, those who entered through humanitarian parole programs). Expect more scrutiny and more denials going forward.
Note: This memo guides USCIS officers but does not create any legal rights for applicants.
