What the New USCIS Adjustment of Status Memo Means for Your Case — and Why We Believe It Will Not Stand

If you woke up this week to a worried text from a friend, or to an email forwarded by a family member asking what happens now to adjustment of status, you are definitely not alone. On the Thursday before Memorial Day weekend, USCIS released a policy memorandum that has set off real concern across the country. We have read it carefully, read analysis and commentary, and thought about what it means for our clients and immigrants in general.

Let us be honest: instilling fear and panic in the immigrant communities and among immigrant advocates was very much the point with this memo. Being frightened under these circumstances, after learning about another dramatic immigration policy change under his administration, is perfectly understandable. However, for reasons spelled out below, we expect this memo to be swiftly challenged and struck down.

What actually happened and what the memo says

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, with an unusually long title: “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.”

The memo presents itself as a reminder. It tells officers and the public that adjustment of status (the process that lets a person already inside the United States apply for a green card without leaving) is a discretionary act of administrative grace, not a routine alternative to applying for an immigrant visa abroad at a U.S. consulate. The memo describes itself as just reaffirming longstanding policy.

The practical effect is different from the framing. The memo instructs officers that, where consular processing is available, they should weigh the discretionary balance with the understanding that adjustment is an exceptional remedy. It singles out people who entered on nonimmigrant visas or under parole, telling officers that a person’s failure to depart when their stated purpose was complete is an adverse factor, particularly when the person intended to stay permanently and could have used the consular route instead. In the language of an older BIA case the memo leans on, applicants in this position may need to offset that adverse factor with “unusual or even outstanding equities.” Strong family ties are not enough on their own; neither is a clean record.

Read together, the reach is broad: family-based applicants; employment-based applicants; self-petitioners under EB-1 extraordinary ability; and the spouses and children who file alongside them as dependents.

There are also real limits, and you should know what they are. The memo expressly excludes nonimmigrant categories that Congress built for dual intent—H-1B and L-1 most prominently—where filing for permanent residence while in nonimmigrant status was always part of the design. It excludes statutorily mandatory adjustment categories where Congress already decided the question, including refugee and asylee adjustment under INA §209, the Cuban Adjustment Act, the Haitian Refugee Immigration Fairness Act, and the Liberian Refugee Immigration Fairness provision. It acknowledges that Violence Against Women Act (VAWA) self-petitioners are protected by INA §245(c) itself from many of the bars that would otherwise apply. And the entire discretionary directive only applies, in the memo’s own words, “where consular processing is available” as an alternative.

The memo also previews what is coming next. USCIS signals that it intends to release additional guidance specific to particular categories of applicants and “discrete populations.” This is the opening of a longer policy effort, not the close of one. We will be reading every subsequent release carefully.

Two procedural points are worth flagging. The memo is dated May 21 and effective on issuance, but it does not say how it will be applied to the hundreds of thousands of adjustment applications already pending. And it was issued as an internal policy memorandum, not through the notice-and-comment rulemaking process that the Administrative Procedure Act ordinarily requires when an agency adopts a binding new policy.

Why we believe this will be challenged, and why we believe it will not hold

Our read here is not a hopeful one. It is a legal one.

In an analysis published on May 23, attorneys Cyrus D. Mehta and Kaitlyn Box of Cyrus D. Mehta & Partners PLLC laid out one of the clearest early critiques of the memo, and we agree with the core of it: this memo will be struck down.

The statute itself is the strongest point. INA §245(a) provides that a person who has been lawfully admitted to the United States may apply to have their status adjusted to that of a lawful permanent resident. The word Congress chose was “may.” The word “extraordinary” does not appear in INA §245 anywhere. As Mehta and Box note, reading the single word “may” to carry the weight of “extraordinary” is a substantial leap; and after the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, federal courts no longer defer automatically to an agency’s interpretation of an ambiguous statute. That kind of interpretive stretch is precisely what Loper Bright was designed to scrutinize.

