Five Key Points on USCIS's New Adjustment of Status Policy: In-Country Adjustment Treated as Discretionary Relief

On May 21, USCIS issued a major policy shift on adjustment of status (AOS) within the United States: foreign nationals adjusting status and applying for a green card in the U.S. will be treated as a matter of administrative grace, granted only under 'exceptional circumstances'; most nonimmigrants will need to return to their home countries and apply for an immigrant visa through consular processing.

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U.S. Citizenship and Immigration Services (USCIS) announced a new change today targeting individuals applying for permanent residence within the United States, rather than those applying at U.S. consulates abroad. The agency has adjusted the way it processes these adjustment of status applications. For many applicants, this policy represents a significant shift in practice. However, the new policy memorandum notes that certain categories of adjustment applicants may be less affected—particularly H-1B and L-1 workers and their dependents. This is because these visa categories have special regulations that allow them to have 'dual intent.'

For decades, USCIS has followed a fixed process for handling adjustment of status. In light of this sudden change, here are five key points and answers to frequently asked questions:

1. Adjustment of status is now granted only under 'exceptional circumstances.'

USCIS issued a new memorandum. The memorandum requires that foreign nationals seeking to adjust status to permanent resident (green card) generally must do so abroad through the U.S. Department of State's consular process. They should not remain in the United States to adjust status. The new guidance states that adjustment of status will serve as a discretionary administrative grace of the U.S. government, reserved only for 'exceptional circumstances.'

However, the USCIS memorandum notes that the new policy may have less impact on nonimmigrant categories that allow 'dual intent' (such as H-1B, L-1, and their H-4 and L-2 dependents). For these visa holders, applying for adjustment of status does not conflict with maintaining their short-term visa status. Dual intent means that a person can lawfully intend to reside temporarily in the United States as an H-1B or L-1 worker while also intending to apply for permanent residence in the future. Dual intent is a well-established concept in business immigration law and has had decades of support in federal law and regulations.

However, the USCIS policy memorandum also cautions that merely maintaining H-1B or L-1 dual intent status is not by itself sufficient to guarantee a favorable adjudication by USCIS. USCIS officers must still weigh whether to approve the adjustment of status application. Nevertheless, adjustment of status applications have always fallen within the agency's discretionary authority.

2. Nonimmigrants are expected to leave the United States and apply for an immigrant visa abroad.

Under this policy, people staying in the United States on short-term visas (including students, some short-term workers, or tourists) who wish to obtain a green card may need to return to their home country to apply. They can no longer use a short-term stay as a stepping stone to permanent residence.

3. Case-by-case review is retained.

USCIS requires its officers, when determining whether an individual's circumstances are sufficiently 'exceptional' to permit adjustment of status within the United States, to consider all relevant factors and information based on the specific case. The memorandum does not list specific 'exceptional circumstances' but instead directs officers to refer to existing USCIS policy and weigh all relevant factors, including:

• Violations of immigration law

• Fraud or misrepresentation

• Whether the foreign national's entry or parole application violated laws, regulations, or policy

• Conduct after entry

• Failure to depart as expected

• Family ties, immigration status and history, and good moral character

The memorandum emphasizes that a foreign national's failure to comply with the conditions of nonimmigrant admission or parole, and failure to depart on time, are 'highly relevant' negative factors.

4. The memorandum does not clearly define 'exceptional circumstances.'

The policy memorandum does not provide a standalone definition, checklist, or specific examples to explain what circumstances qualify as 'exceptional circumstances' for adjustment of status within the United States. Instead, the memorandum characterizes adjustment of status itself as an 'extraordinary' remedy. It then directs officers to conduct a broad, totality-of-the-circumstances discretionary analysis during case-by-case review.

5. The stated goals are to reduce unlawful overstays and reallocate USCIS resources.

USCIS states that requiring applicants to apply from their home countries can reduce the risk of denied applicants unlawfully remaining in the United States. It can also free up agency resources to focus on other priorities, such as issuing visas for victims of crime and human trafficking, processing naturalization applications, and other cases. The agency does not view this as a new rule but rather as enforcement of long-standing immigration law and court decisions.

