On May 22, 2026, U.S. Citizenship and Immigration Services announced a significant new policy concerning Adjustment of Status—the process that allows certain eligible individuals already in the United States to apply for lawful permanent residence without completing immigrant visa processing at a U.S. consulate abroad.
The announcement generated immediate concern because USCIS stated that individuals temporarily in the United States who want a green card generally should return to their home countries to apply, except in “extraordinary circumstances.”
The underlying policy memorandum, PM-602-0199, is somewhat more nuanced.
The memorandum does not repeal Adjustment of Status, amend INA §245, or establish a new statutory eligibility requirement. Instead, it directs USCIS officers to place renewed emphasis on something already contained in the statute and case law: for most applicants, Adjustment of Status is not merely an eligibility determination. It also requires a favorable exercise of discretion.
That distinction matters.
What Does the May 2026 USCIS Memo Actually Say?
INA §245(a) provides that the status of an eligible applicant “may” be adjusted, in the Secretary’s discretion, if the statutory requirements are satisfied. The new memorandum relies heavily on older Board of Immigration Appeals and federal court decisions describing Adjustment of Status as a matter of administrative grace and, in some decisions, an “extraordinary” remedy.
USCIS then applies that concept to modern Adjustment of Status adjudications.
Under the memorandum, officers are instructed to consider the totality of the circumstances and weigh positive and negative factors before exercising discretion favorably. Relevant considerations expressly identified by USCIS include an applicant’s family ties, immigration history and status, moral character, compliance with immigration laws, prior fraud or false testimony, conduct inconsistent with the purpose of a prior nonimmigrant admission or parole, and other relevant circumstances.
One particularly important part of the memorandum concerns the applicant’s immigration history.
USCIS states that failure to comply with the terms of a nonimmigrant admission or parole—and failure to depart when expected—can be highly relevant to the discretionary analysis, particularly where the applicant intended to reside permanently in the United States and could have pursued the normal immigrant visa process abroad.
The memorandum also states that adverse factors may require “unusual or even outstanding equities” to overcome them and that merely having no adverse factors does not, by itself, establish those equities.
Does This Mean Everyone Must Leave the United States to Obtain a Green Card?
No – not based on the memorandum itself.
This is where it is important to distinguish the USCIS press release from the actual policy memorandum.
The May 22 announcement used sweeping language suggesting that a temporary visitor who later wants a green card “must return” to the person’s home country except in extraordinary circumstances.
The memorandum itself does not establish a categorical rule requiring every eligible applicant to leave the United States.
Instead, it directs officers to make individualized discretionary determinations. It specifically recognizes exceptions, including nonimmigrant classifications permitting dual intent and immigrant categories for which Adjustment of Status is the only pathway to permanent residence. It also expressly acknowledges that pursuing Adjustment of Status is not inconsistent with maintaining a dual-intent nonimmigrant status.
DHS subsequently clarified publicly that the policy was not intended as a blanket requirement that all applicants leave the country and that individual cases would continue to be evaluated on their particular circumstances.
Accordingly, applicants should not assume that the May memorandum automatically requires them to abandon a pending I-485 or leave the United States for consular processing.
What Has Actually Changed?
The most practical change is not necessarily who can file Form I-485. It is how carefully applicants and their attorneys should address discretion.
Historically, many straightforward Adjustment of Status cases have focused primarily on three questions: Is the applicant statutorily eligible? Is an immigrant visa available? Is the applicant admissible?
The May memorandum makes clear that USCIS wants its officers to ask another question:
Even if the applicant is eligible, does the applicant warrant a favorable exercise of discretion?
That means an I-485 case should no longer be approached simply as a collection of forms and required supporting documents.
An applicant’s entire immigration history may matter more: how the person entered the United States, what was represented when obtaining the visa or seeking admission, whether status was maintained, whether unauthorized employment occurred, when circumstances changed, and whether the person’s subsequent conduct was consistent with the purpose of the original admission.
Applicants in Single-Intent Nonimmigrant Status May Require More Careful Analysis
The memorandum deserves particular attention where an applicant entered in a classification that generally requires temporary intent, such as certain visitors or students, and later decided to pursue permanent residence.
That does not mean that every B-1/B-2 or F-1 holder who later becomes eligible for Adjustment of Status should be denied.
