USA
The May 2026 USCIS memo on adjustment of status.
On May 21, 2026, USCIS issued a policy memorandum on adjustment of status, the way to apply for a green card from inside the US on Form I-485. The memo reminds officers that adjustment is "a matter of discretion and administrative grace," so meeting the requirements does not by itself mean approval. USCIS calls that its "consistent and longstanding approach."
Adjustment still exists, and you can still file. The memo changes the weight officers give to staying in the US. It tells them to count it against a nonimmigrant or parolee who stays to adjust instead of applying through a consulate abroad. An applicant may need "unusual or even outstanding equities" to offset it, meaning strong positive factors such as family ties in the US. How strictly officers apply the memo, and whether a court blocks it, is not yet clear.
This is not a moment for panic or for false comfort. It is entirely possible that far fewer inside-US adjustment cases get approved going forward. Below is what the memo does, what is still unknown, and what to do now.
What the memo does
The memo reminds officers that adjustment under INA section 245 is a discretionary favor rather than a right, and USCIS says it is reaffirming that approach. It leans on decades of case law, from a 1974 immigration appeals board decision to the Supreme Court in Patel v. Garland, describing adjustment as a matter of grace.
The practical line is blunt: being eligible is not the same as being approved. The memo treats not leaving the US as expected, and avoiding the ordinary consular process, as factors against a nonimmigrant or parolee who adjusts. It says the applicant may need "unusual or even outstanding equities" to offset them, and that a record with no negative factors does not, by itself, show such equities. Officers are told to weigh your whole record case by case. They can hold the choice to adjust inside the country against you where processing at a consulate abroad was an option.
In short, USCIS has given its officers a broad reason to say no where an applicant could have gone through a consulate abroad.
What is still unknown
Here is the honest part: no one yet knows how far this goes. The statute itself, INA section 245, has not changed, and adjustment has not been formally abolished. But applied aggressively, the memo could sharply cut how many inside-US cases are approved.
USCIS has also said that guidance for specific categories may follow, and individual officers will apply the new tone differently. On October 5, 2026, unions, faculty associations, immigrant advocates and individual applicants sued in federal court in Massachusetts, asking the court to block the memo and set it aside. The court had not ruled as of October 19, 2026. Treating this as "nothing really changed" would be a mistake. So would assuming the door is now shut. The truth right now is that it is unsettled.
The factors weighing against you
Adjustment has always meant balancing the good against the bad in your record. The memo tells officers to weigh all of it, and it counts staying in the US instead of using a consulate as a negative for most nonimmigrants and parolees. Positive factors like family ties, long residence, and good moral character still count. A denial on discretion has to explain in writing why the negatives outweigh them. The factors most likely to sink a case:
- Status violations - working without permission, breaking the terms of your visa or parole, or letting status lapse.
- Overstays and failure to depart - staying past the time you were admitted or were expected to leave.
- Fraud or misrepresentation - false statements to USCIS or another agency, past or present.
- Adjusting when a consulate was available - the memo treats consular processing abroad as the ordinary route.
- Conduct against your stated purpose - acting at odds with the intent behind your original visa or parole.
Who is most exposed
The memo does not hit everyone equally.
- Most at risk: anyone who overstayed or violated status, parolees who were expected to depart, people who worked without permission, and cases with any fraud or misrepresentation in the file.
- Less exposed, but not safe: people in lawful dual-intent status with clean records and real equities. The memo does not list which categories have dual intent. The H-1B and L-1 have it under the statute, and the O-1 rules let an O-1 holder seek a green card at the same time. The memo says adjusting "is not inconsistent with" dual-intent status, but that holding it "is not sufficient, on its own."
- Not subject to discretion: refugees, and people adjusting under the special laws Congress passed for certain Nicaraguans and Cubans, Haitians, and Liberians. If they meet every requirement, USCIS must approve, and this memo does not change that. Asylees and VAWA self-petitioners are not on that list; their adjustment stays discretionary.
What to do now
The smart first step now is a strategy consultation, before you file anything or make a decision. A case that looked routine a few months ago may need a different approach today, so it is worth having an attorney review your situation before you act.
Concretely:
- If you have a case pending, have it reviewed and supplement it with strong proof of your equities before any interview.
- If you are about to file, get advice first, and weigh adjusting inside the US against processing at a consulate abroad for your specific category.
- Document your equities now - family ties, time in the US, work history, community roots, and good moral character.
- Be fully honest with your attorney about any overstay, status gap, or past issue, so it can be addressed head-on rather than surfacing later.
Adjustment of Status Memo Common Questions
No. The statute still allows adjustment of status, and Form I-485 can still be filed. Officers have long been able to deny adjustment on discretion. The May 2026 memo tells them to count staying in the US, instead of using a consulate, against most temporary-visa holders and parolees, so approval is less predictable.
Yes, filing is still allowed. Meeting the requirements never guaranteed approval where adjustment is discretionary. What changed is the weight: officers are told to count staying in the US instead of using a consulate against the applicant, with exceptions such as dual-intent status. Get case-specific advice before filing, rather than assuming a case is safe.
There is no one-size answer, and that uncertainty is the point. It depends on your category, your record, and your risk tolerance. Some clean, strong cases may want to move; others may need to strengthen the file or consider consular processing first. Talk to an attorney before deciding.
Yes, and a challenge is already pending. The memo is policy guidance for USCIS officers; it does not change the statute. A lawsuit filed on October 5, 2026 in federal court in Massachusetts asks the court to block the memo and set it aside. No ruling had been issued as of October 19, 2026.
Only a few adjustment routes are free of discretion: refugee adjustment and three laws for certain Nicaraguans and Cubans, Haitians, and Liberians. There USCIS must approve a qualified applicant. Asylee and VAWA adjustment stay discretionary. Filing to adjust is consistent with dual-intent status, but the memo says that status is not enough on its own.
The heaviest negative factors are overstays, working without permission, other status or parole violations, and any fraud or misrepresentation. The memo tells officers to weigh these seriously, so address any weak spots with your attorney before you file.
Sources
- Policy Memorandum PM-602-0199: "Adjustment of Status is a Matter of Discretion and Administrative Grace"U.S. Citizenship and Immigration Services · May 21, 2026
Show all 5 sourcesShow fewer sources
- Immigration and Nationality Act § 245 (8 U.S.C. § 1255), Adjustment of statusCornell Law School, Legal Information Institute
- American Association of University Professors v. Mullin, No. 1:26-cv-14527 (D. Mass.), docketCourtListener (Free Law Project) · Filed October 5, 2026
- Policy Manual, Volume 7, Part A, Chapter 10: Legal Analysis and Use of DiscretionU.S. Citizenship and Immigration Services
- Immigration and Nationality Act § 209 (8 U.S.C. § 1159), Adjustment of status of refugees and asyleesCornell Law School, Legal Information Institute
6–12 months
$12,500–$17,500
