USCIS Issues New Adjustment of Status Policy: The Law Has Not Changed, But Green Card Cases May Face Increased Scrutiny

On May 21, 2026, U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 regarding discretionary review in adjustment of status (“AOS”) cases filed inside the United States.

The memorandum does not eliminate adjustment of status under INA § 245. However, it signals that USCIS may apply closer discretionary review in certain green card cases and may place greater emphasis on consular immigrant visa processing abroad.

This new USCIS adjustment of status policy may affect:

• marriage-based green card applicants;
• employment-based adjustment applicants;
• B-1/B-2 visitor visa holders;
• F-1 students, OPT, and STEM OPT applicants;
• parole-based applicants;
• and individuals with prior immigration violations, unauthorized employment, or complicated immigration histories.

For applicants already inside the United States, the policy raises important questions regarding immigrant intent, maintenance of lawful status, discretionary review, and whether consular processing may be a practical or risky alternative.

What Changed?

Adjustment of status allows eligible individuals already inside the United States to apply for lawful permanent residence without leaving the country for immigrant visa processing abroad. The new USCIS memorandum describes adjustment of status as a discretionary benefit and emphasizes that officers should evaluate whether applicants merit approval under the totality of the circumstances.

USCIS may now place greater emphasis on issues such as:

• unauthorized employment;
• failure to maintain lawful status;
• overstays;
• prior immigration violations;
• fraud or false statements;
• parole violations;
• and conduct inconsistent with prior visa representations.

As a result, USCIS may more closely review:

• intent at the time of entry;
• prior visa applications;
• travel history;
• maintenance of nonimmigrant status;
• employment history;
• and consistency across immigration filings and interviews.

USCIS Policy Manual Guidance on Discretion

USCIS’s Policy Manual already instructs officers to consider both positive and negative discretionary factors in adjustment cases. Positive factors may include family ties, lawful employment history, tax compliance, community involvement, humanitarian considerations, and long-term residence in the United States. Negative factors may include immigration violations, unauthorized employment, fraud, criminal history, or inconsistent immigration representations.

The new memorandum appears to place greater emphasis on this discretionary balancing analysis, particularly in cases involving B-1/B-2 entry, F-1 status, parole-based entry, overstays, unauthorized employment, or prior immigration violations.

Increased Scrutiny in Marriage-Based Green Card Cases

Marriage-based adjustment cases may face increased review where the applicant entered the United States using:

• B-1/B-2 visitor status;
• ESTA/Visa Waiver Program travel;
• F-1 student status;
• or parole-based entry.

USCIS may closely examine:

• the timing of the marriage after entry;
• whether the applicant intended to immigrate at the time of admission;
• prior DS-160 statements;
• maintenance of lawful status;
• unauthorized employment issues;
• and inconsistencies in immigration records.

This does not mean marriage-based adjustment cases will be denied. However, applicants with complicated entry histories or status issues should expect closer review and should prepare stronger supporting evidence.

Potential Impact on Employment-Based Adjustment Cases

Employment-based green card applicants may also be affected, especially those transitioning from:

• F-1 student status;
• OPT or STEM OPT;
• B-2 visitor status;
• or parole-based entry.

USCIS may examine compliance with OPT and STEM OPT requirements, maintenance of lawful status, employment authorization, gaps in status, and prior immigration representations. Applicants in H-1B and L-1 status are generally in a stronger position because those visa classifications recognize dual intent. Even so, USCIS may still review maintenance of status and other discretionary factors carefully.

Concerns About USCIS’s New Adjustment of Status Policy

The memorandum has generated concern among immigration attorneys, employers, families, and applicants because adjustment of status has long been a lawful and widely used pathway to permanent residence for many individuals already inside the United States.

One concern is that the memorandum relies heavily on language from older cases involving adjustment of status in removal proceedings, while many adjustment applications are filed affirmatively by applicants who are otherwise eligible under INA § 245. The policy may also create practical consequences if more applicants are pushed toward consular processing abroad, including:

• unlawful presence bars under INA § 212(a)(9)(B);
• immigrant visa appointment delays;
• administrative processing delays;
• medical examination delays;
• country-specific restrictions;
• and prolonged separation from family or employment in the United States.

