In yet another attempt to create fear and chaos within the immigration community, USCIS released a memo right before the long weekend reminding its officers that adjustment of status is a form of extraordinary relief. This comes despite decades of USCIS routinely adjudicating and approving adjustment of status applications as a normal part of the legal immigration process.

Individuals applying for a green card generally have two options. They can apply through a process called “adjustment of status” by filing Form I-485, Application to Register Permanent Residence or Adjust Status, with USCIS, or they can apply for an immigrant visa through a U.S. Consulate abroad.

For those already in the U.S., the choice between the two has traditionally been a no-brainer. Applying for adjustment of status allows someone to remain in the United States and transition from nonimmigrant status to lawful permanent resident status without having to leave the country. Additional benefits include the ability to apply for a travel document (Advance Parole – AP) and separate work authorization (EAD).

There is also a significant convenience factor to adjusting status, especially for individuals with young children, homes, cars, jobs, and established lives in the U.S. It avoids the disruption of international travel and the uncertainty of dealing with often unpredictable consular processing abroad. In fact, historically, many employment-based adjustment applicants were not even required to attend an interview at all.

So, what does the memo say?

The memo reminds officers that adjustment of status is a matter of discretion and administrative grace not designed to replace the regular consular processing of immigrant visas. In other words, adjustment of status should be the exception rather than the rule. A separate press release USCIS states that individuals who want a green card must return to their home country, except in extraordinary circumstances.

What changes can we expect?

We have already heard from other attorneys that USCIS have so far been instructed to ask four additional questions as a result of the memo either at the interview or by issuing a request for further evidence (RFE). These questions are as follows:

Why did you apply for AOS instead of Consular Processing?
Are there any factors that would prevent you from pursuing CP?
Do you have any family still living there?
Why did you decide not to return to your country when your period of authorized stay expired?

How these questions are answered, together with several other factors, may ultimately determine whether an adjustment of status application is approved.

Totality of the circumstances

The memo reminds officers when determining whether the individual warrants a favorable exercise of discretion to consider all relevant factors under a totality of the circumstances analysis including:

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 other government agencies
Failure to depart when the purpose of the admission or parole was accomplished
Applying for adjustment in a category where consular processing is an option
Any conduct of the individual after admission as a nonimmigrant that is inconsistent with the status and any representations made to consular officers to obtain the visa.

Officers are also instructed to consider all positive and negative factors including family ties, immigration status and history, the individual’s moral character and any other relevant factors that have a bearing on the favorable adjudication.

USCIS officer reviewing I-485 adjustment of status application during immigration interview

Who will be affected?

Almost everyone in the United States applying for adjustment of status is potentially impacted, including individuals who already have pending adjustment applications. However, it remains to be seen how this policy will actually be applied in practice. USCIS may use the memo as a basis to scrutinize certain cases more closely, or potentially to justify denying a broader range of cases under the guise of discretion.

Those who entered the U.S. on a single-intent visa, such as a B-1/B-2 visitor visa, and then later applied for adjustment of status may be more vulnerable, as USCIS is likely to closely scrutinize these cases for preconceived immigrant intent.

At the same time, while the memo appears to acknowledge that applying for adjustment of status is not inconsistent with maintaining nonimmigrant status in dual intent categories such as H-1B and L-1, it also makes clear that merely being in a dual intent category is not, by itself, sufficient to warrant a favorable exercise of discretion.

What you should do if you have already filed your I-485 application:

There is generally nothing immediate that needs to be done at this time. Continue complying with all immigration rules and maintaining valid underlying nonimmigrant status where possible.
Most importantly, do not panic or make major immigration decisions based solely on headlines or commentary circulating online. This memo is very new, and it remains unclear how aggressively USCIS will apply it in practice. Remember, the law has not changed, and adjustment of status remains a legal option.
Start organizing documentation demonstrating your compliance with U.S. immigration laws, good moral character, tax compliance, stable employment history, strong family ties in the United States, and lack of any criminal history or immigration violations.
If you have any prior status violations, periods of unauthorized employment, prior visa refusals, or other immigration concerns, discuss them with your immigration attorney proactively rather than waiting for USCIS to raise them.
Limit international travel to situations where travel is truly necessary, and ensuring you have the appropriate documentation before departing the United States.

If you have not yet filed your I-485 application:

Discuss your specific circumstances and strategy with your Immigration attorney before filing.
Consider including additional supporting documentation demonstrating why your case warrants a favorable warrant of discretion by including an explanation as to why you filed adjustment of status and including a list of positive factors.
Individuals with prior immigration violations, unauthorized employment, or complex immigration histories should expect increased scrutiny moving forward and should prepare accordingly.

Due to the increased potential for denials, it is more important than ever to maintain your nonimmigrant status throughout the pendency of your I-485 application. Failing to maintain your nonimmigrant status could leave you in a vulnerable position if your I-485 is denied and require you to leave the US. Maintaining status, on the other hand, may allow you to file a motion or lawsuit while remaining in the United States.

Conclusion

For decades, adjustment of status has been treated as a normal and practical pathway for eligible individuals already living and working in the United States to obtain permanent residence without leaving the country. This memo attempts to reframe that process as something exceptional rather than routine, and that shift in tone alone is enough to create understandable concern within the immigration community.

At this stage, the biggest question is not what the memo says, but how USCIS officers will apply it in practice. If the agency simply uses the memo to more closely scrutinize cases involving fraud, status violations, unauthorized employment, or misrepresentations, then the practical impact may be limited. However, if USCIS begins broadly denying adjustment of status applications under the guise of “discretion,” even where applicants have otherwise complied with immigration laws and established lives in the United States, the consequences could be significant.

Importantly, the memo does not change the law. Congress created adjustment of status as a lawful mechanism for eligible individuals to obtain permanent residence from within the United States. USCIS cannot eliminate that process through policy memoranda alone. If the agency attempts to apply this guidance in an overly aggressive, inconsistent, or legally unsupported manner, litigation will almost certainly follow.

For now, individuals should remain calm, avoid making reactionary immigration decisions based on headlines or social media commentary, and consult with experienced immigration counsel regarding their specific circumstances. Our office is monitoring developments closely and will continue providing updates as more information becomes available regarding how USCIS is implementing this policy in real-world adjudications.

If you have questions regarding the above or how this policy may impact your case, please contact PSBP Law Partner Chris Prescott at cprescott@psbplaw.com.