Life circumstances legitimately change. A student may later receive an employment opportunity. A visitor may develop a bona fide relationship and marry a U.S. citizen. An individual’s circumstances may change months or years after admission.
But the timing and facts now deserve careful examination.
For example, there is an important difference between a person whose circumstances genuinely changed after lawful admission and a person whose evidence suggests that the individual entered under a temporary classification while already intending to remain permanently.
The latter situation may raise not only discretionary concerns under the new memorandum but potentially separate questions concerning misrepresentation.
Dual-Intent Applicants Are Different
The memorandum itself recognizes dual-intent classifications.
For applicants maintaining a status such as H-1B or L-1, seeking permanent residence is not inherently inconsistent with the underlying nonimmigrant classification. USCIS specifically states that applying for Adjustment of Status is not inconsistent with simultaneously maintaining a nonimmigrant status that permits dual intent.
However, the memorandum also cautions that maintaining dual-intent status does not automatically guarantee a favorable exercise of discretion. The applicant’s complete record still matters.
How Should Applicants Prepare After the May 2026 Memo?
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The best response is not panic or automatically choosing consular processing. It is better preparation.
Before filing Form I-485, applicants should carefully review their immigration history and identify both favorable and potentially adverse discretionary factors. Depending on the case, relevant favorable evidence may include longstanding family relationships in the United States, compliance with immigration requirements, employment history, payment of taxes, education, community involvement, caregiving responsibilities, and other evidence demonstrating positive equities.
More importantly, applicants should not try to manufacture an “extraordinary circumstance” merely because that phrase appeared prominently in USCIS’s announcement.
The memorandum requires a totality-of-the-circumstances analysis. The objective should therefore be to present the applicant’s actual history accurately and persuasively—not to force every case into a newly invented “extraordinary circumstances” category.
Where there is a potentially negative factor, it may be appropriate to address it directly rather than hoping the officer will overlook it.
Maintaining Nonimmigrant Status May Be More Important Than Before
Where possible, applicants should also carefully consider whether they can continue maintaining their underlying nonimmigrant status while the I-485 remains pending.
A pending I-485 can provide a period of authorized stay for certain purposes, but that is not necessarily the same thing as maintaining the applicant’s underlying nonimmigrant status.
The May memorandum expressly focuses on compliance with the terms of nonimmigrant admission and an applicant’s immigration history.
Accordingly, applicants—particularly students and others in non-dual-intent classifications—should obtain individualized advice before stopping school, employment, or other activities required to maintain their existing status merely because an I-485 has been filed.
What Have We Seen Since the Memo Was Issued?
As of early August 2026, the situation remains developing.
Importantly, we have not seen evidence that Adjustment of Status has simply stopped or that USCIS is categorically requiring every eligible I-485 applicant to leave the United States and complete consular processing.
A Practical Approach Going Forward
For people considering Adjustment of Status after May 22, 2026, the more prudent approach is to evaluate the case before filing rather than assuming that statutory eligibility alone will carry the application.
Applicants should understand their underlying nonimmigrant status, review prior visa applications and entries, identify any periods of status violation or unauthorized employment, consider whether their conduct is consistent with representations previously made to the government, and develop evidence of favorable discretionary factors where appropriate.
For applicants with complicated immigration histories, the choice between Adjustment of Status and consular processing may also require a broader analysis. Leaving the United States can itself create significant immigration consequences in some cases, including potential inadmissibility issues. An applicant should therefore not depart the United States simply because of the May 2026 memorandum without first understanding the consequences of departure and whether consular processing is actually the safer legal strategy.
The central lesson from PM-602-0199 is that Adjustment of Status should now be approached as both an eligibility case and a discretionary case.
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About the Author
Jennifer Hsiao Wei Tsai is a Nevada and Arizona licensed attorney with a practice focused on immigration law, estate planning, trust administration, probate, and business formation.
Last Updated: Mon Aug 3, 2026
Disclaimer: This article is provided for general informational and educational purposes only and does not constitute legal, tax, or financial advice. The information contained in this article is current as of the date of publication and may become outdated due to changes in statutes, regulations, agency policies, court decisions, filing procedures, or other legal developments. Readers should independently verify current law and consult with a qualified attorney regarding their specific circumstances before relying on any information contained herein. Reading this article does not create an attorney-client relationship.