Frequently Asked Questions

While we await further guidance from USCIS and practical experience with the new policy, here are some common questions and answers.

1. Can I still file an I-485 adjustment of status application under the new policy?

Yes, individuals can still file new I-485 applications with the agency. This new guidance memorandum is directed to USCIS officers responsible for adjudicating (approving or denying) I-485 applications. Its core content instructs officers to treat adjustment of status as 'a special discretionary remedy.' If an applicant cannot demonstrate unusual favorable factors, officers may deny the application. However, the memorandum does not instruct the agency to stop accepting or receiving new I-485 application filings.

This is an important distinction: under immigration law, the right to file Form I-485 is governed by statute (INA Section 245) and regulations (8 CFR Section 245). These provisions require applicants to meet certain eligibility conditions. For applicants who satisfy these basic requirements, a mere policy memorandum cannot override their statutory right to apply.

2. How does the new policy affect pending I-485 applications?

The memorandum is framed as a discretionary guidance document. It guides officers on how to exercise discretion when adjudicating adjustment of status applications. Because favorable discretion is assessed at the time of final adjudication, this higher standard applies to all I-485 applications not yet approved, regardless of when they were filed. This is also consistent with the general principle in the USCIS Policy Manual that, at final adjudication, USCIS officers must determine based on discretion at that time whether an immigrant visa is available and whether the applicant meets all eligibility requirements, rather than looking only at the circumstances at the time of filing.

It is worth noting that the memorandum does not specifically establish a 'prospective only' exemption for already-filed cases. This stands in sharp contrast to other recent USCIS policy changes. For example, the August 2025 update to the Child Status Protection Act (CSPA) age calculation rules explicitly stated that it 'applies only to applications filed on or after the effective date.' The absence of a non-retroactive 'grandfather clause' in this new memorandum strongly suggests that it will apply to I-485 applications currently pending.

I-485 applicants may face stricter scrutiny from USCIS. For example, the agency may issue more Requests for Evidence (RFEs) or ask more questions at interviews about why adjustment of status within the United States is more appropriate than consular processing in their particular case. However, for dual intent visa holders, this scrutiny may be much less stringent.

3. Will an approved Advance Parole be affected by this new policy?

The memorandum does not prohibit travel using Advance Parole, nor does it prohibit adjudication of I-131 Advance Parole applications. However, if the I-485 application is denied, any previously approved Advance Parole document will likely be revoked at the same time.

For individuals who do not hold dual intent visas, the new policy may increase certain risks. If an applicant travels using Advance Parole, they must be prepared to demonstrate 'unusual or even outstanding favorable factors' at the final adjudication of the I-485 application. This is a much higher threshold than before. Previously, for eligible applicants, adjustment of status was regarded as a relatively routine process.

4. Will the new policy affect my employment authorization document (EAD) based on a pending I-485, or my use of an approved EAD?

New I-485 applicants can still file associated EAD applications. However, it is currently unclear whether the new policy will affect EAD processing times, whether the EAD will ultimately be approved, or, if approved, how long the EAD will be valid. The new policy itself will not cause an already approved EAD to be revoked. However, if USCIS denies the pending I-485 application, the EAD approved based on that I-485 application will likely also be revoked at that time.

5. Is this new policy likely to face legal challenges in federal court?

Given the breadth of this policy change, the central role adjustment of status has played in immigration procedures for decades, and the fact that the new rule will apply to USCIS's massive backlog of pending adjustment applications, related legal challenges are almost inevitable. Federal courts may consider numerous issues. For example, does the retroactive application of the memorandum to already-filed cases raise due process or reliance interest concerns? And is the policy consistent with prior actions by Congress and the judiciary?

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This article is translated from an article by the established law firm Quarles. Below is the full text of the USCIS memorandum.

Subject

Adjustment of status is a matter of discretion and administrative grace. It is an extraordinary remedy that allows applicants to bypass the regular consular visa processing procedure.

