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USCIS Adjustment of Status Memo: What It Changes and Why You Shouldn’t Rush to Decide
USCIS adjustment of status memo: what to understand before making a rushed decision
On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 on adjustment of status (AOS) — the process that allows certain applicants already in the United States to apply for lawful permanent residence without leaving the country to complete immigrant visa processing at a U.S. consulate abroad.
The press release accompanying the USCIS adjustment of status memo contained one line that drew a strong reaction from the immigration community: USCIS “will grant adjustment of status only in extraordinary circumstances.” That exact wording, however, does not appear in the text of the memorandum itself. It is an accompanying policy statement, not operational guidance for the officers who adjudicate cases. This distinction is key to reading the news correctly.
The key point to understand: this is not Congress amending U.S. immigration law. It is, however, a notable policy signal, because USCIS is emphasizing that AOS is a discretionary benefit, not a right that is automatically granted once an applicant meets the basic eligibility requirements.
What the new adjustment of status policy memo changes
Under the new memorandum, USCIS officers are directed to give closer scrutiny to discretion — the officer’s authority to weigh each case on its individual merits — when adjudicating adjustment of status applications. The memorandum cites Patel v. Garland (U.S. Supreme Court, 2022) to reaffirm an existing principle: AOS is a matter of administrative grace, not an automatic entitlement.
Specifically, officers are instructed to weigh the following factors:
- Past immigration violations or violations of the conditions of a prior visa.
- Fraud or misrepresentation to government agencies.
- Whether the applicant entered the United States lawfully and for the purpose of the visa used at the time of entry.
- Whether conduct after entry has been consistent with the purpose of the visa issued.
- Family ties, immigration history, and moral character.
In other words, meeting the legal requirements does not necessarily mean an application will be approved. USCIS may consider the full circumstances of a case, including why the applicant chose AOS rather than completing the immigrant visa process through a U.S. consulate abroad.
The memorandum also sets out exceptions: dual-intent visa categories (which allow holders to maintain temporary status while pursuing a green card) and cases in which AOS is the only available path. It also requires officers to provide a written explanation — covering both favorable and unfavorable factors — whenever they deny an application on discretionary grounds. This is a significant procedural safeguard.
Under this new approach, consular processing — obtaining an immigrant visa through the U.S. Department of State at a U.S. consulate abroad — is framed as the more ordinary route. USCIS describes AOS inside the United States as an exceptional form of relief, to be granted only when a case merits a favorable exercise of discretion.
What has not changed?
This news should not be read as “the United States has shut down adjustment of status entirely.”
As of this writing, Section 245 of the Immigration and Nationality Act (INA) — the legal basis for adjustment of status — has not changed. USCIS has not announced a suspension of all AOS applications, nor has it said that pending applications will be denied solely because of the new memorandum.
What has changed is how USCIS guides its adjudicating officers: from treating AOS as a relatively routine step in the green card process to treating it as a benefit that calls for more careful, case-by-case consideration.
The practical impact will therefore depend heavily on how USCIS implements the memorandum going forward, on additional guidance for specific categories of cases, and on whether legal challenges or litigation arise.
The numbers in context
According to U.S. Department of Homeland Security (DHS) data cited by The New York Times, approximately 1.4 million green cards were issued in 2024. More than 820,000 of those went through adjustment of status — that is, they were applied for inside the United States rather than at a consulate abroad. When a stricter standard of review is applied at this scale, knock-on effects are almost certain, even if no case is denied outright on the new grounds.
EB-5 adjustment of status: what it means for investors
EB-5 is not one of the classic dual-intent categories such as H-1B or L-1, but the nature of the program means most EB-5 cases remain at lower risk than the headlines suggest. The impact falls into three groups:
For EB-5 investors currently outside the United States. The memorandum has almost no direct effect. The default route for this group is consular processing at a U.S. consulate or embassy in their home country — the standard channel to which USCIS wants AOS cases to return. The memorandum may increase consular workloads and lengthen interview wait times, but it does not change the legal mechanics of this route.
For EB-5 investors already in the United States (on F-1, E-2, B-1/B-2, H-1B, L-1 or other status) who plan to file Form I-485. This group is directly affected. Their cases can remain legally eligible, but officers will look more closely at past visa compliance, the purpose of the original entry, and conduct in the United States. Especially sensitive are cases where the applicant entered on a short-term visitor visa and then switched to an investment-based category — a scenario that already required careful legal argument and now calls for even stronger documentation showing that the purpose of entry was consistent with the later intent to immigrate.
For Form I-485 applications already pending with USCIS. The memorandum does not require applicants to withdraw. However, major immigration law firms expect Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) to increase in the coming months, as officers document their discretionary analysis in more detail. Processing may slow. Every RFE received should be answered fully and on time.
Two issues immigration practitioners are watching
First, consular capacity. Consular processing is already overstretched in many countries; redirecting hundreds of thousands of additional cases into this channel could lengthen interview wait times and prolong family separation.
Second, legal challenges. A policy memorandum cannot override a statute enacted by Congress. Immigration law firms anticipate litigation if the memorandum is applied beyond the limits permitted under INA §245. Ultimately, the courts will decide the memorandum’s practical scope.
What should EB-5 investors do now?
First, avoid making decisions based on headlines alone. Withdrawing a case, changing travel plans, or switching from AOS to consular processing (or vice versa) can each carry different legal consequences and processing timelines, depending on each family’s circumstances.
Instead, review your case on an individual basis:
- Is your current immigration status in the United States being properly maintained?
- Have there been any periods of overstay, unauthorized employment, or violations of visa conditions?
- Does your case have favorable factors that need to be better prepared and more clearly documented?
- If your case has to be processed through a consulate, how would the timeline, travel risks, and ability to reenter the United States affect your family?
- For dependent children, is there a risk of aging out (turning 21 and no longer qualifying as a derivative on a parent’s case) or of disrupting their education plans?
Now is the time for investors to work more closely with their advisory firm and immigration attorney to reassess their filing strategy, rather than treating the new policy as an isolated procedural change.
IMM Group’s view
The new USCIS memorandum does not eliminate adjustment of status as a pathway, but it may significantly change how U.S. immigration authorities view and adjudicate it.
In our 21 years in investment migration, we have repeatedly seen administrative guidance generate far more media noise than real impact once cases reach adjudication. This time may prove similar, or it may not — and what separates the two scenarios is the quality of case preparation and choosing the right filing route from the outset.
For families planning a move to the United States, the key message is not to panic, but to be more careful in designing your filing strategy. When officer discretion is emphasized, the quality of case preparation, the consistency of your immigration history, and choosing the right processing route all become more important.
If you are planning to file for adjustment of status, have a pending Form I-485, or are weighing adjustment of status against consular processing, review your case early to find an approach that fits your family’s circumstances.
IMM Group
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IMM Group · International investment migration advisory since 2005 — IMM Group advises only on entrepreneur and investor programs and does not accept overseas labor placement or unskilled worker cases (EB-3 and similar).
