Immigration
USCIS Policy Shift on Adjustment of Status Sparks Controversy and Uncertainty
By Buchanan Attorneys Khushbu Patel and Dilip Patel
In a significant development, the United States Citizenship and Immigration Services (USCIS) announced a new policy on May 22, 2026, that characterizes adjustment of status as “extraordinary relief,” effectively permitting applicants to bypass the traditional consular visa process in certain circumstances. This policy memorandum (PM-620-1099) marks a notable departure from longstanding practices.
Historical Context and Policy Background
Historically, there was an understanding — supported by legislative history and court interpretations — that foreign nationals seeking permanent residency in the U.S. should generally not be required to leave the country unless extraordinary circumstances exist. Over decades, Congress and the courts have expanded the scenarios under which adjustment of status is available, emphasizing family reunification, employment, and humanitarian considerations.
Traditionally, USCIS and its predecessor agencies exercised discretion based on a variety of factors, including the applicant’s ties to the U.S., moral character, and overall equities. The new policy, however, aims to shift the focus toward a broader assessment of “totality of circumstances,” potentially limiting the exercise of discretion and emphasizing the importance of applying for immigrant visas abroad when feasible.
Details of the New Policy and Its Scope
The May 22 memo applies specifically to adjustment of status applications based on family, employment, diversity visas, special immigrant categories (EB-4), trafficking and crime victims, asylees, and certain parolees are considered discretionary and hence subject to the new policy.
USCIS directs officers to evaluate all relevant factors — adverse and positive — when exercising discretion. This includes weighing violations of law, fraud, misconduct, and attempts to circumvent the normal consular process against positive factors such as family ties, community integration, moral character and economic contributions. The policy emphasizes that applicants must demonstrate “unusual or outstanding equities” to offset any adverse circumstances.
Implementation and Potential Rollback
Since the policy’s release, reports have surfaced indicating inconsistent implementation on the ground. Some USCIS field offices are reportedly no longer asking questions related to the memo during interviews, and approvals have been granted in cases where interview questions about the policy were posed.
Further, recent press reports suggest that USCIS may be rolling back the policy, with a spokesperson stating that the memo “will not prevent any alien from obtaining a green card who legitimately and properly qualifies.” However, no official clarification has been issued.
Legal and Practical Implications
The policy’s emphasis on discretion and totality of circumstances introduces a new layer of complexity into the adjustment process. Immigration officers are instructed to consider factors such as violations, fraud, misconduct, and attempts to avoid consular processing as adverse, while family ties and economic contributions are viewed favorably. This shift could lead to increased requests for additional evidence, denials, and interviews centered on these discretionary factors.
Practitioners advise clients to prepare documentation highlighting positive discretionary factors—such as family relationships, community involvement, and economic contributions—while being prepared to address adverse factors. If an application is denied, options include seeking a motion to reopen or reconsider, although the denial itself cannot typically be appealed.
Impact on Specific Client Populations
The policy also raises concerns about its implications for various categories of applicants. For instance, individuals who relied solely on an adjustment-based employment authorization document (EAD) and have not maintained nonimmigrant status may face higher scrutiny. The policy highlights the importance of maintaining lawful status or, at minimum, considering alternative nonimmigrant statuses with dual intent, such as H-1B, to reduce risks.
Moreover, the memo’s focus on the totality of circumstances may disadvantage applicants with prior violations or misconduct, especially if adverse factors outweigh positive equities. This could negatively affect those with criminal histories or past immigration violations.
Broader Policy and Legislative Considerations
The new approach appears to align with congressional intent to limit adjustment of status within the U.S., particularly for categories with strict nonimmigrant intent or departure requirements. Still, it is a departure from the historically broad discretion granted to USCIS officers and may raise questions about consistency and fairness.
Lawmakers and advocacy groups are closely monitoring USCIS’s implementation, with some calling for congressional oversight and legislative amendments to clarify or limit the policy’s scope.
Conclusion: A Time of Uncertainty
The May 22 policy memorandum signifies a potential paradigm shift in how adjustment of status cases are adjudicated. While USCIS has asserted that the policy is consistent with congressional intent and legal principles, the lack of official guidance and reports of inconsistent application have created uncertainty.
For questions or concerns relating to the new policy memo, it is important to consult an immigration attorney.
Tampa Bay area welcomes Attorney Khushbu Patel
We are pleased to introduce Attorney Khushbu Patel to our readers. Khushbu is an experienced immigration attorney and has recently joined the Buchanan Ingersoll & Rooney law firm to work with Dilip Patel, who writes our immigration articles. Khushbu brings with her a wealth of knowledge in immigration law and a passion for helping individuals and families navigate the complexities of the immigration process.
Khushbu was born and raised in Richmond, Va., where she developed a strong foundation in legal principles and a deep commitment to serving her community. She earned her law degree from a respected institution, Rutgers Law School, where she developed a keen understanding of the challenges faced by immigrants in the United States.
She married in April 2024 and recently moved to the Tampa area with her husband, who works in commercial contracting. Khushbu’s move to Tampa not only marks a new chapter in her personal journey but also allows her to contribute her expertise to the growing community in the region. Fluent in Gujarati, she is an active member of the BAPS Swaminarayan Mandir in Thonotosassa, Florida.
We are thrilled to welcome Khushbu to our readers and look forward to the invaluable information she will provide to them in the field of immigration law.