Understanding the May 2026 Policy Memorandum on Adjustment of Status

               On May 21, 2026, USCIS issued a Policy Memorandum 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.”  The Memorandum is directed to USCIS personnel as guidance in deciding on applications for Adjustment of Status.  Although the Memorandum does not change the law in any substantive way, it is likely to affect green card applicants and their probability of success.  While the Memorandum is very recent and its effects remain to be seen, this article intends to explain its meaning and implications.

The Subject of the Memorandum

               In general, an immigrant can obtain a green card in one of two ways.  The first way is the “ordinary consular visa process,” whereby a person applies from his or her home country through the National Visa Center, with the ordinary application being an electronic DS-260.  The successful applicant will interview in one’s home country and enter the U.S. with a green card.  The second way to obtain a green card is available to aspirants who have already been admitted or paroled into the US and presently have legal immigration status.  In those cases, the application is an I-485, Application to Register Permanent Residence or Adjust Status.  In the regular I-485 process, the applicant remains inside the US, interviews at a USCIS office, and receives a green card as his or her status has been adjusted to lawful permanent resident.
               The latter process, the I-485 process, is the subject of the Memorandum.

The Main Idea of the Memorandum

               In a nutshell, the Memorandum states that Adjustment of Status is an “extraordinary remedy” and an exception to the “ordinary” process.  The Memorandum does not impose any categorical rule; it merely directs USCIS officers to be parsimonious in granting I-485s.  It seeks to encourage people who are present in the US to return to their home countries, file DS-260s through the Consular Electronic Application Center, and re-enter the US with green card in hand.  Ultimately, the Memorandum leaves decisions in the hands of USCIS officers.  But the message to them is clear: “the discretionary approval of such a request [to adjust status] is extraordinary.”

Likely Effects

               This section will opine on how the Memorandum might affect different specific, hypothetical scenarios.  It is not intended as legal advice and should not be relied upon in making any decisions about immigration applications.

Scenario #1:  Man enters the country on a B2 visitor visa.  He meets the love of his life, who is a US citizen, and they marry five months after Man entered the US.  Before Man’s authorized stay expires, he and his spouse contemporaneously file an I-130, I-485, and all the appropriate related documents.  The priority date on his I-485 precedes the expiration of his authorized stay.

               In the past, in the absence of fraud, Man’s I-485 would seem on fairly solid ground.  His “I-485 pending” quasi-status would provide a safe harbor of protection, and his marriage to a US citizen would all but guarantee the approval of his application.  However, this scenario seems to be one at which the Memorandum directly aims.

Scenario #2: Worker has an EB-1 visa and has remained in lawful status throughout his presence in the US.  When his priority date becomes current, he files an I-485.  His hope is to adjust status and receive a green card without leaving the US.  His EB-1 status does not expire while the I-485 is pending.

               Given that an EB-1 is an immigrant visa, meaning that the intent from the outset is to remain in the US and seek Adjustment of Status once a visa is available, applicants in this scenario should be able to continue pursuing their plan.  The Memorandum concedes, “USCIS acknowledges exceptions including . . . immigrant categories where only adjustment of status provides a pathway to permanent resident status”; and EB-1 seems to fall into such an exception.

Scenario #3:  Wife has been in the US for a decade and is on an H1B visa.  She marries, and her spouse files an I-130.  Wife files an I-485 and an I-765 before her H1B expires.  The I-765 is approved before the expiration of her H1B status, but her I-485 is pending as the H1B expiration approaches.

This is a scenario on which time will tell the Memorandum’s effect.  On one hand, the Wife continues to have lawful status through her H1B, and her employment authorization is bolstered by the approved I-765, which is based on the pending I-485.  On the other hand, however, a harsh application of the Memorandum’s guidance might lead a USCIS officer to conclude that legal status is not the point and that the applicant should pursue ordinary consular visa processing.

Scenario #4:  Citizen’s parents live overseas.  Citizen files an I-130 for each parent, and USCIS approves both petitions.  Parents file DS-260s, and their interviews are scheduled.

               The Memorandum has no bearing on these applications.  The same applies to spouses under the same circumstances.  This scenario describes the ordinary consular visa process, which is encouraged.

Scenario #5:  Woman enters the US illegally and over time lays down roots.  She marries a US citizen, and they have a child.  Her spouse files an I-130, which USCIS approves.  She then begins the DS-260 process and files an I-601A, Application for Provisional Unlawful Presence Waiver.  If the waiver is granted, Woman will return to her country of citizenship for her interview and re-enter the US when her application is approved.

               Again, because the Woman’s application is going through consular processing, the Memorandum does not appear to affect her process in any way.