Green Card Adjustment of Status FAQ: Understanding the Latest USCIS Guidance

On May 22, 2026, USCIS issued a policy memorandum that emphasizes that Adjustment of Status (AOS/I-485) is a discretionary benefit, not an automatic step in the green card process.  

Although the memo does not change the law or eligibility criteria, it signals a more restrictive adjudication posture, directing officers to actively weigh discretionary factors in every AOS case and emphasizing that AOS is a discretionary benefit, not an entitlement or automatic step in the immigration process. 

The policy may result in:  

• Heightened adjudicatory scrutiny, particularly in cases involving status violations, gaps in lawful presence and complex immigration histories. 
• More detailed decision-making, including explicit balancing of positive and negative factors, with an increased focus on discretionary analysis in every case. 
• Potential for increased requests for evidence (RFEs) and discretionary denials. To note, discretionary denials must be supported by a written analysis explaining how negative factors outweigh positive equities. 
• Pivots to consular processing (Immigrant Visa Processing/IVP at the National Visa Center/NVC) (outside U.S.) green card filings for single-intent visa holders, such as F-1 student, TN, O-1 and others. 

Following publication of the USCIS policy memorandum, The New York Times reported additional clarification from the Department of Homeland Security (DHS) indicating that the memo is intended primarily to remind officers of existing policy, rather than to introduce new eligibility restrictions. According to the DHS spokesperson, the agency’s focus is on “people who overstay visas or come from countries whose citizens are heavy users of public assistance.” 

While this clarification suggests a narrower impact than initially understood, many reports indicate that individuals are already seeing increased questioning during AOS interviews, particularly around status maintenance, prior overstays and discretionary factors.  

Given this shift in officer behavior, employers and foreign nationals should strategize with their immigration counsel to ensure employees are well‑prepared for upcoming interviews and able to address any heightened scrutiny. 

No. The underlying eligibility criteria for a green card remain unchanged.  

Yes. AOS remains a legally available pathway under the Immigration and Nationality Act (INA). The statutory eligibility requirements for AOS have not changed.  

Possibly. The memo may lead to: 

• More RFEs 
• More detailed explanations in decisions 
• Increased likelihood of discretionary denials, which must include written reasoning 

For individuals on single-intent visas (such as F‑1 students, TN professionals, O-1 and E-2 visa holders, and others), there may be a greater likelihood of shifting to consular processing (green card processing outside the U.S.) instead of AOS. 

The memo acknowledges potential exceptions for dual-intent visas like H‑1B and L‑1. While these applicants can still pursue AOS, maintaining lawful status alone may not guarantee approval. We will continue to monitor how this is applied in practice.  

The memo acknowledges that there are likely exceptions to these new rules for people who are in a dual-intent status, including H-1B and L-1 nonimmigrant workers and their dependents. The memo does not alter the dual-intent doctrine.  

Employment-based applicants may still pursue AOS; however, the memorandum clarifies that maintaining lawful status alone does not guarantee a favorable discretionary outcome.  

It remains to be seen whether USCIS will apply more restrictive policies to adjudication of I-485 applicants who hold a dual-intent nonimmigrant status.  

AOS is a process that allows eligible individuals already in the U.S. to apply for lawful permanent residence (a green card) through a USCIS filing without leaving the country.  

Not necessarily. AOS has not been eliminated. However, USCIS guidance indicates that AOS may be granted in limited circumstances and only after heightened discretionary review of the applicant’s history and circumstances. Consular processing may be considered the standard path in many cases moving forward. 

AOS is the final step of the green card process while applying in the U.S. For employment-based applicants, once the immigrant petition (I-140) is approved and the priority date is current with the visa bulletin, eligible individuals in the U.S. may file Form I‑485 to apply for AOS / permanent residence. 

No. While maintaining lawful status remains important, USCIS clarified that it does not guarantee a favorable discretionary decision. 

Discretion refers to USCIS’s authority to approve or deny an application even if the applicant meets the basic eligibility requirements.   

Approval is not automatic; officers evaluate each case individually. USCIS officers will only approve an application if the applicant demonstrates that they warrant a “favorable exercise of discretion”.  

In addition to meeting the eligibility requirements, this involves a weighing of positive and negative factors such as: 

• Family and community ties; 
• Immigration status and history; 
• Community standing and moral character;  
• Business/employment and skills.  

The applicant always has the burden of proving that they are eligible to receive the immigration benefit sought.  

This means the applicant must provide evidence that they meet the basic requirements for AOS.  

Now, USCIS officers will review AOS petitions based on the overall circumstances of the case and applicants may need to prepare to present evidence of positive factors weighing in their favor. 

USCIS generally applies a “preponderance of the evidence” standard, meaning the applicant must show that the claim is more likely than not to be true.   

A “totality of the circumstances” review means that USCIS evaluates all relevant factors in a case together, rather than focusing on any single element. This may include: 

• Immigration history; 
• Compliance with prior visa conditions; 
• Supporting documentation; 
• Overall credibility of the application; 
• Positive and negative factors (community involvement/standing, moral character, skills, etc.). 

No. Meeting the statutory eligibility requirements allows an applicant to apply, but USCIS must still determine whether to approve the application as a matter of discretion. 

The core sponsorship process (e.g., PERM labor certification, I-140 petitions) remains unchanged. However, downstream decisions—particularly whether to pursue AOS or consular processing—may require closer evaluation. 

Employers and foreign nationals should work closely with counsel to assess strategy and strengthen applications to maximize the likelihood of approval. 

It is not yet clear how consistently or to what extent this guidance will affect adjudications. Application trends and outcomes are still developing, and we will continue to monitor. 

Currently, no immediate action is required. The real-world impact of the policy is still unclear and may continue to be until USCIS begins implementing the guidance. 

Given the significant shift in how USCIS approaches adjustment of status, it is likely that stakeholders will pursue legal challenges to the policy.  

Similar changes to immigration adjudication practices have historically prompted litigation, particularly where questions arise regarding statutory authority and administrative procedure.  

While the timing and outcome of any such challenges remain uncertain, challenges could influence how the policy is ultimately implemented or enforced.  

We will continue to closely monitor developments and provide updates as new information becomes available.

Employers and applicants may wish to: 

• Stay informed of ongoing developments 
• Review current and planned cases 
• Work with immigration counsel to assess strategy based on individual circumstances 

Because applicability is fact-specific, employers and foreign nationals may wish to consult with immigration counsel when evaluating case strategy.