USCIS Issues Clarification of Policy Memo Regarding Discretionary Nature of Adjustment of Status
Background
On May 21, 2026, US Citizenship and Immigration Services (USCIS) issued a Policy Memorandum that claims that Adjustment of Status (“AOS,” a benefit obtained by filing a Form I-485, Application for Adjustment of Status to USCIS) is a benefit granted as a “matter of discretion and administrative grace” and is an “extraordinary” form of relief rather than entitlement — even where statutory eligibility is met. The memo also claims that AOS is an exception to the ordinary consular visa process and should not be used to “circumvent” immigrant visa processing abroad.
The policy memo signals a potentially more restrictive adjudicatory posture, placing increased emphasis on discretionary analysis. However, the scope and practical impact of the memo remains unclear.
Our previous Client Alert discussed the details and the potential impact of this policy memo.
Recent USCIS Statement Appears to Lessen the Impact of the Policy Memo
In an email from a USCIS spokesperson issued to multiple news agencies, USCIS provided the following supplemental guidance: “While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances.”
Current Landscape for Adjustment of Status
USCIS’s position regarding eligibility for AOS remains unclear. We believe that individuals who have maintained employment visa status will largely be eligible for AOS. However, individuals in Parole status, with prior periods of unlawful presence, or with prior criminal issues may continue to receive additional scrutiny, and could be deemed ineligible for AOS. In addition, individuals from countries that are subject to the current travel ban and/or the USCIS processing pause will likely face additional scrutiny as well.
As mentioned in our prior alert, this policy memo from USCIS will likely face legal challenges if it is used to deny an application for AOS for a qualified applicant.
Conclusion
The policy memo provides USCIS with broad discretionary authority to adjudicate AOS applications, and the current landscape for Permanent Residence applications remains unclear. Mintz will provide further updates on this policy memo as they becomes available.
Author