Purpose

This memorandum is intended to remind immigration officers and the public that adjustment of status under Section 245 of the Immigration and Nationality Act (INA) falls within the realm of discretion and administrative grace. It was not designed to replace the regular consular immigrant visa processing procedure. U.S. Citizenship and Immigration Services (USCIS) reaffirms this long-standing position. As a general policy, we will faithfully enforce the relevant laws based on this understanding.

Legal Authority

• Immigration and Nationality Act Section 103(a)(3); 8 U.S.C. Section 1103(a)

• Immigration and Nationality Act Section 245(a); 8 U.S.C. Section 1255(a)

Background and Analysis

It has long been the principle that not every foreign national who meets all eligibility requirements for adjustment of status will automatically be granted adjustment. Because under most provisions, approval of adjustment of status is merely 'a matter of discretion and administrative grace.' The Board of Immigration Appeals (BIA) has consistently characterized adjustment of status as an 'extraordinary' form of relief. It exempts applicants from the regular immigration process. The BIA has also clearly stated that adjustment of status 'was not intended to replace the regular consular visa issuance process, nor should it be granted in cases that do not qualify.' The Supreme Court has also routinely noted that adjustment of status is a matter of administrative grace. Lower courts have likewise described adjustment of status as an 'extraordinary act' of administrative grace. Courts have repeatedly described adjustment of status as an extraordinary remedy.

The nature of the adjustment of status remedy is best understood as an extraordinary measure. Because through it, foreign applicants can obtain lawful permanent residence without leaving the United States, thereby bypassing the prescribed regular consular visa process. The BIA also continues to maintain that adjustment of status 'was not intended to replace the regular consular visa issuance process.'

Congress has established a detailed statutory framework. This framework governs and limits adjustment of status for foreign nationals within the United States. Congress has entrusted the administration of the legal immigration system to the Secretary of Homeland Security and the Department of Homeland Security (DHS). Therefore, we must exercise this authority with extreme care and always with the national interest in mind. Under this delegation, USCIS exercises the administration of the legal immigration system on behalf of the Secretary. When USCIS makes a determination in the adjustment of status process, it constitutes the Secretary's non-reviewable 'decision or action.' This is also a 'judgment regarding the granting of relief' under the legal framework.

Congress has imposed strict limits on foreign nationals who apply for adjustment of status while in the United States, and these limits do not apply to foreign nationals who apply for immigrant visas and enter from outside the United States. Most foreign nationals seek discretionary adjustment of status under INA section 245(a). That provision states that if they are in the United States after being "inspected and admitted or paroled" and are eligible for permanent residence in the United States, the Secretary "may, in the Secretary's discretion," adjust their status. Accordingly, foreign nationals who are currently in the United States but were not inspected, admitted, or paroled generally are not eligible to adjust status.

Even if a foreign national has been inspected and admitted or paroled, Congress has imposed additional limits on their eligibility to adjust status. These limits do not apply to foreign nationals who apply for immigrant visas abroad and enter, which further indicates that Congress prefers foreign nationals to immigrate through the regular overseas consular processing procedure. INA section 245(c) lists multiple categories of foreign nationals who are expressly barred from applying for adjustment of status under INA section 245(a) unless a very limited exception applies; this bar applies even if they were previously properly inspected and admitted or paroled.

Approval of adjustment of status under INA section 245(a) is discretionary. The foreign national bears the burden of showing why USCIS should make a favorable decision. DHS evaluates, on a case-by-case basis and in light of the specific circumstances, whether the applicant meets the requirements of "discretion and administrative grace."

Apart from certain exceptions for specific foreign nationals, most foreign nationals seeking adjustment of status under INA section 245 fall into two distinct groups: those who were inspected and admitted, and those who were inspected and paroled under INA section 212(d)(5)(A).

Foreign nationals may be paroled into the United States "temporarily" based on "urgent humanitarian reasons or significant public benefit." Once the Secretary of Homeland Security determines that "the purpose of the parole has been accomplished," these parolees should depart the United States or return to the Department of Homeland Security.

Foreign nationals may enter the United States as nonimmigrants. DHS will specify the "time and conditions" of their admission. This is to ensure that these foreign nationals "will depart the United States" when the period expires or if they fail to maintain their admission status.

