Posted May 26th, 2026 in Top Stories, Legal Insights with Tags Corporate Immigration, Immigration Law

What to Know About the New USCIS Adjustment of Status Policy

On May 22, 2026, without advance notice, the U.S. Citizenship and Immigration Services (USCIS) announced a change in its approach to adjudicating applications for permanent residence. Under its new policy, foreign nationals are largely required to seek permanent residence through the U.S. consular post abroad, rather than through an adjustment of status with USCIS, with very few exceptions. The announcement is limited in the guidance it provides in a policy memo, but here is what we know at this point:

What is the rationale behind this new policy memo?

The new USCIS policy memo reinforces the current Administration’s position that the adjustment of status process does not supersede the regular consular processing of immigrant (permanent resident) visas and that adjustment of status shall be granted only as a “matter of discretion and administrative grace.” The USCIS interprets this to mean that adjustment of status should be reserved only for extraordinary circumstances.

Further, in accordance with the policy’s reasoning, the policy memo indicates that requiring applicants to apply for permanent residence through the consular office abroad reduces the risk that denied applicants remain in the United States without authorization.

What constitutes an “Extraordinary Circumstance” under this new policy memo?

The memo does not define what constitutes “extraordinary circumstances.” However, it directs adjudicating officers to weigh all relevant factors and apply a totality-of-the-circumstances analysis when determining if an applicant meets the “extraordinary circumstances” threshold. The factors could include, but are not limited to, the following:

Any violations of immigration laws or the conditions of any immigration status held;
Current or previous instances of fraud or false testimony in dealings with USCIS or any government agency;
Whether any previous application for admission or parole violated the laws, regulations, and policies in place at the time;
Conduct after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole;
Misrepresentations made to consular or DHS officers when applying for a visa, admission, or parole;
Failure to comply with the conditions of nonimmigrant admission or parole;
Failure to depart the United States after completion of the temporary stay;
Family ties in the United States;
Immigration status and history; and
Applicant’s good moral character.

How does this change impact those in the United States in H or L status?

Those in the United States in H or L status have what is referred to as a “dual intent” immigration status. This means the law allows them to be temporarily present in the United States (in H or L status) while pursuing permanent residence. There are other statuses – such as B-1/B-2 (visitor), F-1 (student), TN (temporary workers under the United States-Mexico-Canada Agreement (USMCA)) – that require the individual to have non-immigrant, or temporary intent only. If such nonimmigrants have an immigrant or permanent intent when requesting an immigration benefit under their nonimmigrant visa category, they generally would not qualify for the benefit.

While dual-intent visa categories permit an individual to have a permanent intent, the policy memo specifically states that maintaining lawful status in a non-immigrant category is not, on its own, sufficient to warrant a favorable exercise of discretion. This suggests that being in H and L status may be a positive factor, although it is not determinative on its own.

Will USCIS still accept applications for adjustment of status?

It is important to note that the policy memo is directed to officers who adjudicate adjustment of status applications and provides guidance on how to determine whether such applications meet the “extraordinary circumstances” standard. It does not direct the USCIS to stop accepting adjustment of status applications. By statute, applicants have the right to file an adjustment of status application, and the policy memo does not override that statute.

How will this change impact adjustment of status applications that are pending with the USCIS?

While many other recent policy changes include language stating that the changes apply only to applications filed on or after the effective date of the change, such language is not included in this memo. This suggests that the new policy memo applies to adjustment of status cases pending with the USCIS. If it does apply to pending adjustment of status applications, applicants may expect to receive a Request for Evidence seeking documentation to support why adjustment of status – rather than consular processing – is warranted in their case. Alternatively, applicants may be asked for additional documentation during in-person adjustment of status interviews or thereafter.

May those with pending adjustment of status applications still travel internationally if they have advance parole?

While the memo does not ban travel on advance parole, it is important to note that if an application for adjustment of status is denied while an applicant is outside the United States, the advance parole would most likely be revoked at the time of denial, making reentry impossible unless an individual has a dual intent status.

Assuming the adjustment of status application is still pending after an applicant returns from foreign travel on advance parole, being admitted as a parolee means the applicant may have to show “unusual or even outstanding equities,” according to the memo, and the absence of adverse factors, by itself, does not demonstrate unusual or outstanding equities.

Will the new policy allow for the filing of an Employment Authorization Document (EAD)?

While nothing in the memo states that an individual may not apply for an Employment Authorization Document (EAD) as an interim benefit to the adjustment of status application, it is important to note that if an application for adjustment of status is denied, the EAD would most likely be revoked at the time of denial.

This policy change represents a significant shift in USCIS policy. Given the potential scope of this change’s impact, we can expect legal challenges. The courts may need to address whether the policy can be applied to pending cases and to what extent USCIS may change long-standing policy that applicants and practitioners have relied on for several decades. For these reasons, this is a developing situation that the Immigration Group at NJL is monitoring very closely. Please feel free to reach out to our team if you have additional questions.