New Adjustment of Status Policy After May 22, 2026

In a significant policy change, on Friday, May 22, 2026, the U.S. Citizenship and Immigration Services (USCIS) issued a new policy memo to remind immigration officers and the public that adjustment of status is a matter of discretion and not mandatory.

Per this policy memo, immigrants applying for adjustment of status should do so through consular processing with the Department of State outside the United States. As part of the guidance from USCIS, consular officers are directed to consider all relevant factors and information on a case-by-case basis when determining whether an alien warrants this form of relief and can adjust status in the United States.

USCIS Guidance: The memo underscores and emphasizes the relief that an adjustment of status provides and the responsibility of consular officers and USCIS officers in evaluating an AOS request, and to consider all other factors, including family ties, moral character, and any violations or acts of fraud before, during, or after applying and obtaining immigrant status in the United States.

Where consular processing is available based on the immigrant category in which an applicant seeks adjustment of status, officers are to consider the consistent understanding of the courts and the BIA that adjustment of status is a discretionary relief from the regular immigrant visa process and an act of administrative grace.
Where adjustment of status is in the discretion of USCIS, officers are reminded that they are to consider all relevant factors and information in the totality of the circumstances in exercising that discretion. They should consider violations of US immigration laws or the conditions of any immigration status held, current or previous instances of fraud or false testimony in dealings with USCIS or any government agency, whether an alien’s application for admission or parole violated the laws, regulations, and policies in place at the time, and any conduct of the alien after admission as a nonimmigrant or parolee inconsistent with the purpose of that nonimmigrant status or parole or with representations made to consular or DHS officers when applying for a visa, admission, or parole. Failure to comply with the conditions of nonimmigrant admission or parole and failure to depart as expected are highly relevant to this analysis. This is particularly true when the failure is connected to the intention to reside permanently in the United States and the immigrant could have achieved that goal through the normal immigrant visa process.
Adjudicators must weigh all positive and negative factors, including family ties, immigration status and history, the applicant’s moral character, and any other relevant factor that bears on determining whether the alien warrants a favorable exercise of discretion.
USCIS reminds officers that when they deny a benefit request, they must issue a written denial notice explaining the specific reasons for the denial.
Though USCIS refers to this as consistent with existing laws, it is a shift in regular processing and procedure. At the time of the memo’s publication and this alert, USCIS has not indicated when AOS applicants will no longer be able to apply within the United States.
The memo also does not address USCIS’s stance on AOS applications already in progress.
The memo states that USCIS will carefully review the various pathways to discretionary adjustment of status, as well as discrete populations of aliens applying for adjustment of status in the context of the consistent and longstanding finding that adjustment of status is an extraordinary matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas. The timeline for this and the groups to which it may apply have not been clarified yet.
The memo also states that “USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process.” It is unclear at this time whether USCIS would entirely restrict certain groups from adjustment of status, and, if so, on what basis.
At a recent marriage-based adjustment of status interview, an attorney reported that the Immigration Officer ended the interview with, “Okay, I have three questions that I have to ask you.”. This has become somewhat standard based on the new USCIS policy

Why did you choose to adjust status instead of consular processing?
Are there any factors that prevented you from consular processing?
Why did you not return to your home country when your authorized period of stay expired? One would then need to explain why they overstayed and did not apply at a consulate back home. Was it that the American spouse was having health issues? Financial issues? Other significant issues?

Was it family hardship, medical issues? financial/career issues?

Much more to come regarding this new policy.

For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.