When Congress established the nonimmigrant admission and parole processes, it made clear that foreign nationals should depart the United States after the purpose of their admission or parole has been achieved. Ordinarily, when a nonimmigrant or parolee fails to depart as required and instead seeks adjustment of status, this contravenes congressional expectations. Of course, USCIS also acknowledges that exceptions exist, such as nonimmigrant categories with dual intent and immigrant categories in which permanent resident status can only be obtained through adjustment of status. Although foreign nationals who have been inspected and admitted or paroled may apply for adjustment of status, granting such applications is generally atypical, because Congress intended that foreign nationals depart after achieving the purpose for which they sought parole or nonimmigrant admission from DHS.

Except in very limited circumstances, the current legal framework indicates that Congress expects foreign nationals who have been paroled into the United States or admitted as nonimmigrants to depart, rather than to seek adjustment of status. If such foreign nationals wish to reside permanently in the United States, Congress generally expects them to pursue an immigrant visa abroad and enter on that basis. Although these foreign nationals may otherwise be eligible for adjustment of status, they have contravened this expectation. They are attempting to bypass the regular consular immigrant visa process, and this is often accompanied by violations of U.S. immigration law. These are adverse factors. A foreign national may need to "show unusual or even outstanding favorable factors" to offset these adverse effects. The mere absence of adverse factors does not by itself establish such unusual or outstanding favorable factors.

Guidance

If, under the immigrant category on which the foreign national bases the adjustment application, the individual could have obtained a visa through consular processing, then immigration officials, in deciding whether to grant a favorable exercise of discretion, must consider the consistent view of the courts and the BIA: adjustment of status is an extraordinary remedy to the regular immigrant visa process and an act of administrative grace.

In cases where USCIS has discretion, officials must remember that they are required to consider all relevant factors and information in light of the totality of the circumstances. For example, existing guidance requires officials to consider: whether the applicant has violated U.S. immigration law or the conditions of the status held; whether there is current or past fraud or false testimony in dealings with USCIS or any government agency; whether the foreign national violated the laws, regulations, and policies in effect at the time when applying for admission or parole; and whether the foreign national's conduct after admission as a nonimmigrant or parolee was consistent with the purpose of that status or parole, or with the representations made to consular or DHS officials when applying for a visa, admission, or parole.

A foreign national's failure to comply with the conditions of nonimmigrant admission or parole, and failure to depart as expected, are highly relevant factors in the adjudicative analysis. This is especially so when such failure is connected to the foreign national's intent to reside permanently in the United States and the foreign national could have achieved that goal through the normal immigrant visa process. USCIS reminds its officials that applying for adjustment of status is not inconsistent with simultaneously maintaining nonimmigrant status in a dual intent category.

Given the significant privileges enjoyed by lawful permanent residents, USCIS reminds officials that they must consider and weigh all relevant evidence in the record. Officials must determine, based on the totality of the circumstances, whether the foreign national is suitable for permanent residence and whether granting the application would serve the best interests of the United States. Adjudicators must weigh all positive and negative factors. These factors include family ties, immigration status and history, the applicant's moral character, and any other relevant factors that bear on whether to exercise favorable discretion for the foreign national.

USCIS reminds officials that when denying a benefit application, they must issue a denial notice and state the specific reasons for the denial in writing. If the denial is based on an unfavorable discretionary determination, the denial notice must include an analysis. That analysis must list the positive and negative factors considered and explain why the negative factors outweigh the positive ones.

Based on the long-standing and consistent view that adjustment of status is an extraordinary act of administrative grace and is not intended to replace the regular consular immigrant visa process, USCIS will carefully review the various adjustment of status pathways and specific applicant populations. USCIS may issue specific policy guidance for particular adjustment of status categories or populations. This will help officials identify which applications merit this administrative grace and which do not.

Purpose

This policy memorandum is intended solely to provide guidance to USCIS personnel in the performance of their official duties. It does not deprive them of their discretion in making adjudicative decisions. No individual or other party may rely on this memorandum, in removal proceedings, litigation with the United States, or in any other form or manner, to create any legally enforceable substantive or procedural right or benefit.