A new USCIS policy memo directs officers to apply heightened scrutiny to adjustment of status applications, requiring applicants to justify why they deserve approval beyond simply meeting eligibility requirements.
What Changed
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.”
That title alone signals the administration’s intent. The memo instructs USCIS officers to apply heightened scrutiny when deciding whether to approve adjustment of status applications, with particular attention to whether an applicant could have applied for their green card through consular processing at a US embassy abroad instead of filing here in the United States.
In practical terms, this means that being eligible for adjustment of status may no longer be enough. USCIS is now taking the position that the absence of negative factors alone is insufficient to approve a case. Applicants may be asked to actively demonstrate why they deserve a favorable exercise of discretion.
It is worth noting what immigration attorneys and the American Immigration Lawyers Association have pointed out about this memo: adjustment of status is not “extraordinary relief.” It is a right established by statute, coequal with consular processing. Congress created adjustment of status precisely so that people already in the United States would not have to incur the expense and disruption of leaving the country to obtain a green card. The memo’s framing conflicts with the plain text of the law, existing BIA precedent, and USCIS’s own policy manual. Legal challenges are being prepared.
Questions USCIS May Ask at Your Interview
If you have a pending adjustment of status application and are called for an interview, be prepared to answer the following questions:
Why did you apply for adjustment of status in the United States instead of going through consular processing? Are there any factors that prevent you from applying through consular processing? Why did you not return to your home country when your authorized period of stay expired? Do you have any family still living in your home country?
These questions are designed to evaluate whether granting you the benefit of adjusting status here, rather than requiring you to apply abroad, is warranted under the circumstances of your case. Officers will also likely review your full immigration history, criminal history, employment history, family ties, and potentially your social media activity. Interviews will be longer and more detailed than in the past. Spouses in marriage-based cases may be interviewed separately.
What USCIS Considers a Negative Factor
The memo identifies several factors that officers may weigh against an applicant. These include violations of immigration law, violations of the conditions of your status such as overstaying a visa or working without authorization, fraud or false testimony to a government agency, conduct after admission that was inconsistent with the purpose of your visa or parole, and failure to depart the United States as expected, particularly when connected to an intent to permanently reside here.
The memo also draws from a 2025 Good Moral Character memo that identifies additional negative considerations: controlled substance violations, two DUI convictions, false claims to citizenship or unlawful voting, reckless or habitual traffic violations, and harassment or aggressive solicitation.
What Counts in Your Favor
The good news is that positive factors still matter, and there is no exhaustive list of what officers must consider. USCIS will weigh all relevant evidence in your favor, including family ties in the United States, especially to US citizen or lawful permanent resident family members, your immigration status and history, good moral character demonstrated through community involvement, stable and lawful employment, tax compliance, educational achievements, and family caregiving.
If you have any negative factors in your history, evidence of rehabilitation can also work in your favor: paying overdue child support, complying with probation or court conditions, paying overdue taxes, community testimony attesting to your character, and mentoring others with similar backgrounds.
USCIS’s own policy manual still states that where a person meets the eligibility threshold and there are no negative factors to weigh against them, “denial of the benefit would be an inappropriate use of discretion.” That standard has not been erased, even if this memo has complicated it.
Who May Not Be Affected
Certain categories of applicants may not be impacted by this memo, including asylees who adjust under a different section of the law, Special Immigrant Juveniles who cannot go through consular processing, refugees, NACARA, HRIFA, and Legalization applicants who do not require discretion to adjust, and people in Immigration Court proceedings, since this is a USCIS policy memo and does not bind immigration judges.
If you fall into one of these categories, consult with an attorney to confirm how your specific situation is affected.
The Risks of Leaving the United States
One of the most important warnings about this policy involves the unlawful presence bars. If you are considering leaving the United States to apply through consular processing in response to this memo, speak with an attorney before you travel.
Anyone who has been in the US without valid immigration status for more than 180 days and then departs can be barred from returning for three years. Anyone who has been unlawfully present for more than one year and departs can face a ten-year bar. These bars are triggered at the moment of departure. Leaving to comply with the policy’s preference for consular processing could prevent you from returning even if your green card application is ultimately approved.
Is This Policy Being Challenged?
Yes. The American Immigration Lawyers Association and other organizations are actively challenging this memo on several grounds. It appears to constitute rulemaking without proper notice and comment, is inconsistent with existing law and Board of Immigration Appeals precedent, and may be considered arbitrary and capricious agency action. AILA is also seeking plaintiffs for potential litigation.
Courts have blocked similar sweeping policy changes by this administration before. We are monitoring these developments closely and will keep you informed as the situation evolves.
What You Should Do Now
If you have a pending adjustment of status application, the most important thing you can do is prepare. Gather your documents early, before any interview notice arrives. Collect records that demonstrate your ties to the United States, your good moral character, and any compelling reasons why adjustment of status is appropriate in your case. Do not wait to be asked.
If you have questions about how this policy may affect your situation, contact Powers Law Group. We are here to help you understand your options and build the strongest possible case.
Powers Law Group | Phone: 713-589-2085 | Email: [email protected]
Sources
- USCIS, Policy Memorandum PM-602-0199: Adjustment of Status is a Matter of Discretion and Administrative Grace, May 21, 2026. https://www.uscis.gov
- American Immigration Lawyers Association, Practice Pointer on the May 21 AOS Memo, AILA Doc. No. 26052602, May 2026. https://www.aila.org
- American Immigration Lawyers Association, Call for Examples: Individuals Impacted by USCIS Discretionary Memo on AOS, AILA Doc. No. 26052731, May 2026. https://www.aila.org
- USCIS Policy Manual, Chapter 1 — Adjustment of Status Overview. https://www.uscis.gov/policy-manual
- USCIS Policy Manual, 1 USCIS-PM E.8 — Adjudications Discretionary Analysis. https://www.uscis.gov/policy-manual
- Matter of Arai, 13 I&N Dec. 494, 496 (BIA 1970).
- National Immigration Law Center, Unlawful Presence and the Three and Ten Year Bars, 2025. https://www.nilc.org
- American Immigration Council, Adjustment of Status vs. Consular Processing: What’s the Difference?, 2024. https://www.americanimmigrationcouncil.org
- Administrative Procedures Act, 5 U.S.C. § 555(b): Right to Counsel at Agency Proceedings.
- Powers Law Group, USCIS Just Changed the Rules on Green Cards. If You’re on a Visa in the US, This Affects You., May 2026. https://www.rubypowerslaw.com
