USCIS Reaffirms Discretionary Nature of Adjustment of Status in the U.S

Darren Silver

On May 21, 2026, the United States Citizenship and Immigration Services (USCIS) issued a significant policy memorandum emphasizing that Adjustment of Status (AOS) — applying for a green card from within the United States — is a discretionary benefit. The memo characterizes AOS as an “extraordinary act” of administrative grace rather than an entitlement, signaling a shift toward stricter adjudication.

Key Areas of Increased Scrutiny

USCIS officers are now encouraged to apply heightened scrutiny to applicants who have:

  • violated or fallen out of immigration status,

  • engaged in unauthorized employment,

  • overstayed visas,

  • entered through parole programs, or

  • appeared to use temporary visas as a pathway to permanent residence.

This shift may affect employment-based, family-based, parole-based, and other categories of adjustment applicants.

Implications for Applicants

  1. Discretionary Denials More Likely

Meeting the statutory eligibility requirements may no longer be enough. Applicants now bear the burden of demonstrating why USCIS should exercise discretion favorably. Officers are instructed to evaluate the totality of the circumstances, weighing both positive and negative factors.

  1. Greater Emphasis on Immigration History

Officers will more closely examine:

  • visa compliance and maintenance of status,

  • any prior violations or unauthorized employment,

  • inconsistencies in statements or filings,

  • prior immigration applications, and

  • the applicant’s intent at the time of entry.

  1. Consular Processing May Be Favored

The memo expresses a preference for the traditional immigrant visa process through U.S. consulates abroad. Applicants may increasingly be asked to justify why they are seeking permanent residence from within the United States rather than through consular processing.

  1. Heightened Review of Parole-Based Entries

Individuals who entered through humanitarian or public benefit parole programs may face additional scrutiny regarding whether adjustment is appropriate under the new discretionary framework.

  1. Dual Intent Categories (H1b/ L-1) Still Recognized — But Not Dispositive

Practical Risks and Expectations

Applicants and employers should anticipate:

  • more Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs),

  • increased discretionary denials,

  • longer adjudication timelines, and

  • deeper examination of intent, compliance, and equities.

Recommended Action Items

For Individuals

  • Maintain lawful status whenever possible.

  • Avoid unauthorized employment.

  • Keep thorough documentation of visa compliance.

  • Ensure consistency across all immigration filings and interviews.

  • Seek legal guidance before international travel or filing AOS applications.

  • Evaluate whether consular processing may be strategically advantageous.

What the Memo does and does not say: 

The Memo does NOT terminate Adjustment of Status (I-485).  Applicants may continue to file AOS with an eye on the new tighter scrutiny compliance.

The Memo state that USCIS may later carve out “exceptions for certain categories”  The Trump administration added more information here as it was stated that “the new green card enforcement likely won’t apply to those who provide an ’economic benefit”.

“Extraordinary” is not defined. For EB-5 investors,  the investment of $800,000 into the U.S  Economy may be an example of extraordinary.

Importantly:

– The memo does not change the underlying law, it provides adjudicators with a framework that may lead to more aggressive discretionary denials.