New USCIS Adjustment Of Status Policy Memo: What Applicants And Employers Should Know

In late May, USCIS issued updated policy guidance emphasizing their view that adjustment of status is a discretionary form of immigration relief and does not replace the ordinary consular immigrant visa processing abroad.

Although adjustment of status has always involved some level of discretion, this guidance marks a significant shift from more than 75 years of agency practice in adjudicating green card applications inside the United States.

The updated guidance may affect how certain cases are reviewed and what additional evidence USCIS may request during adjudication. At the same time, there are still significant unanswered questions about how broadly officers will apply this policy in practice. Portions of the guidance will also likely face legal challenges, which could affect the policy’s implementation.

However, there are several important takeaways applicants and employers should understand now.

What is adjustment of status?

The Immigration and Nationality Act (INA) allows certain individuals already in the United States in a temporary immigration status to become lawful permanent residents without departing the country. This process is called adjustment of status (AOS) and is one of the two main ways to obtain a green card, alongside immigrant visa processing at a U.S. consulate abroad.

For eligible applicants in the United States, adjustment of status is generally the final step of the green card process. It is available to individuals who have been sponsored for permanent residence (through employment, investment, family or other statutory categories), have an immigrant visa immediately available, and meet specific statutory requirements. First introduced in 1952 and amended multiple times since, the adjustment of status provision defines who may complete permanent residence inside the United States and who must do so through consular processing.

This statutory framework remains in place; the new USCIS policy guidance focuses instead on how officers should exercise their discretion in deciding adjustment of status applications.

FURTHER READING: What is adjustment of status? Process, details and information

Adjustment of status remains available, with updated discretion guidance

The key point applicants should understand is that adjustment of status has not been eliminated.

Section 245 of the INA still authorizes adjustment of status for eligible applicants physically present in the United States, and the regulations and existing USCIS Policy Manual provisions governing eligibility remain in place. The new memorandum does not create a new statutory ineligibility category or direct officers to categorically deny adjustment applications; USCIS must still adjudicate eligible applications under existing law.

This policy memo focuses on applications filed under INA 245 where the applicant could instead seek an immigrant visa abroad. It does not cover non-discretionary adjustment provisions or other statutory adjustment mechanisms outside section 245. In other words, the new guidance targets a defined subset of adjustment cases, rather than every path to permanent residence inside the United States.

What is changing is how officers are instructed to exercise their discretion. Historically, USCIS officers followed longstanding agency and Board of Immigration Appeals precedent recognizing that favorable discretion should ordinarily be exercised where applicants are eligible and do not present significant adverse factors such as fraud, criminal conduct or serious immigration violations.

The new memorandum shifts this framework.

It instructs officers to conduct a broader evaluation of each applicant’s immigration history, emphasizes consideration of negative factors (including status violations or conduct inconsistent with the purpose of the applicant’s original nonimmigrant entry), and suggests that officers may consider why an applicant chose adjustment of status rather than consular processing.

For HR teams, employers sponsoring foreign talent and foreign nationals already in the United States, the practical takeaway is straightforward: adjustment of status remains available, but officers have been instructed to scrutinize discretionary factors more closely. The statute has not changed, but how cases are reviewed in practice may shift, and further agency guidance or litigation may clarify the scope of this policy.

What USCIS may focus on

The policy memo suggests that USCIS officers may place greater emphasis on  an applicant’s overall immigration history and reasons for seeking adjustment in the United States rather than through consular processing abroad. It has already been reported that officers are issuing Requests for Evidence (RFEs) and asking questions at interviews about why applicants did not apply for an immigrant visa at a consulate.

The memo specifically instructs officers to consider the following as potential adverse factors in the discretionary analysis:

• Prior immigration violations
• Periods of unlawful presence
• Unauthorized employment
• Prior fraud or misrepresentation concerns
• Criminal history
• Manner of entry into the United States
• Applying for adjustment of status in a category where consular processing is available

At the same time, officers are expected to also weigh positive factors. In this framework, officers may look at the full scope of an applicant’s immigration history, personal background, family ties, employment history, community involvement and overall contributions when deciding whether to approve an application as a matter of discretion.

Examples of positive factors may include:

• Strong family ties in the United States
• Long-term residence and community integration
• Consistent employment and tax compliance
• Evidence of good moral character
• Professional accomplishments and specialized skills
• Contributions that may provide an economic or national interest benefit to the United States

The policy guidance further suggests that simply avoiding negative factors may not, by itself, be sufficient in some cases. In practice, this may lead to more Requests for Evidence (RFEs) seeking documentation that goes beyond the standard eligibility requirements for adjustment of status.

Evidence applicants should consider gathering

Applicants should begin organizing documentation that demonstrates their compliance with U.S. laws and their positive ties and contributions to the United States.

Examples may include:

• Tax returns and IRS transcripts
• Employment verification letters
• Proof of long-term residence in the United States
• Evidence of family ties
• Records of community involvement
• Educational credentials
• Proof of caregiving responsibilities
• Documentation showing hardship to qualifying family members if the application were to be denied
• Evidence of volunteer work, charitable involvement or community service
• Letters of recommendation or support from employers, colleagues, religious leaders or community members
• Evidence of professional achievements, licenses, certifications or specialized training
• Documentation demonstrating rehabilitation, counseling or other mitigating factors, where applicable

For some applicants, these types of materials may become increasingly important when responding to a request for evidence (RFE) or preparing for an adjustment interviews.

USCIS officers may also ask additional questions during interviews about why applicants chose adjustment of status instead of immigrant visa processing abroad, whether they maintained prior immigration status and whether there were factors preventing consular processing. Applicants should be prepared to address these topics clearly and consistently.

Workforce and compliance considerations for employers

Employers sponsoring foreign national workers should monitor developments related to the adjustment of status policy memo closely.

Increased discretionary review could affect adjustment timelines, travel planning, work authorization continuity and long-term workforce retention strategies. Employers may also need to assist employees in gathering supporting evidence related to employment history, performance, compensation and business necessity.

A key compliance point is the importance of maintaining an underlying nonimmigrant status wherever possible. If an adjustment of status application is denied and the applicant does not have valid underlying nonimmigrant status, they may be placed in removal proceedings. Employers and applicants must understand that relying solely on a pending adjustment application and its related employment authorization card carries this risk when the person is in a period of authorized stay rather than a separate nonimmigrant status.

In some situations, applicants and employers may also need to evaluate whether consular immigrant visa processing abroad could be a strategic alternative depending on how this policy is ultimately implemented.

For institutions that rely heavily on foreign talent, proactive planning will become even more important if adjudication standards tighten.

Prepare proactively and strategically

Many practical questions about this memo remain unanswered.

The memo is framed as general policy guidance, and it does not address every case-specific situation that may arise in the adjudication process. It also does not clearly state if this policy will be retroactively applied to applications for adjustment of status already pending.

Accordingly, additional agency clarification will be important in determining how the memorandum is applied in practice. Litigation could also affect the ways in which the policy will be implemented.

For now, this development should be viewed as informational only, and the best approach continues to be to focus on proactive preparation.

Applicants should ensure filings are accurate, consistent and thoroughly documented. Cases involving prior immigration complications or potential discretionary concerns may benefit from a more proactive strategy at the outset. In certain cases, applicants may also benefit from evaluating alternative immigration strategies, backup nonimmigrant status options or potential consular processing pathways as part of longer-term planning.

The attorneys at Garfinkel Immigration Law Firm are continuing to monitor implementation of this policy closely and will provide additional updates as further guidance becomes available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.