For employment-based applicants, international visa processing delays may disrupt U.S. employers if workers become stranded abroad due to security checks, consular backlogs, or administrative processing. Families with derivative children may face additional concerns as well. Delays in immigrant visa processing may increase the importance of Child Status Protection Act (CSPA) calculations in cases where children are close to aging out.

Legal Questions Raised by the USCIS Memorandum

The USCIS memorandum has generated legal debate because INA § 245(a) allows eligible applicants who were lawfully admitted or paroled into the United States to apply for adjustment of status, while leaving approval to agency discretion.

Although adjustment of status has always been discretionary, many immigration attorneys argue that the statute does not characterize adjustment as “extraordinary” relief. Congress has also treated adjustment as a central mechanism of the legal immigration system through provisions such as INA § 245(i), INA § 245(k), INA § 245(c), and AC21 portability protections.

INA § 245(c) itself contains important exceptions permitting adjustment of status for certain immediate relatives of U.S. citizens and VAWA-based applicants despite overstays or unauthorized employment, reflecting Congress’s intent to allow many qualifying applicants to complete the green card process from inside the United States.

Some immigration attorneys also question whether the memorandum gives sufficient weight to cases such as Matter of Arai, where the Board of Immigration Appeals indicated that adjustment should ordinarily be granted when no adverse discretionary factors are present. The memorandum also does not address BIA precedents such as Matter of Cavazos, 17 I&N Dec. 215 (BIA 1980), and Matter of Ibrahim, 18 I&N Dec. 55 (BIA 1981), which recognized that adjustment may generally warrant favorable discretion in immediate-relative cases where statutory eligibility and admissibility are established.

Practical Limits of the Policy

The memorandum does not change the statutory eligibility requirements for adjustment of status. Eligible applicants may still file for adjustment if they satisfy the legal requirements. The practical impact of the policy will likely vary depending on the immigration category, immigration history, and whether consular processing is realistically available.

Certain categories may be less affected because Congress specifically created adjustment pathways for those applicants, including refugees, asylees, VAWA applicants, Special Immigrant Juvenile applicants, and certain other humanitarian categories. Applicants with B-1/B-2 entry, F-1 or OPT history, parole-based entry, overstays, unauthorized employment, or prior immigration violations may nevertheless face closer discretionary review. In these cases, strong supporting evidence regarding lawful employment, family ties, tax compliance, community involvement, and maintenance of status may become increasingly important.

This policy does not mean every adjustment case will be denied. However, applicants should expect greater scrutiny in cases involving temporary visa entries, status violations, parole-based entry, immigrant intent concerns, or complicated immigration histories.

Frequently Asked Questions About the New USCIS Adjustment of Status Policy

Does the new USCIS memo eliminate adjustment of status?

No. The memorandum does not eliminate adjustment of status under INA § 245. However, it may increase discretionary scrutiny in certain green card cases.

Will marriage-based green card applicants be affected?

Possibly. Applicants who entered the United States using B-1/B-2 visitor visas, ESTA, F-1 status, or parole may face closer review regarding intent, maintenance of status, and prior immigration representations.

Are H-1B and L-1 visa holders affected?

H-1B and L-1 applicants are generally in a stronger position because those classifications recognize dual intent. However, USCIS may still carefully review maintenance of status and other discretionary factors.

Should applicants delay filing adjustment of status applications?

Not necessarily. The memorandum does not eliminate adjustment eligibility. Applicants should carefully review immigration history, status maintenance, and discretionary factors before filing.

Is consular processing safer than adjustment of status?

Not always. Consular processing may create additional risks, including unlawful presence bars, administrative processing delays, employment disruption, and prolonged family separation.

Contact The Ahluwalia Firm

The Ahluwalia Firm is a San Jose immigration law firm representing clients nationwide in:

• adjustment of status cases;
• marriage-based green card applications;
• employment-based immigration;
• H-1B matters;
• consular processing;
• RFEs and NOIDs;
• and complex immigration strategy matters.

Adjustment of status cases involving B-1/B-2 entry, F-1 or OPT history, parole-based entry, unauthorized employment concerns, prior immigration violations, or complicated immigration histories may now require more careful legal analysis under the new USCIS policy guidance.

If you are considering filing for adjustment of status or have concerns regarding your immigration history, contact The Ahluwalia Firm to discuss your case and evaluate potential risks before filing.

This article is for general informational purposes only and does not constitute legal advice. Each immigration case depends on its specific facts and circumstances.