As we indicated in an earlier news alert, on May 22, 2026, USCIS released a Policy Memorandum (PM) reminding its officers that adjustment of status (AOS) is a matter of discretion and an “extraordinary act” of “administrative grace” that should not be used to allow foreign nationals to avoid the “prescribed, ordinary consular visa process” abroad. Since making that announcement, USCIS appears to have walked it back, now describing the PM as a “reminder” to officers of their discretionary authority, and not as an actual change to the process or standards in the adjudication of AOS applications.
The PM reminds USCIS adjudicators to weigh both positive and negative factors and to consider the totality of circumstances when deciding whether an AOS application should be approved as a matter of discretion. While the memo does not invalidate an approved petition or application, or automatically require denial of a pending application, it instructs adjudicating officers to apply heightened scrutiny when considering whether to approve a case. If an officer denies an AOS application, the PM reminds them to issue a written decision identifying the positive and negative factors considered and include an explanation of why the negative factors outweighed the positive ones.
Anecdotal reports shared by other immigration lawyers indicate that AOS applicants are now being asked at their personal interviews why they chose AOS rather than consular visa processing, and what hardships would prevent them from returning to their home country to consular process their immigrant visas. The officers are also focusing on applicants’ travel history to the U.S., activities in the U.S., and decision to remain in the U.S. although their underlying nonimmigrant status may have expired. Questions about personal reputation, family ties, and contributions to the community have been reported, in addition to proof of “favorable factors” in support of adjustment of status, such as length of U.S. residence, stable and lawful employment, education, and family caregiving.
Individuals who have not filed their AOS applications should confer with experienced immigration counsel regarding their eligibility, especially for individuals who entered as tourists, overstayed their nonimmigrant status, engaged in unauthorized employment, or have been arrested. Individuals who are currently on L or H-1B nonimmigrant visas (dual intent nonimmigrant visas) and do not have any of the negative factors noted above, although likely to be good candidates for AOS, should also consult with legal counsel. Individuals on other nonimmigrant visas who do not have any of the negative factors noted above may also be good candidates. But a decision to file adjustment of status should be done in consultation with legal counsel.
Individuals with pending AOS applications should consult with their attorney to determine if they may be impacted by the PM. Depending on their nonimmigrant status and individual circumstances, some applicants may want to interfile supplemental evidence of favorable equities such as reference letters from employers, professors, neighbors, or community leaders; evidence of education, employment, or training in fields aligned with U.S. national interests; school transcripts showing strong academic performance; filing of US tax returns; and evidence of civic or charitable contributions or other community service. Proof of family ties to the U.S. may also be helpful according to the PM. Applicants should be prepared to explain why they chose AOS and not consular processing. Individuals who filed an AOS application shortly after entering the U.S. or allowed their underlying nonimmigrant status to expire may be subject to increased scrutiny.
AOS applicants who have been scheduled for an interview should be reviewing their cases with their attorneys. If the AOS application has been pending for some time, presenting new documentation of positive equities to supplement the application and preparing for the new focus of questioning at the interview will be important to ensure a successful result.
The information provided in this article is for general informational and educational purposes only, and does not constitute legal advice. Reading this article or contacting us through it does not create an attorney-client relationship. Because immigration law and policies are constantly changing, the information on this website may not reflect the most current developments. Please consult a licensed and experienced attorney before taking any action based on this content.