Takeaways

  • A new USCIS policy memorandum emphasizes that adjustment of status is a discretionary benefit and that consular processing abroad is the “ordinary” pathway to permanent residence.
  • The memo does not eliminate employment-based adjustment of status or create a formal new rule requiring all applicants to consular process.
  • Significant questions remain, including how USCIS will apply this guidance to pending applications, whether new adjudication standards will emerge in practice, and whether the policy will face litigation challenges.

USCIS released a new policy memorandum (PM-602-0199) on May 22, 2026, asserting that adjustment of status (AOS) is an “extraordinary” discretionary benefit that should not “supersede the regular consular visa-issuing process.” The accompanying agency announcement goes further, stating that temporary visitors “must return to their home country to apply” to pursue permanent residence “except in extraordinary circumstances.”

The memo appears primarily aimed at directing the agency’s adjudicators to apply more rigorous discretionary analysis in adjustment cases. Significantly, USCIS states that maintaining lawful status in a dual-intent category “is not sufficient, on its own, to warrant a favorable exercise of discretion.” Although that language may create uncertainty for otherwise compliant nonimmigrant workers pursuing employment-based permanent residence through the long-standing AOS process, the memo does not announce any new statutory bars to adjustment eligibility nor rescind existing adjustment pathways. The agency also confirms that officers must continue to conduct a case-by-case totality-of-the-circumstances analysis.

For employers and foreign national employees, the practical impact will likely depend on the facts of each case. The memo repeatedly references adverse discretionary factors, such as immigration status violations, unauthorized employment, fraud or misrepresentation concerns, failure to depart following expiration of status or parole, and conduct inconsistent with the purpose of admission.

For now, employers should anticipate:

  • Increased Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs) focused on discretionary factors;
  • Longer adjudication timelines while USCIS applies enhanced review; and
  • Greater emphasis on documenting lawful maintenance of status, compliance history, and positive equities in AOS filings.

Important issues remain unresolved. The memorandum does not clearly specify an effective date or whether it will be applied to pending cases. Litigation challenging the policy is widely expected, particularly over the agency’s interpretation of the discretionary framework governing adjustment adjudications.

Jackson Lewis attorneys continue to monitor implementation closely, including whether USCIS issues category-specific guidance or changes adjudication practices for employment-based applicants. For now, employers and foreign nationals with pending or planned adjustment filings should consult counsel regarding case strategy, timing considerations, and documentation of discretionary factors.

Please contact a Jackson Lewis attorney with any questions.