On May 21, 2026, USCIS issued a Policy Memo emphasizing the discretionary nature of Adjustment of Status.
Adjustment of Status (AOS) is the option for someone seeking legal permanent residence in the U.S. (i.e., green card) to change from their existing nonimmigrant status in the U.S. (e.g., F-1 international student, H-1B specialty occupation worker, L-1 intracompany transferee, or even B-2 tourist) to that of permanent residency so long as they have been maintaining their legal status in the U.S. since their last entry and meet a number of health, security, and financial criteria. This has been beneficial to many because it avoids having to leave the U.S. to process their permanent residency at a U.S. consulate abroad. The latest memo actually indicates that leaving the U.S. to process one’s permanent residency should be the norm.
The USCIS has characterized as “extraordinary” the now common AOS process where an eligible foreign national applies for permanent residence from within the United States rather than applying for a US permanent resident visa from a U.S. consular post outside of the U.S. This policy memo serves as a reminder to officers regarding the discretionary nature of AOS. As such, there is no effective date; the underlying message is that this has always been the case.
The memo reminds USCIS adjudicators that they must consider factors including family ties, immigration status and history, moral character, and any other relevant factors to determine whether AOS should be allowed. Otherwise, the message is that individuals should be applying for their permanent residency at U.S. consulates abroad and not while in the U.S.
Emphasizing the discretionary nature of the AOS application, the policy memo directs USCIS officers to review carefully:
- violations of immigration laws or the maintenance of conditions of immigration status,
- any instance of fraud or false testimony in dealings with USCIS or any government agency,
- violations of any laws, regulations, and policies in place at the time, and
- any conduct following admission or parole to the U.S. inconsistent one’s nonimmigrant category or parole status with a particular focus on the intent to become a permanent resident. This focus could draw additional scrutiny for those holding immigration categories requiring “non-immigrant intent” (e.g., B-1/B-2, F-1, or TN) when applying for AOS, those who have stayed beyond the period of admission, or those in removal proceeding.
Practically speaking, AOS applications would continue to require careful review of the applicant’s U.S. immigration history while paying attention to continued maintenance of status, information affirming family ties and contribution to the community, and other relevant positive factors. In addition, we continue to recommend maintaining one’s immigration status while the I-485 application is pending.
Some anticipate that there will be litigation regarding this policy memo; Clark Lau will continue to monitor the developments. The above has been provided for educational purposes only. Please be sure to contact your Clark Lau attorney to discuss how this relates to your case.