USCIS Reaffirms Discretionary Nature of Adjustment of Status in the U.S. in Newly Released Policy Memorandum

On May 21, 2026, the U.S. Citizenship & Immigration Service (USCIS) issued a Policy Memorandum, emphasizing that Adjustment of Status (AOS), i.e. applying for U.S. Permanent Residence from within the United States, is not an entitlement, but rather a discretionary, extraordinary form of relief.

Current Adjustment of Status Policies and Requirements

Under current statute, regulation, and policy, certain applicants for U.S. Permanent Residence may apply to adjust their status in the U.S. with USCIS provided they, generally, were inspected and admitted in the U.S., have maintained status in the U.S., and are not subject to inadmissibility grounds that would trigger denial of their application. The process permits those eligible applicants to receive U.S. Permanent Residence without leaving the U.S., as opposed to applying for an Immigrant Visa at a U.S. Consulate abroad. The process remains subject to eligibility review, including a security background check.

By contrast, certain applicants may be required, or voluntary opt, to process their U.S. Permanent Residence application at a U.S. Consulate abroad, subject to an in-person appearance. Recently, there have been significant staff reductions within the U.S. Department of State (“DOS”), which has increased backlogs at the U.S. Consulates causing processing delays, and DOS has also suspended processing immigrant visa applications for individuals from 75 countries (75 Country Immigrant Visa Suspension).

For these reasons, if eligible, many individuals residing in the U.S. opt to adjust status in the U.S., a process not requiring international travel.

New Adjustment of Status Policy

In its newly released policy memorandum, USCIS states that AOS allows applicants to bypass the standard immigrant visa process abroad at the U.S. consulates and therefore should be granted sparingly. USCIS indicates that AOS is not intended to replace consular processing by the DOS.  The USCIS will now consider AOS requests as “discretionary” and an “’extraordinary act’ of administrative grace.”

The memo underscores and emphasizes the extraordinary relief that AOS provides, and the responsibility of DOS consular and USCIS officers to conduct a totality-of-the-circumstances analysis in evaluating an AOS request. This analysis requires adjudicators to carefully weigh immigration violations (e.g., overstays, unauthorized employment); compliance with visa or parole conditions; fraud, misrepresentation, or false testimony; conduct inconsistent with stated purpose of entry; and moral character and overall equities (family ties, humanitarian factors).  With this new memorandum, negative factors, particularly failure to depart or attempts to circumvent consular processing, may be used by adjudicators to weigh heavily against approval.

The memo further stresses that U.S. immigration law generally expects individuals to depart the U.S. and complete immigrant visa processing abroad, even where individuals are maintaining a temporary nonimmigrant status in the U.S. with dual intent (i.e., H-1B/H-4 and L-1/L-2 workers).  This means that dual intent status can still exist, i.e. these nonimmigrant workers can intend to immigrate; however, USCIS will “shift” its AOS review from approving, unless inadmissible, to denying in favor of Consular Processing, unless “extraordinary” and “adverse factors” justify AOS in the U.S.

Historically, individuals in nonimmigrant status with dual intent (H-1B/H-4 and L-1/L-2) were among the lowest-risk AOS applicants. However, under the memo, fully compliant applicants could theoretically not be allowed to adjust status and would be required to consular process, as a matter of discretion.

What next?

USCIS has not indicated when AOS applicants will no longer be able to apply within the U.S. nor provided information on the impact of AOS applications already in progress at USCIS.

Instead, the memo concludes that USCIS will “review the various pathways to discretionary adjustment of status as well as discrete population of aliens” and “may provide policy guidance specific to certain adjustment of status categories or discrete populations” to “aid officers in identifying those applications that may or may not” be processed in the U.S.

Clark Hill will continue monitoring developments and share updates as they become available.  Please feel free to contact a member of Clark Hill’s Immigration Law Practice, and remember to subscribe to our newsletter receive future Immigration Law alerts directly to your inbox.