USCIS Signals Shift Away from Adjustment of Status

On May 22, 2026, the United States Citizenship and Immigration Services (USCIS) issued new guidance emphasizing that adjustment of status (AOS) (the process of obtaining a green card from within the United States) is a discretionary and “extraordinary” form of relief, not the default pathway.

The agency signaled that many nonimmigrant workers may instead be expected to complete the green card process through consular processing abroad, with USCIS evaluating in-country adjustment requests on a case-by-case basis.

This update applies to employers sponsoring foreign national employees for permanent residence and reflects a shift in adjudication approach, not a statutory change.

What Employers Need to Do

• Review green card strategies for foreign national employees, especially those planning to adjust status within the United States.

• Confirm that employees maintain valid underlying visa status (e.g., H-1B, L-1) throughout the green card process.

• Prepare for potential consular processing scenarios, including international travel and work authorization gaps.

• Train HR and immigration teams on increased discretion, case-by-case adjudication, and documentation pitfalls.

• Coordinate closely with immigration counsel to evaluate whether adjustment of status or consular processing is the stronger path.

Overview

USCIS issued policy guidance emphasizing that adjustment of status is discretionary, not guaranteed, and should be treated as exceptional relief. The agency is signaling a stronger preference for consular processing abroad as the ordinary pathway to permanent residence.

The change reflects heightened scrutiny and case-by-case review, rather than eliminating adjustment of status entirely.

Adjustment of Status Reframed

• Adjustment of status is a benefit granted at USCIS discretion, not a right.
• Applicants must demonstrate they merit this “extraordinary” relief, even if they meet statutory eligibility requirements.
• Officers are instructed to evaluate cases using a totality-of-the-circumstances analysis.

Preference for Consular Processing

• USCIS indicates that nonimmigrants are generally expected to complete their stay and pursue immigrant visas abroad.
• Consular processing is framed as the default path, with adjustment as an exception.
• Remaining in the U.S. to pursue adjustment instead of leaving may be treated as a negative discretionary factor.

Increased Scrutiny of Applications

• USCIS will weigh immigration history, status violations, and conduct inconsistent with visa status.
• Factors such as fraud, unauthorized employment, or failure to maintain status may weigh against approval.
• Applicants may need to demonstrate strong positive equities to overcome negative factors.

Dual-Intent Visa Considerations

• Seeking permanent residence is still not inherently inconsistent with dual-intent visas (e.g., H-1B, L-1).
• However, holding a dual-intent visa does not guarantee approval of adjustment of status.
• Each case will still be evaluated individually based on discretionary factors.

Why This Matters

This shift matters because it changes expectations for how foreign national employees can complete the green card process.

For employers, the impact is operational: workforce planning, travel logistics, and immigration timelines may become more complex as more cases are routed through consular processing instead of in-country adjustment.

It also increases uncertainty because eligibility alone is no longer sufficient. Approval depends on discretionary factors that may vary from case to case.

Key Risks for Employers

• Workforce disruption if employees must travel abroad to complete consular processing.

• Increased risk of adjustment-of-status denials based on discretionary factors.

• Greater dependence on maintaining a valid visa status throughout the process.

• Delays and uncertainty tied to consular processing timelines and scheduling.

• Inconsistent outcomes due to case-by-case adjudication and heightened scrutiny.

Additional Information

USCIS has not eliminated adjustment of status as a pathway, and applicants may still file Form I-485 if eligible. However, the agency is signaling that approval will depend on discretionary analysis rather than routine eligibility.

Employers should treat this as a policy-direction change that increases scrutiny and shifts many cases toward overseas visa processing, rather than a formal change to immigration law.

Source References

• USCIS – Press Release (05/22/26)
• USCIS – Policy Memorandum – PM-602-0199 (May 21, 2026)

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