USCIS to Allow ‘Adjustment of Status’ Only in Extraordinary Circumstances

On May 22, 2026, USCIS announced a new policy memorandum radically changing the agency’s posture toward adjustment of status as a path for US immigration. Under this new policy, USCIS expects most nonimmigrants present in the United States on a temporary visa status to apply for consular immigrant visa processing to immigrate. This requires applicants to return to their home country for interview at a U.S. consulate.  The new memo advises against grants of adjustment absent  “extraordinary” circumstances.

The memo, which takes immediate effect, directs USCIS officers reviewing pending I-485 applications “to consider all relevant factors and information on a case-by-case basis when determining whether an alien warrants this extraordinary form of relief” for any adjustment of status applications . While the memo’s language is ambiguous, it implies that this new policy may not necessarily apply to those in dual-intent nonimmigrant visa statuses like H and L.

This policy announcement is anticipated to draw legal challenges. It remains to be seen how USCIS examiners will implement the policy moving forward. While federal statute confers USCIS wide discretionary authority over adjustment of status applications, the memorandum seems to exceed that authority by imposing a categorical presumption against adjustment of status. By now declaring adjustment of status an extraordinary and disfavored form of relief, the new policy effectively adds a new adverse factor not grounded in the federal statute or its implementing regulations.

In doing so, the memorandum may be challenged as ultra vires to the immigration regulatory framework, which contemplates case-by-case discretionary adjudication without a presumption against granting adjustment of status.

More importantly, this memorandum represents a substantive change to the existing adjudicatory standard. This new policy is therefore subject to challenge as unlawful under the Administrative Procedures Act, as it was adopted without the APA’s required notice-and-comment rulemaking procedure. We therefore predict a likely challenge to this new policy in the coming days and weeks ahead.

For more information, please see the policy memo and the USCIS web announcement.