New USCIS Memorandum Issued on May 21, 2026 Asserts that I-485 Adjustment of Status Applications Should Only be Approved in Extraordinary Circumstances, Suggesting that Most Nonimmigrants Should Instead Seek Green Cards at the U.S. Consulates Abroad

In a very significant change to existing policy, on May 21, 2026, USCIS issued an unsigned, unattributed memorandum purporting to re-frame the discretionary component of adjustment of status applications as an act of grace under INA Sec. 245(a). Specifically, it asserts that USCIS officers must decide whether I-485 adjustment of status applicants deserve approval of their green card based on “discretion and administrative grace, on a case-by-case basis.”  The new memorandum states that individuals “paroled into the United States or admitted into the United States as nonimmigrants” are expected to “depart rather than pursue adjustment of status” and should instead consular process their green cards, with limited exceptions for extraordinary circumstances. 

USCIS officers are directed to focus on the following equities when weighting the positives against any negatives in the discretion analysis while adjudicating I-485 adjustment of status applications: 

• Immigration compliance history: violations of nonimmigrant status conditions or parole terms are treated as significant negative factors 

• Failure to depart: if an applicant remained in the U.S. beyond the authorized period rather than pursuing consular processing abroad, this weighs against them 

• Fraud or misrepresentation: any prior false testimony or fraud with USCIS or any government agency 

• Whether the original admission or parole was lawfully obtained under the laws and policies in effect at the time 

• Conduct inconsistent with visa or parole purpose: especially activity that suggests the applicant always intended to remain permanently, when they could have pursued an immigrant visa abroad 

• Family ties, moral character, and other positive equities: these must be weighed against the negatives, but the absence of adverse factors alone is not sufficient to show the “unusual or outstanding equities” needed to tip the balance 

The United States Congress has repeatedly emphasized the primary policy of the U.S. immigration system is family unity; allowing applicants to adjust status minimizes travel, expense and time apart. This new memorandum departs from those goals significantly.  

The memorandum also lacks clarity and has inconsistencies, while failing to explain how these changes will be implemented. As of today, it is unclear whether this memorandum applies retroactively to I-485 applications already filed and pending with USCIS. It also remains unclear exactly how officers will weigh these different positive and negative factors. Having said that, the memorandum does NOT change any laws or regulations and does NOT eliminate adjustment of status as a legal avenue to apply for a green card. Section 245 of the Immigration and Nationality Act continues to authorize adjustment of status in the U.S. for eligible applicants physically present in the U.S., including family-based applicants, employment-based applicants, and many others. The new policy merely gives USCIS officers more discretion in denying green cards based on the factors noted above, meaning I-485 applicants should expect additional scrutiny of their applications. As a result, I-485 applicants may now need to submit additional evidence to USCIS to demonstrate they deserve approval based on positive factors in their case.  

MMH remains committed to insisting the government follow the rule of law. We will continue to take any necessary and appropriate steps for our clients’ best interests in a constantly changing and challenging legal and political environment. We will keep you informed of any further government guidance on implementing this new policy, and how to best position our clients to continue receiving lawful permanent residency through adjustment of status.