Mehta and Box also flag the selective use of precedent. The memo leans heavily on Matter of Blas, a 1974 BIA decision, for the proposition that adjustment is extraordinary and a matter of grace. It cites Supreme Court decisions like Patel v. Garland for the broader principle that discretionary relief from removal is a matter of grace. What it leaves out is the line of BIA precedent that came after Blas and refined it (Matter of Cavasos in 1980 and Matter of Ibrahim in 1981) both of which held that adjustment of status should generally be granted as a matter of discretion when the applicant qualifies through an immediate relative. The omission is not an oversight.

Add to that the procedural problem. A policy this consequential, issued without notice-and-comment rulemaking, sits on weaker ground than a final rule would. The Administrative Procedure Act gives litigants a path to challenge unlawful agency policy directly.

We are not making predictions, and we are not in the business of telling clients what a federal court will do. But we expect this memo to be challenged through lawsuits and congressional hearings. We expect the challenges to be serious. And we expect a number of them to succeed.

What this means for you, right now

If your adjustment application is already pending, the memo does not stop USCIS from continuing to adjudicate it. What it does do is change the lens through which an officer may now review your case.      It is possible that USCIS may issue a Request      for Evidence asking for      more documentation in support of your application, such as a detailed                personal narrative and other evidence as to why      your application warrants a favorable exercise of discretion.

If you have been preparing to file, you have not lost the option. But the application packet you file now may look different than what you would have filed in April.

If you are in a dual intent category (H-1B, L-1) or if your route to permanent residence is statutorily mandatory rather than discretionary (asylee or refugee adjustment under §209, Cuban Adjustment Act, certain humanitarian provisions), your filing is on different statutory footing. Please talk to us so we can be precise about where you stand.

And if you are someone for whom consular processing is not a real alternative (because of a prior entry issue, because your country of origin is currently subject to immigrant visa restrictions, because you have a child or a spouse or a job that cannot wait abroad for months of uncertainty), we urge you to speak with us.

What we are doing for our clients

We are reviewing every pending adjustment case in our office to understand how this memo may affect our clients. If there is a need to reach out to individual clients, we will reach out to them promptly.

For new and unfiled cases, as always, we are carefully considering the unique circumstances of every case. Our application packages are customized to one’s unique situation, and will address the heightened requirements imposed by the memo.      

For pending cases where federal court may become the right tool, we are preserving every legal issue along the way. A discretionary denial of an adjustment application cannot be directly appealed. But unlawful agency policy—and the unlawful application of that policy to an individual case—can be challenged in federal court under the Administrative Procedure Act and the Due Process Clause. We are noting where those arguments may apply, case by case, so that nothing is lost.

It is also important to note that it is unclear how USCIS may implement this memo in practice. On August 15, 2025, USCIS issued Policy Memorandum 602-0188, which indicated that it would undergo a more rigorous assessment of Good Moral Character for naturalization applicants.  Following the issuance of the memorandum, there was speculation as to how USCIS would implement the memorandum, and whether this would include interviews of applicants’ family members, friends, and neighbors.  To date, there have been no credible reports of these types of interviews taking place.  Our office will continue to monitor how USCIS’ memorandum on adjustment of status is being implemented in practice, and we will immediately notify our clients of any relevant updates.

Where we go from here

Immigration law has been unsettled yet again this week, and it will be unsettled for some time. We will not pretend otherwise. But unsettled is not the same as hopeless, and a policy memorandum issued on the eve of a holiday weekend, without rulemaking, without notice, on contestable statutory ground, is not the same as a change in the law.

The law is still INA §245(a). Your eligibility under that statute did not change on May 21, 2026. The way USCIS may now look at your case, however, did. As needed, we will adjust how we present your case. We slow down where care is needed. We move faster where there is real urgency.

If you have an adjustment of status application pending, or you have been planning one, we would like to hear from you. The first call is for understanding. We will look at where your case stands, what this memo does and does not change for you, and what your best next step is.

Together, every step, on the path to your future.

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