U.S. CIS Policy Memorandum “Adjustment of Status is a Matter of Discretion and Administrative Grace”
On May 21, 2026, the U.S. Citizenship and Immigration Services (USCIS) released a memo changing the process for foreign nationals filing Adjustment of Status applications seeking U.S. Permanent Residency. The memo reverses the pattern and practice that has been standard policy of the immigration service for the past decades whereby a foreign national can apply for U.S. Permanent Residency while remaining in the United States while the application is reviewed and approved. The new policy changes the process based on the notion that “adjustment of status under section 245 of the Immigration and Nationality Act (INA) is a matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas.” The memo gives the impression that this is not a change in policy when it states “USCIS reaffirms this consistent and longstanding approach and declares as a matter of general policy its intention to faithfully apply the statutes consistently with this understanding.” However, this is a definite change in how the USCIS will adjudicate applications for adjustment of status.
The memo explains that foreign nationals who have been admitted to the United States fall under two broad categories – inspected parolees or inspected and admitted non-immigrants. In either situation, the expectation is that once the status has expired, then the beneficiary should depart the United States. The modern practice has been that many foreign nationals enter the United States for university or employment and eventually apply to become a U.S. permanent resident through employer or family sponsorship.
The impact of the change in policy will be felt in both family and employment-based cases. The more onerous impact will be on family-based petitions. This will especially be true for U.S. citizens who are sponsoring foreign national spouses or parents. The security of having an immediate relative remain in the United States during the processing of their I-485 application diminishes the stress and anxiety of having to go overseas for a consular interview. In an employment-based scenario, leaving the United States for a consular interview creates uncertainty as to when the applicant will be able to return to their employer in the United States and to their U.S. citizen family members. There is no guarantee that a consular interview will be expeditious or successful. What happens to those who were left behind?
The memo highlights the fact that “adjustment of status is an extraordinary discretionary relief to the regular immigrant visa process and is an act of administrative grace.” Therefore, we should expect that future applicants for adjustment of status will need to plan to finalize their immigrant visa process overseas at a consular post. Even then, the result is not necessarily guaranteed, because a consular officer has wide range of means to delay and deny applicants. The fact that the applicant is abroad means that they have limited recourse in obtaining a secondary review of an officer’s decision. An example would be a non-immigrant student who applies for U.S. permanent residency. The non-immigrant F-1 student visa is issued to applicants who do not have immigrant intent. However, if they decide to apply for permanent residency after many years of being in the United States, a consular officer can point back to the applicant’s F1 application and interview where they have indicated that they had no immigrant intent. Would this applicant’s application be denied based on a statement made years before?
A similar situation would occur for an immediate spouse applicant who overstayed their tourist visa and remained in the United States for many years before marrying a U.S. citizen. In the past, a legal entry to the United States followed by marriage to a U.S. citizen, despite a period of out of status time, could lead to permanent residency. However, having to go abroad for an interview could lead to the case being denied, due to the period of overstay or perceived fraud in the initial tourist visa application.
What we can expect is an increase in consular post delays due to the implementation of the policy. There is no specific date that the memo will go into effect, but the best course of action would be to plan for it to be active by June 1, 2026. If plans have been made regarding the filing of I-485 applications, then a review of those plans based on this memo should be done. There is no guidance in this memo regarding I-485 applications that are pending with the immigration service. Contact your immigration counsel for guidance.
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