USCIS issues monumental guidance restricting eligibility to apply for a green card from within the US

Without notice or any sort of warning, U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum that will disrupt and change the immigration process that we’ve known for decades. 

Background

Since 1952, individuals in the U.S. who sought U.S. lawful permanent residence (aka Green Cards) were able to choose between two processes to finish their cases. One process, adjustment of status, allowed the individuals to file an application in the United States, where USCIS (and previously the INS) would interview them, run a security check, and either approve or deny the Green Card application. The other, immigrant visa processing, required an interview at a U.S. consular post abroad (in the individual’s home country), where the consular officer would also run a security check and then make a decision on whether to approve or deny the application. While USCIS has always had the authority to exercise negative discretion when adjudicating adjustment of status applications, officers rarely exercised that discretion when there were no significant negative factors present (e.g., severe criminal conduct, immigration violations, etc.). 

What changed? On the afternoon of Friday, May 22, 2026, the day before the Memorial Day weekend, USCIS issued a Policy Memorandum that informs officers that adjustment of status is a “matter of discretion and administrative grace not designed to supersede the regular consular processing of [Green Cards].” The memo continued, “It has been long established that not every alien who meets all other eligibility criteria for adjustment of status will be granted adjustment, because adjustment under most provisions is granted only as ‘a matter of discretion and administrative grace.’”    

What is stated in the memorandum

The memo clarifies how officers should evaluate applications for adjustment of status (i.e., the process of applying for a green card from within the United States). It describes this benefit as an "extraordinary" form of relief and instructs officers to review these applications with greater scrutiny than has historically been applied. This could lead to adjustment of status denials and thereby force individuals who are in the United States to pursue consular immigrant visa processing abroad (which can be costly in terms of time and money).

This new guidance enforces USCIS officers’ discretionary authority to consider a range of negative factors when reviewing adjustment of status applications, including criminal conduct, past immigration violations, failure to maintain lawful status, unauthorized employment, fraud or misrepresentation in prior dealings with USCIS or other government agencies, and other conduct inconsistent with the terms of a visa or parole grant. 

Importantly, the absence of these negative factors alone is now not considered sufficient to establish eligibility for an adjustment of status, as officers are now being directed to make a more holistic assessment of each case. Moreover, the memorandum emphasizes that maintaining lawful status in a dual intent nonimmigrant category (i.e., H and L) is not sufficient, on its own, to establish eligibility.

What we don't know yet

Given the sudden and unexpected nature of this policy shift, it is currently unclear exactly how USCIS officers will apply the guidance in practice, how it will affect pending cases, and which groups will feel the greatest impact – the memorandum itself states that it is intended solely for internal USCIS guidance and cannot be used to create any enforceable right or benefit. 

What foreign nationals can do now

While it is unclear exactly how this new policy will be applied, those planning to file (or those who have already filed) an adjustment of status application can nonetheless take proactive steps to strengthen their case, including:

• documenting a clean criminal record in the United States and abroad;
• maintaining a thorough record of lawful immigration status with no unauthorized gaps/work; and
• collecting evidence of positive ties to the United States, such as family relationships, tax compliance, employment history, and community involvement. 

What’s next

While this guidance could adversely affect many adjustment of status applicants, it remains unclear how the policy will be applied in practice. Legal challenges to this policy are already forming, and litigation is expected shortly. We are monitoring the situation closely and will provide further updates as they become available.

If you have any questions or need additional information about this alert, please feel free to contact the HSF Kramer Immigration Group.